[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2257-S2303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  Mr. MERKLEY. Let's turn to Planned Parenthood Association of Utah v. 
Herbert. In August of 2015, Gary Herbert, Utah's Republican Governor, 
ordered the State to strip $272,000 in Federal funding from the Planned 
Parenthood Association of Utah in response to a series of highly edited 
videos that alleged that Planned Parenthood clinics were selling fetal 
tissue, even though Utah's clinics were not in the video then.
  By the way, those videos had been found to be completely doctored, 
completely inaccurate, completely misleading. But despite the fact that 
the videos were not authentic and despite the fact that they didn't 
have any bearing in Utah, Governor Herbert stood by his ruling to carve 
out and take away funding from Planned Parenthood. So Utah's Planned 
Parenthood Association filed for a restraining order against the State, 
saying that the State was not acting justly, so they asked the Court to 
protect them from unjust action.
  In spite of his continued claim that stripping the funding was not to 
punish the organization for its stance on abortion but in response to 
the videos--the doctored, inauthentic, discredited videos--the Governor 
eventually admitted, while responding to Planned Parenthood's motion 
for a preliminary injunction, that defense of the videos involved 
different affiliates--not the ones in Utah--that there was not even an 
accusation that Planned Parenthood in Utah had broken the law--not even 
an accusation. The organization didn't participate in programs that 
provided fetal tissue for research, so it was completely disconnected 
from the operation of Planned Parenthood in that State.
  The background of this is that medical institutions have utilized 
fetal tissue and there have been charges related to the preparation of 
that tissue. We could have a whole debate, and we should bring in the 
medical professionals to understand the details. But in this case, it 
is irrelevant to have that debate because Planned Parenthood in Utah 
wasn't part of the fetal tissue research organization. So we don't have 
to argue over whether fees they have charged for repairing the tissue 
were fair or unfair because they didn't repair anything. This was all 
about something else, which was the Governor's decision to launch an 
attack on Planned Parenthood, punish Planned Parenthood for its 
constitutionally protected advocacy.
  This issue is one which I am sure we will be talking about for years 
to come. But in the context of the law, a three-judge panel of the 
Tenth Circuit granted a preliminary injunction on Planned Parenthood, 
concluding that Utah's Planned Parenthood was operating lawfully and 
that the Governor's personal opposition to abortion as a motivation for 
blocking Federal funds and targeting the health organization did 
violate its constitutional rights.
  So when this was decided, neither Planned Parenthood nor the State of 
Utah sought to have the Tenth Circuit rehear the case en banc, which 
means all the judges that serve on the Tenth Circuit. So you had a 
three-judge panel that made a decision. Neither side of the case--they 
were like, OK, we are done with this. We are done with this. The 
practice wasn't even relevant to the association in Utah, not just 
because the videos were from different States, not just because the 
videos were doctored and basically illegitimate, but also because they 
were about a fetal research program that the organization in Utah 
didn't participate in.
  So from every possible direction, both sides said: Peace. The judge 
has ruled, and we understand why. We accept their ruling. But did Judge 
Gorsuch accept the ruling? No. He dissented from the court's denial and 
wanted to grant an en banc review, not at the behest of any litigant, 
just that Judge Gorsuch didn't like the outcome of the case and wanted 
to have a full panel in hopes of getting the decision that would defer 
to Governor Herbert, who wasn't seeking any review because he wanted to 
strip the organization's funding, even though the organization had done 
nothing wrong and didn't participate in the program at all. In other 
words, Judge Gorsuch was willing to ignore court practice and custom 
and a whole set of facts that showed that the whole decision the 
Governor made was on the wrong basis--wrong basis on the facts because 
the videos were doctored, wrong basis on the facts because it wasn't 
even about the State of Utah, wrong basis on the facts because Planned 
Parenthood of Utah didn't participate in this research program--wrong 
on every level.
  But Judge Gorsuch wanted to ensure that he could show a case backing 
Utah's Republican Governor that eliminated funding for Planned 
Parenthood. That is judicial activism. That is rewriting the law. That 
is not a judge; that is a legislator. A person who wants to rewrite the 
law in the frozen trucker case, a person who wants to rewrite the law 
in the autistic child case, a person who wants to rewrite the law in 
the Planned Parenthood case should run for office and legislate, not 
use the courts as your personal strategy for judicial activism; that 
is, to rewrite the law, the opposite of what the law says.
  In the majority's opinion, Judge Mary Briscoe wrote separately to 
highlight the troubling nature of Gorsuch's dissent. She noted first 
how ``unusual'' and ``extraordinary''--those are words that she put 
in--it would be for the Tenth Circuit, on its own motion, to order an 
en banc review when neither

[[Page S2258]]

party to a litigation sought such a review. And then she went on, and 
what did she say about Judge Gorsuch's proposal? She said he 
``mischaracterized this litigation and the panel decision at several 
turns.''
  Politics should be in this room, not taking your politics and trying 
to change the law through judicial activism on the court by turning the 
law upside down and saying it means X when it clearly states Y.
  An unidentified judge--we are not sure who--requested that judges be 
polled. Again, that would be an unusual situation, apparently, in this 
context. Another judge in the majority pointed out that none of the 
parties asked for a hearing within the time permitted, and there was no 
justification for polling the court on that question at all.
  These types of cases give you a sense of how Neil Gorsuch has used 
his judicial position to rewrite laws. The law says protect the 
trucker. If the trucker is seeking to pursue safety, he says don't 
protect the trucker. The law says provide the disabled child with an 
appropriate education; Neil Gorsuch says no appropriate education is 
required.

  The court says that Planned Parenthood's rights were violated because 
they were singled out. That is not equality before the law, a very 
important principle in American jurisprudence. Neither side contested 
the outcome. It was kind of like, yes, OK, the court got it right. 
Judge Gorsuch wanted to contest it so he could strip Planned Parenthood 
of funding on a basis that the Court found to be unconstitutional. That 
is yet another reason that this hearing, this review of the judge be 
set aside.
  You have these three fundamental reasons. First, for the first time 
in our history, the seat has been stolen from one Presidency and 
delivered to another in a strategy to pack the Court, causing 
tremendous damage to the institution, as well as tremendous damage to 
this institution, because it involved not exercising our advice and 
consent responsibility.
  By the way, one may wonder, why didn't the majority, rather than 
stealing the seat, putting it in a time capsule and fast-forwarding it 
into the next administration in hopes of packing the Court--why didn't 
they just bring Judge Garland up and vote him down? The Senate has 
acted to not confirm in roughly a quarter of the nominations that have 
come forward to us for the Supreme Court. In those election year cases 
that I put up earlier, the Senate acted in all 15 of the cases that 
preceded the death of Antonin Scalia, but they didn't confirm in every 
case; they turned several of them down. They tabled a couple of them. 
They defeated a motion to proceed in another. But the Senate always 
acted.
  Why didn't the majority honor the responsibility under the law for 
the Senate to do advice and consent, when there was plenty of time to 
do so, when the entire tradition of the Senate had been to always do 
so, when the written responsibility under the Constitution was to do 
so? So why not just bring up the judge and defeat him?
  The answer is in the quotation that I read earlier from my colleague 
from Utah, who anticipated that if only the President would nominate 
somebody like Merrick Garland, it would be a great thing, and we would 
see a quick confirmation. Merrick Garland was that acceptable. He was 
that down the middle. He was without the kinds of issues that raised 
concerns. That was Merrick Garland.
  So the majority said: We can't have a debate on him because the 
Senate will approve him, because he is that qualified. He will get that 
bipartisan support.
  That is the principle of the filibuster; that is, that you don't 
close debate unless 60 Members say you close debate. So if 41 say we 
are not ready for whatever reason, you keep debating. That sends a 
strong message for Presidents to do what President Obama did. He 
consulted with the Democrats; he consulted with the Republicans and 
chose somebody who would be acceptable to both sides. That is the way 
it is supposed to work. And when a President ignores that and says: I 
am going to support somebody from the extremes, I am going to nominate 
somebody from the extremes, that is an invitation for the Senate to say 
no. The reputation, the legitimacy of the Court matters, so we are not 
going to approve this judge.
  That is probably what is going to happen this week. The majority here 
in the Senate may say they want to close debate, but will they have a 
supermajority, a bipartisan majority? No. A few Senators perhaps, but 
they will not have those 60 votes.
  Obama's judges met the 60-vote standard--both of them that they put 
forward before the third vacancy--and nobody filed a motion to close 
debate. There wasn't a vote on a motion to close debate. And why was 
that? Because everyone knew that they would have 60 votes to close 
debate. So, still, even out of the context of having had a cloture 
vote, you have the 60-vote standard there guiding the President and 
guiding the selection of the nominees.
  We should not go back in time to a world in which the copper barons 
ruled Montana, not back to a time where the railroads and the oil 
companies called all the shots. We need to recognize that we have come 
a long way in terms of fulfilling the constitutional vision that our 
Founders set out--this vision of equality under the law, this vision of 
the pursuit of justice. But with the recent decisions of the 5-to-4 
Court, we have gone backward. We have gone backward by allowing 
gerrymandering, by allowing voter suppression, by striking down the 
Voting Rights Act, and, most importantly, we have gone backward by 
allowing this vast infusion of dark money from the very few to drive 
election results.

  I have been sharing the many reasons this debate should be suspended: 
One, because the seat was stolen; two, because there is an enormous 
cloud over the legitimacy of the President, and there are 
investigations under way, and we need to get to the bottom of it before 
a life-tenured position is filled by this President; and, three, a 
judge who repeatedly has engaged in rewriting the law to find for the 
powerful over the people, even when the law was very clear--even to the 
point that the entire Supreme Court overturned him on his effort to say 
doing merely more than nothing is acceptable under a law that says you 
must provide an appropriate education.
  But here is one more thing. Breaking news: A POLITICO report has just 
come out which says that Judge Gorsuch committed plagiarism in a book 
and in an academic article. Well, that is news I had not heard, so I 
will read the article, and we can all learn about it at the same time.
  This is a report from POLITICO entitled, ``Gorsuch's writings borrow 
from other authors.'' It came out at 11:19, which would put it an hour 
ago. Since I am here and since we are talking about Gorsuch, it is 
probably appropriate to share this breaking news with you.

       Supreme Court nominee Neil Gorsuch copied the structure and 
     language used by several authors and failed to cite source 
     material in his book and an academic article, according to 
     documents provided to POLITICO.
       The documents show that several passages from the tenth 
     chapter of his 2006 book, ``The Future of Assisted Suicide 
     and Euthanasia,'' read nearly verbatim to a 1984 article in 
     the Indiana Law Journal. In several other instances in that 
     book and an academic article published in 2000, Gorsuch 
     borrowed from the ideas, quotes, and structures of scholarly 
     and legal works without citing them.
       The findings come as Republicans are on the brink of 
     changing Senate rules to confirm Gorsuch over the vehement 
     objections of Democrats. The documents could raise questions 
     about the rigor of Gorsuch's scholarship, which Republicans 
     have portrayed during the confirmation process as 
     unimpeachable.
       The White House on Tuesday pushed back against any 
     suggestion of impropriety.

  Here is what the White House said:

       ``This false attack has been strongly refuted by highly-
     regarded academic experts, including those who reviewed, 
     professionally examined, and edited Judge Gorsuch's scholarly 
     writings, and even the author of the main piece cited in the 
     false attack,'' said White House spokesman Steven Cheung. 
     ``There is only one explanation for this baseless, last-
     second smear of Judge Gorsuch: Those desperate to justify the 
     unprecedented filibuster of a well-qualified and mainstream 
     nominee to the Supreme Court.''

  That was the comment from the White House. I must do a little bit of 
editorializing here. Having a lengthy debate on a judge is not 
unprecedented at all. What is unprecedented is, for the first time in 
U.S. history, the majority leader filed a petition to close debate on 
the first day of debate. That motion under our rules means, in 2 days, 
we will have a vote to close debate. That

[[Page S2259]]

is what is unprecedented and never before done in U.S. history. Quite 
frankly, when the White House says ``mainstream nominee,'' the analysis 
by the Washington Post didn't find him to be a mainstream nominee. You 
can call him that, but read his opinions; read his judicial activism; 
find how he rewrote the law so that it means the case comes out the 
opposite of the way the law is written. See how that happened in the 
frozen trucker case. See how that happened in the autistic child case. 
See how that happened in his pursuit of the assault on Planned 
Parenthood, when everyone agreed there was a fair outcome and no one 
was appealing the outcome, except Judge Gorsuch.
  If we are going to talk about a filibuster and we want to think about 
it in the longer sense, we aren't even allowed to continue talking to 
keep this from being considered because the majority leader filed a 
petition to close debate, so we have to have a vote on it. But last 
year, for 290-plus days, the Republicans completely filibustered 
Merrick Garland. If we are talking about the core heart of the meaning 
of filibuster--piracy, freebooting piracy to take over the system--that 
is what they did last year. They wouldn't allow even a committee 
hearing or a vote also for the first time in U.S. history. That is 
piracy. That is a violation of our responsibility. So the White House 
certainly got some of this completely wrong.
  The article goes on--after having cited the White House opinion that 
this was an unfair attack--saying:

       However, six experts on academic integrity contacted 
     independently by POLITICO differed in their assessment of 
     what Gorsuch did, ranging from calling it a clear impropriety 
     to mere sloppiness.
       ``Each of the individual incidents constitutes a violation 
     of academic ethics. I've never seen a college plagiarism code 
     that this would not be in violation of,'' said Rebecca Moore, 
     a Syracuse University professor who has written extensively 
     on the issue.
       Elizabeth Berenguer, an associate professor of law at 
     Campbell Law School, said that under legal or academic 
     standards Gorsuch's similarities to the Indiana Law Journal 
     would be investigated ``as a potential violation of our 
     plagiarism policy. It's similar enough to the original 
     work.''

  She continued:

       ``I would apply an academic writing standard,'' said 
     Berenguer, who teaches plagiarism and legal writing. ``Even 
     if it were a legal opinion, it would be plagiarism under 
     either.''
       The White House provided statements from more than a half-
     dozen scholars who have worked with Gorsuch or helped oversee 
     the dissertation he wrote at Oxford University that was later 
     turned into his book. They included John Finnis, professor 
     emeritus at Oxford; John Keown of Georgetown University, one 
     of the outside supervisors for Gorsuch's dissertation; and 
     Robert George of Princeton University, the general editor for 
     Gorsuch's book publisher.
       The experts offered by the White House asserted that the 
     criteria for citing work in dissertations on legal philosophy 
     is different than for other types of academia or journalism: 
     While Gorsuch may have borrowed language or facts from others 
     without attribution, they said, he did not misappropriate 
     ideas or arguments.
       ``Judge Gorsuch did not attempt to steal other people's 
     intellectual property or pass off ideas or arguments taken 
     from other writers as his own,'' said George. ``In no case 
     did he seek credit for insights or analysis that had been 
     purloined. In short, not only is there no fire, there isn't 
     even smoke.''

  The article continues:

       The examples at issue make up a small fraction of published 
     works by Gorsuch, which includes hundreds of legal opinions, 
     academic articles, news articles and his book. POLITICO did 
     not conduct a full examination of the federal judge's 
     writings.
       Yet a review of the documents provided to POLITICO shows 
     Gorsuch parroting other writers' prose and sourcing without 
     citing them. Instead, Gorsuch often acknowledges the primary 
     sources cited by those writers.
       In the most striking example, Gorsuch, in his book, appears 
     to duplicate sentences from an Indiana Law Journal article 
     written by Abigail Lawlis Kuzma without attributing her. 
     Instead, he uses the same sources that Kuzma used: A 1982 
     Indiana court ruling that was later sealed, a well-known 
     pediatrics textbook, ``Rudolph's Pediatrics,'' and a 1983 
     article in the Bloomington Sunday Herald.
       At one point, Gorsuch's prose mimics Kuzma's almost word 
     for word in describing a child born with Down syndrome.
       Kuzma stated that--

  Some medical terms here that I won't get right--

       ``Esophageal atresia with tracheoesophageal fistula 
     indicates that the esophageal passage from the mouth to the 
     stomach ends in a pouch, with an abnormal connection between 
     the trachea and the esophagus.''

  Did everybody follow that?

       Gorsuch wrote that ``Esophageal atresia with 
     tracheoesophageal fistula means that the esophageal passage 
     from the mouth to the stomach ends in a pouch, with an 
     abnormal connection between the trachea and esophagus.''

  That is pretty close to word for word.

       Gorsuch also used similar language as Kuzma in describing 
     ``Baby Doe's'' first days.
       ``Shortly after Baby Doe was born, a hearing was held at 
     Bloomington Hospital to determine whether the parents had the 
     right to refuse the surgery on behalf of their child. An 
     attorney was present at the hearing to represent the parents, 
     though no one was present to represent Baby Doe's potentially 
     adverse interests. Six physicians attended, three of whom had 
     obstetric privileges and three of whom had pediatric 
     privileges at Bloomington Hospital,'' Gorsuch wrote.

  Kuzma, the predecessor from which it is being argued that he has 
taken this virtually word for word, wrote:

       ``Approximately twenty-six hours after Infant Doe was born, 
     a hearing was held at Bloomington Hospital to determine 
     whether the parents had the right to choose a course of 
     treatment for their child that consisted of allowing the 
     child to die. An attorney was present at the hearing to 
     represent the child's parents. No attorney was present to 
     represent Infant Doe's interests. Six physicians attended the 
     hearing, three of whom had obstetric privileges and three of 
     whom had pediatric privileges at Bloomington Hospital.''

  I believe that last sentence was virtually word for word copied from 
what Kuzma wrote.

       Kuzma, a one-time aide to former Sen. Dick Lugar (R-Ind.), 
     did not respond to an inquiry from POLITICO, but released a 
     statement through Gorsuch's team. Kuzma said she does ``not 
     see an issue here, even though the language is similar.''
       ``These passages are factual, not analytical in nature,'' 
     Kuzma, now a deputy attorney general in Indiana, said. ``It 
     would have been awkward and difficult for Judge Gorsuch to 
     have used different language.''
       But a 1983 Notre Dame Law Review article addressing the 
     same case did, in fact, use different, plainer language to 
     describe the issue than Kuzma or Gorsuch did. Author John M. 
     Maciejczyk wrote that the ``infant needed surgery to correct 
     a blocked esophagus.''
       In several other examples provided to POLITICO, Gorsuch 
     follows the fact patterns and sourcing without acknowledging 
     them.

  This article goes on for another several pages. I guess we have the 
time to share it in its entirety. But let's not lose the fundamental 
point at the start of the article; that is, the title, ``Gorsuch's 
writings borrow from other authors,'' and an introductory comment here:

       Supreme Court nominee Neil Gorsuch copied the structure and 
     language used by several authors and failed to cite source 
     material in his book and an academic article, according to 
     documents provided to POLITICO.

  To continue and to share the full text here, the article continues, 
providing more details. Tomorrow many people will be going through 
these because this is information that just came out an hour ago. It 
makes you wonder, is the reason that we had a first-ever motion to 
close debate on the first day of debate--the first time in U.S. history 
this happened--because there is information that people are aware of, 
and they want to get this nomination vote concluded before this 
information becomes public? Is that why we are violating all the 
constitutional norms here? Well, I hadn't thought of that possibility 
until this article was put in my hands a few moments ago.

  The article continues:

       In several other examples provided to POLITICO, Gorsuch 
     follows the fact patterns in sourcing of other writers 
     without acknowledging them.
       In describing euthanasia activist Derek Humphrey, Gorsuch's 
     book tracks closely with the 2003 book titled ``A Merciful 
     End: The Euthanasia Movement in Modern America,'' by Ian 
     Dowbiggin.
       ``In 1989 Humphrey left his second wife, Ann Wickett, soon 
     after she had undergone surgery for breast cancer. During the 
     divorce, Wickett alleged that when Humphrey purported to help 
     her mother commit suicide, the resulting death was not fully 
     consensual,'' Gorsuch wrote.
       Dowbiggin wrote--

  In a parallel phrasing that preceded Gorsuch's writing--

       ``In 1989 he left his second wife, Ann Wickett, shortly 
     after she had undergone surgery for breast cancer. Their 
     subsequent divorce was made messier by Wickett's allegations 
     that her mother had not died willingly when Humphry had 
     participated in the suicide of her own parent,'' Dowbiggin 
     wrote.
       Gorsuch did not include an attribution to Dowbiggin in the 
     passage at issue, though he did cite the author at numerous 
     other points in the book. Dowbiggin listed his sources as 
     ``Deadly Compassion: The Death of Ann

[[Page S2260]]

     Humphry and The Truth About Euthanasia,'' by Rita Marker, and 
     ``Last Rites: The Struggle Over the Right to Die,'' by Sue 
     Woodman. The same titles were cited as sources by Gorsuch.
       In the same chapter, Gorsuch appears to rely heavily on a 
     2002 article by Paul Lombardo of the University of Virginia 
     about sterilization techniques used in that state in the 
     early 20th century. Lombardo writes that a woman named Carrie 
     Buck was sterilized after having a child and her mother was 
     institutionalized.
       ``Even worse for her, officials at her mother's asylum 
     claimed that mother and daughter shared heredity traits in 
     feeblemindedness and sexual promiscuity,'' Gorsuch wrote.
       Wrote Lombardo, ``Officials at Virginia Colony said that 
     Carrie and her mother shared heredity traits of 
     `feeblemindedness' and sexual promiscuity.''

  There is a bit of an echo there.

       Gorsuch did not cite Lombardo despite mimicking his 
     sentences and presenting them in virtually the same order, 
     according to an electronic search of Gorsuch's book.
       Howard, the Syracuse University professor, said Gorsuch 
     engaged in a passage known as ``patchwriting''--essentially 
     patching together words, fact sequences and quotes from 
     another source, but occasionally changing up the phrases and 
     tenses.

  It is a way to copy someone else's work while making it look like it 
is your own.

       In addition to ``heavy patchwriting,'' Howard said, Gorsuch 
     ``hides his sources, which gives the appearance of a very 
     deliberate method. I would certainly call it plagiarism.''
       In a 2000 article in the Harvard Journal of Law & Public 
     Policy titled ``The Right to Assisted Suicide and 
     Euthanasia,'' Gorsuch's writing aligns closely with a 1985 
     Duquesne Law Review article about euthanasia in colonial 
     America. Gorsuch describes laws in colonial Virginia, 
     Massachusetts, Rhode Island, South Carolina, North Carolina 
     and Pennsylvania in the same order and with similar 
     quotations as the Duquesne article. But Gorsuch never cites 
     the article in that passage, instead only repeating the same 
     sources that it relied on.
       Oxford's academic guidance for plagiarism states that 
     ``paraphrasing the work of others by altering a few words and 
     changing their order, or by closely following the structure 
     of their argument, is plagiarism if you do not give due 
     acknowledgement to the author whose work you are using.''
       Christopher Sprigman, a New York University law professor 
     involved in building an online standard for citation in legal 
     scholarship, said he did not believe examples of Gorsuch's 
     questionable writing reflected ``mendacious'' acts on the 
     judge's part. Gorsuch's manner in attributing sources is ``a 
     choice that you might agree or disagree with,'' Sprigman 
     said. ``It's a little bit risky, but I wouldn't say it rises 
     to the level of a bad act. I think some people would say it's 
     sloppy.''

  That is the conclusion of the article--again, information that just 
came out about 1 hour 20 minutes ago. So I recommend that folks take a 
look at the article. I am sure many people will be analyzing it 
tomorrow.
  Part of the point of the lengthy debates we often had over the 
Supreme Court is to have a chance for all the facts to come out. And 
the fact that tonight--well, that is, Tuesday night; it is now 
Wednesday morning--Tuesday was the first time ever in our entire 200-
plus years as a Senate that a cloture motion on a Supreme Court nominee 
has been filed on the first day of debate. Maybe that motion should be 
withdrawn given that there is more information now to analyze as of a 
few minutes ago than we had before.
  The challenge this institution faces is, how do we restore it to a 
functioning legislative body, and how do we repair the deep divide in 
America? This question goes far beyond just the issue of the nomination 
of Neil Gorsuch; this issue goes to fundamental changes in how this 
Senate operates, fundamental changes in how our society receives its 
information. While I shared some of that previously, I think it is 
probably now, many hours later, worth going back through a little bit 
on this set of challenges the Senate faces.

  When I was first here as an intern in 1976--41 years ago--the Senate 
was here all week long, Monday through Friday. It had a normal 
workweek. The Senate families were here, which meant that people had a 
more normal family life. During the breaks, they returned to their home 
States to share what they had worked on, what they were going to work 
on, what the Senate was working on, and generally hold townhalls and 
meetings and catch up on everything and then come back here after the 
break. That structure of families living here meant that there were 
connections not just between Senators but connections between them and 
their spouses. There were connections between their children. There 
were relationships formed over many evenings in which people 
socialized, and they had activities on weekends.
  There were a lot of connections that we don't have now, four decades 
later, because we fly in and vote on Monday night, and then we vote on 
Thursday afternoon and fly out. So we don't have the reenforcement of 
our families being here to provide the kind of fabric in which the 
legislative discussion occurs, and we don't have the time to get to 
know each other. That is a challenge.
  Plus, we have to spend a lot more time fundraising than folks in the 
Chamber did four decades ago. When you realize that a single 
individual, under the deeply mistaken decisions of the Supreme Court, 
can now put as much money into a campaign attack against you through a 
third party campaign--that they can write a check for more than the 
total amount you have raised for your entire campaign, it means that 
you are going to have to work very hard year after year to prepare for 
the next battle because the opposition doesn't have to prepare for the 
next battle. They simply have these massive amounts of funds that they 
can deploy at a moment's notice: Let's put $5 million in that race. 
Let's put $10 million in that race.
  The result is, for example, in the case of the Koch brothers, that 
when the Koch brothers used front groups to attack various candidates 
across America, the candidates wrestled with whether to respond by 
attacking the Koch brothers, and generally, they decided not to because 
of the old adage ``Don't pick a fight with someone who buys ink by the 
barrel.'' But the modern version of that is ``Don't pick a fight with 
someone who has the most deeply funded super pac that exists in the 
United States.''
  So the Koch brothers carried their fight in 2014 into the Senate race 
in Arkansas. They carried their battle into the Senate race in 
Louisiana. They carried their battle into the race in North Carolina 
and in Colorado and certainly in Iowa and in Alaska and my home State 
of Oregon. They were funding front groups to attack me with a third-
party campaign. This is what people fear. The Koch brothers can write a 
$5 million check--they and their associates--and counter all the funds 
you raised.
  In addition to the fact that we are here only 3 days, a portion of 
those 3 days from Monday night to Thursday night is given over to 
fundraising. So instead of being able to go to dinner with colleagues, 
you go to a fundraising dinner. Maybe you slip across the street to do 
an hour of phone calls. If you are not raising for your own campaign, 
you are raising for your party's Senate group--the Republican Senate 
campaign committee or the Democratic Senate campaign committee--or 
maybe you are raising money directly for your colleagues themselves, 
helping to make calls for an event that is upcoming.
  So you have an incredible shrinking of the Senate week, combined with 
a huge expansion of the time dedicated to fundraising in order to 
prepare for the attack that may well come from deeply funded super 
pacs. That is not a good combination in terms of Senators getting to 
know each other and getting to respect each other, developing projects 
together.
  I know that it not only damages the time people should be working 
together, but it also delegitimizes what this group of 100 Senators 
does. The minority feels almost compelled to fight the battle after 
having been attacked so viciously by the other side in third-party 
campaigns. To some degree, this probably goes both directions. So we 
come here brutalized by the groups who are supporting the other side of 
the aisle. You are not particularly in a mood to help them out.
  This is why I keep coming back to this: It is easy to simply become a 
pure partisan in this world in which deep-funded interests make up all 
kinds of attacks and put them on television in an effort to elect 
someone who will do their bidding, but if we do that, if we don't keep 
coming back together with the philosophy of problem-solving, then 
problems will never be solved. We will never have a better healthcare 
system. We will never have a better public education system. We won't 
have a better transportation system. We won't

[[Page S2261]]

have better deployment of infrastructure in rural America if all we do 
is nurture the wounds of elections. But it also means that we need to 
change the dynamic that creates those wounds. That is why the Supreme 
Court seat matters, because the 5-to-4 Court has been doing a lot of 
wound infliction on our system, making it easier to gerrymander, making 
it easier for voter suppression, making it easier for dark-money 
campaigns to corrupt the election process. So we have to attack it on 
all fronts.

  That experience of coming here 41 years ago as an intern and seeing 
this place operate in a very different way gives me the hope that some 
way, we could find our way back from the brink. I don't think we have 
been anywhere as deep in the pit of partisanship--to mix metaphors--as 
at this moment, with this stolen seat; at this moment, with a cloud 
over our President and, therefore, a cloud over his nomination; at this 
moment, with a nomination that disrespected the role of a 
supermajority, the role being to help encourage Presidents to make 
nominations from the mainstream, not from the ideological extreme. Here 
we are, deep, deep into the pit.
  If we don't solve the dark-money problem which is very related to the 
Supreme Court, then we aren't going to come together to solve the other 
problems because we won't have people who have been elected through a 
``we the people'' vision of America, where each citizen has an equal 
voice, Jefferson's mother principle.
  So that is the challenge that we face both on the Supreme Court side 
of this nomination but also in terms of problem solving.
  I think that article that just came out is one that should add to 
this conversation--this article that says there is now yet another 
issue, an issue that didn't come out in the Judiciary Committee 
deliberations.
  POLITICO has prepared a side-by-side comparison, which I have on this 
multicolored chart so citizens can look that up and contribute to that. 
But it is yet another reason we should probably go a different 
direction.
  Now I am going to turn to Gorsuch's views of expansive Executive 
power.
  Given the need for strong judicial oversight of this administration, 
under the circumstances, this nominee is particularly ill-suited. He 
has consistently taken the position that Executive power has very few 
limits.
  As a member of the Bush administration, Judge Gorsuch, according to 
the New York Times, ``was at the center of both litigation and 
negotiations with Congress'' regarding ``detainee abuses, military 
commissions, warrantless surveillance and its broad claims of executive 
power.''
  As a lawyer at the Department of Justice, Judge Gorsuch defended 
President Bush's enhanced interrogation methods.
  In 2005 Congress passed the Detainee Treatment Act, which was meant 
to ensure greater human rights for detainees held at Guantanamo Bay. 
Judge Gorsuch, working as a Department of Justice lawyer at the time, 
managed to weaken a provision in the Detainee Treatment Act permitting 
a civilian appeals court to review decisions by military tribunals.
  The original draft let judges scrutinize whether the tribunal had 
applied the correct standards, but the revised language only let them 
look to see whether the tribunal had applied standards set by the 
Pentagon. That is quite a change.
  After the legislation was passed, Gorsuch sent an email to a 
colleague in the White House in which he said he needed cheering up. In 
the email, he discussed successful efforts to weaken the legislation 
stating: ``The administration's victory is not well known, but its 
significance shouldn't be understated.''
  After the Supreme Court issued a landmark ruling in June 2006 to find 
that officials involved in the use of interrogations could be 
vulnerable to prosecution for war crimes, Judge Gorsuch helped draft a 
legislative proposal to address the issue, though he left before the 
eventual bill, the Military Tribunal Commissions Act, was enacted.
  It is clear that he played a significant role in the case of Hamdan 
v. Rumsfeld, which former Solicitor General Walter Dellinger called 
``the most important decision on Presidential power ever.'' The case 
was regarding the legal process being accorded to detainees at 
Guantanamo Bay. His central role was made clear by a request from the 
Department of Justice Office of Public Affairs that he, along with the 
Solicitor General and his principal deputy, participate in a background 
media call on the day the decision was to be announced.
  The Department of Justice records show that Gorsuch had been very 
involved in helping support the inclusion of language in the Detainee 
Treatment Act and the National Defense Authorization Act and bolstered 
the position that only the DC Circuit should be able to review 
complaints about the Bush military commissions.
  Gorsuch repeatedly asked several DOJ colleagues in November where we 
stand on the legislative language and if there is anything we can do to 
help.
  In February, a Republican Senate Judiciary Committee staffer sent 
Gorsuch a drafted amicus brief on behalf of Senators Kyl and Graham for 
the administration's jurisdiction stripping arguments, a Congressional 
Record excerpt supporting the claim. Fortunately, the Supreme Court 
rejected the jurisdiction stripping Hamdan, but it was clear that 
Gorsuch was trying his best to enact sweeping Bush claims to unilateral 
authority and severe limits on judicial review.
  Let me go back to the central premise here. As a member of the Bush 
administration, Judge Gorsuch, according to the New York Times, was at 
the center of both litigation and negotiations with Congress regarding 
detainee abuses, military commissions, warrantless surveillance, and 
broad claims of Executive power.
  I think all of us should be more than a little disturbed by getting 
to the bottom line here, which is that Congress sought to ensure 
greater human rights for detainees held at Guantanamo Bay and Judge 
Gorsuch was working as a DOJ lawyer to weaken a provision in that 
regard and these other pieces that I have referred to.

  I will turn now to an analysis of ``The Dissents of Judge Neil 
Gorsuch: Far to the Right and Out of the Mainstream.''
  This analysis by People For the American Way goes through a number of 
cases, setting out the picture, if you will, of just how far out of the 
mainstream Neil Gorsuch is. I will just read this by Elliot Mincberg, 
written last month:

       Many, if not most, decisions by the Supreme Court and the 
     court of appeals are unanimous. Reviewing the cases where an 
     appellate judge has chosen to disagree with and dissent from 
     his or her colleagues, therefore, can be particularly 
     revealing. And that is precisely the case with Judge Neil 
     Gorsuch. Judge Gorsuch's dissents from his colleagues on the 
     Tenth Circuit Court of Appeals are consistently right-wing, 
     generally seeking to favor big business and other authority 
     and harm the interests of workers and those who have suffered 
     abuse by government officials. And this is on a court which, 
     until recently, consisted primarily of Republican appointees 
     like Gorsuch. For example:
       In Compass Environmental, Inc. v. Occupational Safety & 
     Health Review Commission, Gorsuch dissented from a decision 
     to affirm a Department of Labor fine against a company that 
     failed to properly train a worker, resulting in his death by 
     electrocution. Gorsuch claimed that there was no evidence to 
     show that industry standards would have required more 
     training. But as the court majority and the agency found, 
     there was ``clear evidence'' to support the ruling.

  Let me say that again. Gorsuch said there was no evidence. The court 
majority basically found there was ``clear evidence'' to support the 
ruling.

       In particular, the company's own job hazard analysis found 
     ``fatal danger'' from the high-voltage power lines involved, 
     and recommended training for employees.

  That was the company's own job hazard announcement. The company 
itself knew: If you are operating a piece of equipment next to a high-
powered voltage line and that metal equipment touches that line, you 
create the possibility of an electrocution.
  That training was given to some employees, but the employee who was 
killed did not get that training because they didn't give it to him. So 
the court majority said: Yes, you should have provided the training 
that you knew was necessary for the operation of this equipment in that 
setting with a high-voltage power line, but you didn't give it. 
Therefore, you are in the wrong. But Judge Gorsuch saw it differently.

       As a result of that negligence, the danger truly did become 
     fatal, and the fine against

[[Page S2262]]

     the company was clearly justified. But Gorsuch disagreed with 
     his own colleagues--including one who, like Gorsuch, was 
     appointed by President Bush--and argued that the corporation 
     should pay nothing.

  My father was a mechanic. He worked when he was first out of high 
school for construction companies on highways in Arizona, and he did a 
whole host of roles but mostly repairing the equipment of the shop.
  In a few years, he became a journeyman, a mechanic. In the course of 
that work on these big machines, you come to be aware that there are a 
lot of hazards that need to be addressed. You know some of those 
hazards for the operators, some of the hazards for working on the 
machines themselves.
  Companies know this as well. They know that if they are hiring a new 
employee to work in a hazardous setting, they need to train the 
employee so the employee doesn't get hurt.
  The company didn't provide the training. The employee died. The 
company is fined. And Gorsuch says: No, no, no problem here.
  Really? Why did the rest of the court majority find otherwise? Why 
did the Department of Labor find otherwise? Why did he disagree with 
his colleagues in order to protect a powerful corporation that had 
failed to provide the training that resulted in the death of a person?
  That is what the requirements for training are all about--to protect 
individuals from situations where they are at high risk. You eliminate 
those risks.
  (Mr. TILLIS assumed the Chair.)
  The article goes on to address the issue of the frozen trucker who I 
discussed earlier.
  In TransAm Trucking, Inc. v. Administrative Review Board, Gorsuch 
dissented from a decision. Here again, the majority is finding one 
thing, and, as you hear about this, you will realize that what the 
majority found was very logical, and what Judge Gorsuch found was 
standing everything on its head:

       Gorsuch dissented from a decision to approve a Labor 
     Department determination that a large trucking company had 
     wrongfully fired a truck driver who had refused to drive 
     under hazardous conditions. The trailer's brakes had frozen 
     in subzero temperatures, and the driver waited over two hours 
     for repair help. He reported that he was ``having trouble 
     breathing because of the cold'' and that he ``couldn't feel 
     his feet.'' When help still did not arrive, he unhitched the 
     large trailer because of concerns about driving the entire 
     load under those conditions and began to drive away in the 
     cab. The company insisted by radio that he keep waiting in 
     the frigid conditions or drive with the full load, even 
     though the trailer's brakes had frozen. Although he returned 
     when help arrived in around fifteen minutes, he was fired; 
     the company claimed that the firing was proper because 
     instead of remaining in the freezing conditions and not 
     driving (which was his right), he drove off without the 
     trailer instead of the dangerous way the company demanded. 
     Gorsuch agreed with the company, claiming that finding for 
     the driver was improperly using the law ``as a sort of 
     springboard to combat all perceived evils in the 
     neighborhood'' and that the objective to promote health and 
     safety was just ``ephemeral and generic.'' The court majority 
     agreed with the agency, calling Gorsuch's reasoning 
     ``curious.''

  If anyone missed the elements of this case when I spoke about it 
previously, as I have several times in the course of the night because 
I find it such an outrageous situation, you have a driver who is in an 
impossible situation. The brakes had frozen on a truck in subzero 
temperatures. Therefore, the braking ability on the trailer is 
compromised. So it is dangerous to drive it. Then the auxiliary heater 
in the cab had failed. So he is in subzero conditions in the cab, and 
as this relates he had conveyed that he had gone numb. He was having 
trouble breathing because of the cold. He couldn't feel his feet. So he 
did the logical thing to protect his own safety. He drove somewhere 
seeking to get some heat but didn't drive the trailer because to do so 
would have been to endanger everyone else. The Court said this all fits 
with the law. Gorsuch disagreed.

       In Planned Parenthood Ass'n of Utah v. Herbert, a three-
     judge panel had issued a preliminary injunction against 
     Utah's governor for unilaterally cutting off Planned 
     Parenthood (PP) funding.

  This is a case that I referred to earlier where you have three basic 
things. A Governor chooses to cut off funding, eliminating equality 
under the law because of some doctor videos that were released--videos 
that were completely discredited later on--but in this kind of 
political campaign he chose to discriminate against Planned Parenthood. 
The fact is that those videos weren't about Utah. They were about a 
program that wasn't even utilized by Planned Parenthood of Utah. So at 
every level, there was no basis for this discrimination. So the 
majority of the full Tenth Circuit declined to rehear the case after 
the preliminary injunction.

       Gorsuch, however, wrote a dissent for himself and several 
     others, and argued for deferring to the governor. An 
     important issue in the case was the governor's intent in 
     cutting off funding, which the panel found was retaliation 
     for promoting access to abortion. On that issue in 
     particular, Gorsuch argued for deference to the governor in 
     the name of ``comity.''

  In the name of comity? OK. Let's get this right. It is OK to violate 
the equality under the law in order to make nice with the powerful 
government. That is what Gorsuch argued? Well, the majority certainly 
disagreed, noting that nobody party to the suit had asked for a 
rehearing. This is where you seek a rehearing by a broader group of the 
panel of judges. If the defendant doesn't dispute it, why would you 
possibly do a rehearing except to score political points on the 
rightwing of the universe? That is what Gorsuch did. It shows his lack 
of regard for reproductive rights. It also shows that he wanted comity, 
that he wanted to make nice with the Governor rather than defend the 
rights of the organization that had been discriminated against. I think 
this kind of deference to executive authority is certainly something 
that in the context of our current situation is a dangerous tendency.

       These are just a few of the dissents written by Gorsuch 
     where his disagreements with his own colleagues, including 
     other Republican appointees, show that he is far to the right 
     and out of the mainstream. Altogether, Judge Gorsuch has 
     written 35 dissents, which are in the following areas: 
     workers' rights, abuse of government official authority, 
     corporations and consumers, criminal law, and other 
     constitutional issues.

  So let's take a look at each of these areas. So again, these are 
cases where Gorsuch is disagreeing with the majority on a case.

       Judge Gorsuch has written five dissents in cases concerning 
     workers' rights.

  I am reading this analysis. This analysis that has been prepared by 
Elliot Mincberg last month, titled ``The Dissents of Judge Gorsuch: Far 
to the Right and Out of the Mainstream.'' So Elliot writes:

       Judge Gorsuch has written five dissents in cases concerning 
     workers' rights. In all but one, the majority found in favor 
     of the worker, but Gorsuch argued for a result that would 
     have hurt the worker and helped a corporation or other 
     employer. These include the Compass Environmental and TransAm 
     Trucking cases discussed above.

  Those we already talked about.

       The two others are similarly troubling.

  These are not my words. I am reading Elliot Mincberg's words.

       In Strickland v. United Parcel Service, Inc., the court 
     majority ruled that a lower court had improperly dismissed a 
     complaint that UPS had committed sex discrimination against a 
     fired female employee and had also violated the Family 
     Medical Leave Act (FMLA), and sent the case to the district 
     court so that the plaintiff could try to prove her claims at 
     trial. Although Gorsuch agreed with the FMLA ruling, he 
     dissented on the discrimination claim and argued that the 
     dismissal of that claim should be affirmed. The majority was 
     critical of Gorsuch's argument, noting that he ``fail[ed] to 
     acknowledge'' substantial evidence that the worker was 
     treated differently because of her gender. That evidence, the 
     majority explained, included testimony from ``multiple co-
     workers'' that she was treated differently than male 
     employees, including being required to meet 100 percent of 
     sales goals and being subjected to ``increased oversight'' 
     such as frequent ``negative'' meetings that ``interfered with 
     her ability to do her job.''

  Certainly, I think, in this day and age, we expect companies not to 
engage in discrimination on the basis of gender. Here the court found 
``substantial evidence,'' including ``testimony from multiple co-
workers that she was treated differently''--and not in a positive way--
``than her male employees''--subjected to different sales goals, 
subjected to different oversight, subjected to different special 
meetings that interfered with her job. But Judge Gorsuch disagreed with 
the majority and thought that this argument of discrimination should be 
rejected.
  The article continues:

       Finally, in NLRB v. Community Health Services, Inc., Judge 
     Gorsuch dissented from a ruling last year that upheld a 
     National

[[Page S2263]]

     Labor Relations Board (NLRB) decision that granted over 
     $100,000 in back pay to hospital workers whose hours were 
     illegally reduced, without deducting amounts that some earned 
     elsewhere during the period that the employees' hours were 
     improperly reduced. The Board concluded that such deductions 
     were improper because the outside employment was important to 
     help address additional hardship, encourage production and 
     employment, and prevent dilatory conduct by employers in 
     accord with law. But Gorsuch did more than dissent.

  Again, I am reading now the words of Elliot Mincberg.

       He excoriated the NLRB, a favorite target of many right-
     wing Republicans, suggesting that the NLRB's decision could 
     have stemmed from its alleged ``frustration that it cannot 
     pursue more tantalizing goals like punishing employers for 
     unlawful actions.'' Interestingly, one of the judges in the 
     majority from which Gorsuch dissented was Chief Judge Tim 
     Tymkovich, also a Bush appointee who was on Trump's list of 
     21 possible Supreme Court nominees, but who obviously was not 
     selected.

  You know the NLRB, or the National Labor Relations Board, exists to 
protect workers by making sure employers abide by the law, and I find 
that Gorsuch's language here that imputes that the Board was operating 
not on the facts of the case but out of the frustration that it ``can't 
pursue more tantalizing goals like punishing employers,'' really quite 
bizarre.
  I know that in the pursuit of protecting workers it is often 
frustrating to companies that they get subjected to fines for their 
conduct by the NLRB or are ordered to pay back pay, but isn't this now 
the moment in which you have a President who said he was going to fight 
for workers? Wouldn't he want to nominate a judge who actually wanted 
to have the National Labor Relations Board be able to successfully 
fight for fairness for workers, not someone who treated that as kind of 
a frivolous thing: Oh, those workers, what do they need? They are just 
constantly bothering our powerful corporations with things like asking 
for fair treatment. How inappropriate is that? I mean, that is kind of 
the tone of the Gorsuch approach here, and I think it is incredibly 
important that we have an agency that says: If you proceed to bring 
people in and you don't pay them for the hours they work, you must pay 
them. If you are supposed to pay overtime and you didn't, you have to 
make it up. Somebody has to hold people accountable to the law for 
protection and for fairness to workers.
  It is not as if workers in America have been doing very well. Over 
the last four decades, workers have been getting the short end of the 
stick. The wealth in America has soared and soared and soared, and the 
workers, unfortunately, have received very little of that wealth. The 
inequality in the Nation has expanded dramatically. One way of framing 
this is that virtually all the new income in America has gone to the 
richest 10 percent of Americans. So here we have an agency that is just 
saying basic fairness: If you are supposed to pay overtime, pay 
overtime. If you bring people into the job, pay them for the time they 
work. If you are supposed to provide a break time, provide a break 
time--basic fairness for workers. But instead of having this basic 
fairness for workers, there is this campaign to take away the power of 
the agency that provides that.
  This came up in the context of the challenge we faced in 2013 when 
the minority said: We are not going to allow anybody to be confirmed to 
the National Labor Relations Board. They wanted it to be dysfunctional 
so they couldn't protect workers. Now we have a President who was 
running to help workers but he is nominating a Justice who treats that 
like a frivolous goal--protecting workers.
  Let me return to the argument here and to the topic of the ``Abuse of 
Government Official Authority.''

       Judge Gorsuch has written four dissents in civil cases 
     concerning claims of abuse of government official authority--
     three involving law enforcement officials and one involving a 
     state's governor. In three out of four [of these cases], his 
     judicial colleagues found that such abuse had occurred or at 
     least the plaintiffs should have a chance to prove it. In all 
     three of those cases, Gorsuch dissented and would have 
     deferred to the government official.

  We discussed already the most important of those dissents, which was 
Planned Parenthood v. Utah.
  Let's go forward to consider Cortez v. McCauley.

       The full Tenth Circuit considered whether a couple whose 
     home was unexpectedly invaded by the police after midnight 
     could bring claims of abuse to a jury. In the case, a 2-year-
     old girl for whom plaintiff Tina Cortez had baby-sat, said 
     that Tina's partner had molested her, which other later 
     investigation found to be untrue.
       Based on that report alone and with no warrant, four police 
     officers burst into the Cortez's home after midnight. Among 
     their other actions, the police woke up the couple and shined 
     a flashlight into Ms. Cortez's face, grabbed her by the arm, 
     put her in the backseat of a locked police car, interrogated 
     her, left her there for about an hour, and searched the home 
     without a warrant even though the 2-year-old had not accused 
     her of any misconduct.
       The couple was released and was allowed back into their 
     house after 2 a.m. after it became clear from investigation 
     elsewhere that the claims against Mr. Cortez were false and 
     there was no basis to proceed any further.
       The majority and Judge Gorsuch were in substantial 
     agreement on Mr. Cortez's claims of improper police conduct, 
     but Judge Gorsuch wrote a dissent for himself and several 
     other judges from the decision of the majority, written by 
     another Republican appointee and joined by several others, 
     that Ms. Cortez should be able to present her claim to a jury 
     and that qualified immunity should not apply.
       The majority criticized Judge Gorsuch because his dissent 
     ``comes very close to saying'' that the police conduct was 
     justified simply because the 2-year-old's claim was repeated 
     by a nurse and her mother and was then ``acted upon by police 
     officers,'' reflecting an extraordinary and improper degree 
     of deference to police officials.
       Gorsuch also attempted to minimize the harm to Ms. Cortez, 
     describing it as simply a ``transient feeling'' of 
     intimidation. But as the majority explained, Gorsuch 
     ``disregard[ed] the emotional or psychological injury'' that 
     a jury could well find ``resulting from intimidation, fear 
     for personal safety,'' and ``loss of liberty and privacy'' as 
     a result of being ``removed from the residence in the middle 
     of the night'' and being ``locked'' in a police car and 
     interrogated ``for over an hour.''

  To get a better grip on that case, this is setting up a situation in 
which, on very minor information, police proceed without a warrant to 
burst into a home after midnight, grab a woman, throw her in the 
backseat of a locked police car, interrogate her, leave her there for 
an hour, search the home without a warrant, and so forth. Gorsuch 
described this as just a ``transient feeling'' of intimidation, 
according to this article.
  I think that if most of us were ripped out of our homes in the middle 
of the night and were thrown into a police car and interrogated, we 
would find it to be something more than just a minor transient feeling 
of intimidation.
  The point was the goal of whether she should be able to present her 
claim to a jury. It was not even a finding on the legitimacy of her 
case; it was just that she should have her day in court, that she 
should be able to make her claim that how she was treated was 
inappropriate. Gorsuch minimized the impact on her and wanted to strip 
her of that ability to present her case in court.
  Shouldn't citizens who have gone through what they believe to be 
extraordinary experiences--and I believe being pulled out of your house 
in the middle of the night and thrown into a police car and 
interrogated is pretty substantial--have the ability to make their 
case? Maybe the judge and jury agree with you and maybe they do not. 
This is just a case of, do you get a chance to ask for justice? In this 
case, Gorsuch said no, and the majority said yes, you should have a 
chance.
  There are issues here. There are issues of personal safety, issues of 
loss of liberty, issues of loss of privacy.
  In another case that Judge Gorsuch decided--and I return to reading 
the article--Judge Gorsuch also dissented in Webb v. Thompson, in which 
``the majority affirmed a lower court decision saying that county 
police officials were not entitled to qualified immunity from a 
complaint by a man arrested at a simple traffic stop and treated 
improperly by county police. This included being held in jail for 5 
days when, according to county police, he should have been released in 
no more than 48 hours.''
  This was, again, a man who was arrested at a simple traffic stop and 
was held in jail for 5 days when the policy was that he should have 
been released in 2 days.

       The lower court had found that there was a disputed issue 
     of fact as to whether three officers had helped cause the 
     delay, which all

[[Page S2264]]

     agreed was improper, and therefore ruled that the victim was 
     entitled to present his case to a jury. But Judge Gorsuch 
     dissented from the majority's decision to uphold that ruling, 
     claiming that the officers did not have a personal legal 
     duty to ensure a prompt hearing. The majority easily 
     explained the flaw in Gorsuch's argument. Whether or not 
     they had an affirmative duty to act, the majority 
     explained, the officers were clearly liable if they, in 
     fact, ``caused the delay.''

  Here you have an individual who was held after a minor traffic stop--
held for 5 days in jail. I do not know about any other Member of the 
Senate, but if a Member of the Senate were picked up on a traffic stop 
and held for 5 days--and while we do not have the full context of the 
case here, under the rules, he should have been held no more than 2--it 
would be pretty upsetting, and his family would be pretty upset.
  Thus, there is the question of whether you get a chance to present 
your case. Do you, as a citizen, get a chance to present your case? The 
majority said: Yes, there is a reasonable basis here. You get a chance 
to present your case.
  Gorsuch said: No, we are going to strip the individual of a chance to 
present his case.
  It is quite a different approach, a continuous finding on behalf of 
the powerful, but not always. So I return to reading the article.

       In one case, A.M. v. Holmes, Gorsuch dissented in favor of 
     an individual. The primary claim in that case was against two 
     middle school officials who had asked an Albuquerque police 
     officer to remove a 13-year-old boy who had disrupted a 
     physical education class and rendered a teacher ``unable to 
     continue to teach the class.'' The student was suspended and 
     also arrested under a State law prohibiting interference with 
     the educational process.
       When the mother sued, the lower court granted qualified 
     immunity, a 10th Circuit panel majority affirmed, but Gorsuch 
     dissented, suggesting that the severity of the officials' 
     reaction was not justified. The majority also was troubled by 
     the circumstances, but explained that it is ``not our place 
     to question or undermine'' the state's decision to 
     ``criminalize interference with the educational process.''

  In this case, Judge Gorsuch did dispute a case and did so on behalf 
of an individual, giving more substantial support to the mother, who 
was suing.
  I am reading from this article written by Elliot Mincberg. It is 
titled ``The Dissents of Judge Neil Gorsuch: Far to the Right and out 
of the Mainstream.''
  The article turns to the issue of corporations and consumers.

       Eight of Judge Gorsuch's dissents involved corporations, 
     consumers, or both, including one environmental case. One 
     dissent involved a case of two corporations pitted against 
     each other. In all but one of the seven others, Gorsuch 
     disagreed with his colleagues and wrote a dissent that 
     favored corporations, harmed consumers or other citizens, or 
     both. In the seventh, the corporation Gorsuch ruled against 
     was an adult bookstore. This is the case of Ragab v. Howard.
       Ragab v. Howard concerned the increasingly important issue 
     of forcing individuals to go to arbitration, rather than the 
     courts, to resolve disputes with corporations. In this case, 
     an investment banking firm and a capital financing company 
     tried to compel arbitration of Sami Ragab's lawsuit for 
     misrepresentation and violation of consumer credit repair 
     laws in connection with agreements to help him obtain 
     financing for a new business.
       Both the district court and the court of appeals majority, 
     including a Republican appointee, ruled against the 
     corporations. Judge Gorsuch dissented, however, arguing that 
     even though the six different agreements among the parties 
     contained conflicting language concerning the specifics of 
     handling arbitration, the fact that all six called for 
     arbitration of some sort was enough, and that the court 
     should do a ``workaround'' so that arbitration would take 
     place.
       The majority strongly disagreed. The different provisions, 
     the majority explained, created such ``irreconcilable'' 
     conflicts that it was clear that there was no ``meeting of 
     the minds,'' a basic principle of contract law. The majority 
     pointedly noted that it would be improper for ``courts'' to 
     effectively write in an arbitration requirement when the 
     agreements did not ``demonstrate the parties'' intent.

  Let's talk for a moment about this issue of binding arbitration. This 
is a situation in which consumers are involved in a transaction, and 
there is some fine print that says: If we get into a dispute, you must 
go to an arbitrator, and the outcome of that--whatever the arbitrator 
decides--will be the only outcome you can get.
  That sounds pretty good at first. An arbitration sounds like a 
judicial process. Nothing about it sounds completely unbalanced. But, 
in fact, it is not a judicial process; it is unbalanced. The 
corporation hires the arbitrator.
  Now, if you and I are in dispute and you are essentially hiring the 
referee for that dispute, wouldn't you kind of figure the system was a 
bit rigged, especially if there are a whole series of disputes and the 
referee--that is, the arbitrator--wants the business of the corporation 
and is only going to get that business if they find on behalf of the 
corporation? So you are not going to get a fair hearing. You get an 
unfair hearing.
  The system is rigged because the individual being hired by the other 
party will get business only if they keep finding in that party's 
favor, so you enter the room knowing that you are going to be found 
against, except in a rare circumstance. It is a completely rigged 
system. It doesn't compensate at all. It doesn't replace any fair 
adjudication, and it allows companies to get away with predatory 
practices because there is no avenue through which to pursue fairness. 
In this case, the majority said there is no clear arbitration, but 
Judge Gorsuch wanted to write a requirement. He wanted to legislate.
  We have seen these other cases where he wanted to legislate. He 
wanted to change the way the law is written to protect truckers who 
operate vehicles so as not to endanger others because he didn't like 
that. He wanted to rewrite the law in Utah so that you could ban funds 
for Planned Parenthood, even though it was unconstitutional to 
discriminate against them, and so on and so forth.
  The more I read his opinions, the more I think Neil Gorsuch should 
run for office. He wants to change the law in case after case after 
case. Run for office. Theoretically, that is what legislators do, not 
what judges do. Judges call balls and strikes, not twist the law to 
mean the opposite of what it was written to be. And in this case, he is 
saying the court should do a ``workaround'' so that arbitration should 
take place, and the majority said that is not possible. These are 
irreconcilable conflicts between the different provisions of the 
different arbitration requirements. There is no meeting of the minds. 
It is the principle of contract law, and it would be improper for the 
courts to write an arbitration requirement. But that is what Judge 
Gorsuch wanted to do. He wanted to write an arbitration rule. He wanted 
to legislate. Well, run for office; don't put yourself forward to fill 
a stolen seat on the Supreme Court.
  I know that members of the Senate Judiciary Committee followed these 
cases during the hearings of the Judiciary Committee and looked at them 
carefully. The more they saw, the more they saw not a judge but someone 
who wanted to legislate, who wanted to rewrite the law to help the 
powerful over the ordinary individual, in case after case after case.
  Let's turn to another case. I will return to the article. This 
article by Elliot Mincberg, titled ``The Dissents of Judge Neil 
Gorsuch: Far to the Right and Out of the Mainstream.''
  The article continues:

       In Gorsuch's sole dissent on environmental issues, New 
     Mexico Off-Highway Vehicle Alliance v. US Forest Service, he 
     dissented from a ruling by two other Republican appointees 
     and argued that the Sierra Club and other environmental 
     groups should not be allowed to intervene in a lawsuit 
     contesting Forest Service rules that expanded the number of 
     trails and roads that were only for hikers and bikers.

  So the lay of the land here: You have a really--by two Republican 
appointees, and you have Gorsuch arguing the opposite side, saying that 
the environmental group should not be allowed to intervene in a lawsuit 
contesting Forest Service rules.
  So then the article continues:

       The Alliance, a nonprofit supported by Kawasaki and other 
     motorized vehicle companies, wanted to return to old rules 
     allowing motorized vehicles on more trails. Even though 
     neither the Forest Service nor the Alliance objected, the 
     district court ruled against the environmentalists' 
     participation in the case, and Gorsuch agreed in dissent. As 
     the majority explained, however, other 10th Circuit decisions 
     made clear that the environmentalists had strong reasons to 
     be involved in the case and ``should not have to rely'' on 
     the government to protect their interests, particularly since 
     the government did not object to the proposed intervention. 
     The majority specifically criticized Gorsuch for appearing to 
     rely on the opinion of just

[[Page S2265]]

     three judges in a previous case involving all 13 10th Circuit 
     judges to try to reach a narrow and unfavorable result in the 
     case.

  So I know that often Neil Gorsuch liked to say: I just apply the 
precedents. So what does he do? He takes the opinion of three judges in 
a case involving 13 Tenth Circuit judges. Well, you can see a clever 
strategy as presented in this article, an effort to reach a narrow and 
unfavorable result.
  The article continues:

       In WWC Holding Co. v. Sopkin, Gorsuch argued that a 
     wireless service carrier should be able to avoid the Colorado 
     Public Utility Commission's efforts to enact state-specific 
     consumer protection standards for wireless phone service 
     because the company was complying with relevant federal 
     rules. The majority in the case, including the Republican 
     appointee, disagreed and ruled that Colorado had the 
     authority to enact and enforce state-specific rules, 
     including requiring free calls at libraries, in school 
     districts, and in other community gathering places, under the 
     ``express statutory authority'' of federal as well as state 
     law.

  So let's review that. Gorsuch wanted the company to avoid the public 
utility commission's requirements, and the majority said: Wait, there 
is express statutory authority for the State utility commission to be 
able to require State-specific things such as free calls at libraries, 
in school districts, and in other community gathering places.

  This is another case where Gorsuch wanted to be the legislator. Well, 
go and get elected and write a law rather than writing law as a judge 
when you are supposed to be calling the balls and strikes.
  The article continues:

       Judge Gorsuch dissented in three other cases in which the 
     majority had found in favor of individual consumers.

  So the majority says the individual is right, and Judge Gorsuch said: 
Let me be clear. I want this case to come out on behalf of the 
corporation.
  The article continues:

       Pace v. Swerdlow, where the majority reversed the dismissal 
     of a negligence case against an expert witness and ruled that 
     parents should have the opportunity to prove that the 
     expert's actions prevented them from receiving compensation 
     related to their daughter's death.

  So the argument of the parents was that there was an expert witness, 
and the expert witness's actions prevented them from receiving 
compensation relating to their daughter's death, and the case should be 
dismissed. So the majority reversed the dismissal, but Judge Gorsuch 
dissented.
  The article continues:

       In Salmon v. Astrue, where the majority ruled that a 
     hearing examiner had improperly disregarded evidence 
     reporting a claim of physical and mental disability benefits 
     from the Social Security Administration, but Gorsuch argued 
     in dissent that the examiner's denial met the legal test of 
     being supported by ``substantial evidence,'' which he equated 
     with simply being within the ``bounds of reason.''

  The majority said the examiner--just to review that--had improperly 
disregarded evidence. Well, certainly, if I were having a family member 
in that situation, I would not want a hearing examiner to improperly 
disregard evidence related to a claim for mental and physical 
disability benefits. But Gorsuch argued on the other side, against the 
person on the minority side.

       In Blausey v. Trustee, where the majority allowed a 
     bankrupt couple to appeal an unfavorable bankruptcy court 
     decision, the majority said the couple should be able to 
     appeal an unfavorable bankruptcy court decision rejecting the 
     petition, although it ultimately decided against the couple, 
     but Gorsuch would not have accepted the appeal in the first 
     place.

  He would not have allowed that bankrupt couple to appeal an 
unfavorable bankruptcy court decision. The majority said: We may not 
find in her favor, but she deserves her day in court. Judge Gorsuch 
said: No day in court for her. We are not letting her even argue her 
case.
  The article goes on to address another section involving criminal 
law:

       Most of Judge Gorsuch's dissents have been in criminal 
     cases, often raising constitutional issues concerning whether 
     people have been deprived of effective assistance of counsel 
     under the Sixth Amendment or of rights against unreasonable 
     search and seizure under the Fourth Amendment. A number of 
     these were habeas corpus cases, in which the federal courts 
     undertake limited but important review concerning criminal 
     cases tried in state courts. Gorsuch has dissented in favor 
     of criminal defendants on five occasions. But in almost twice 
     as many, nine, he has dissented against rulings by 
     colleagues, many of them Republican, that vindicated 
     important constitutional rights.
       Most troubling have been Gorsuch's four dissents in cases 
     where his colleagues found that Sixth Amendment rights were 
     violated because individuals, usually low-income people, did 
     not receive effective assistance of counsel. Perhaps the 
     clearest example is provided by his two dissents in Williams 
     v. Jones.
       In the three-judge panel decision in Williams, two of 
     Gorsuch's Republican colleagues, including the very 
     conservative Michael McConnell, ruled that more effective 
     relief was required for an individual who, both the majority 
     and an Oklahoma estate appellate court agreed, was deprived 
     of effective assistance of counsel. In this case, the state 
     had offered Williams a plea agreement under which he would 
     serve 10 years in jail, which Williams wanted to accept but 
     was stopped by his counsel. The lawyer claimed that Williams 
     would be committing perjury if he accepted the agreement and 
     said that he would withdraw from representing Williams unless 
     the case went to trial; short of money, Williams agreed. The 
     trial resulted in a guilty verdict and a sentence of life 
     without the possibility of parole. The Oklahoma court of 
     appeals agreed that the lawyer's conduct was improper and had 
     harmed his client, but the only relief they granted was to 
     reduce the sentence to life with the possibility of parole. 
     The 10th Circuit accepted a habeas petition limited to the 
     question of adequacy of the relief provided by the Oklahoma 
     court.
       The panel majority explained that in light of the egregious 
     conduct by counsel and the obvious consequences, the case 
     should be sent back to the state court to provide a remedy 
     ``tailored to the injury.''

  What is the injury? Egregious conduct by counsel resulting in a 
massive penalty.

       The panel majority explained that in light of the egregious 
     conduct by counsel and the obvious consequences, the case 
     should be sent back to the state to provide a remedy 
     ``tailored to the injury,'' i.e. the loss of a ten-year 
     sentence as opposed to a life sentence. Gorsuch not only 
     disagreed, but would also have gone even further. He claimed 
     that there was no Sixth Amendment violation at all, because 
     Williams received a fair trial in which his lawyer 
     represented him well after the plea agreement failed.
       The majority was extremely critical of Gorsuch's claim. 
     ``No federal circuit court,'' they explained, had accepted 
     Gorsuch's view that any pre-trial Sixth Amendment violation 
     is somehow cured if the later trial is fair. Gorsuch's claim 
     that the Sixth Amendment is essentially limited to what 
     happens at trial, the majority stated, has been ``rejected by 
     the Supreme Court'' and is ``incompatible with a right to 
     effective assistance of counsel in connection with the entire 
     plea process.''

  Let me comment here that when a person is in court and has very 
limited funds--unlike a very affluent person who can have a whole team 
of lawyers--you really depend on your lawyer representing you in an 
effective manner, not, as relayed here, in an egregious manner that 
basically undermined your path.

       But Gorsuch did not stop there. He dissented from a 
     decision by the entire 10th Circuit not to rehear the case, 
     which included several additional Republican-appointed 
     judges, this time also claiming that the effect of the 
     court's ruling was to overturn the later jury verdict that 
     had found Williams guilty.
       One of the Republican-appointed judges on the original 
     panel made short shrift of Gorsuch's arguments in a 
     concurring opinion. It was not a federal court that had 
     originally pointed out the Sixth Amendment violation 
     requiring relief; it was the Oklahoma appellate court that 
     found Williams' lawyer's conduct ``highly improper'' and 
     ``deficient,'' and that Williams had ``indeed suffered 
     prejudice by his trial counsel's action.'' Gorsuch's view, 
     the concurrence explained, was ``impossible to square'' with 
     Supreme Court and court of appeals' rulings on effective 
     assistance of counsel. The Supreme Court denied review of the 
     case.

  So the Supreme Court sided with the majority, essentially saying 
Gorsuch got it wrong. This concept of effective assistance of counsel 
is fundamental to the notion of a fair trial system. An ordinary person 
can't represent themselves; they have to have effective assistance of 
counsel if there is to be any possibility of a fair decision.
  The article continues, saying:

       Other dissents by Gorsuch on findings of Sixth Amendment 
     violations include:
       Wilson v. Workman, in which the majority of the full Tenth 
     Circuit agreed, in a decision by Judge McConnell and joined 
     by other Republican appointees, that a death row prisoner 
     suffered a Sixth Amendment violation because his lawyer 
     failed to present important evidence of Wilson's poor mental 
     health and other problems that could have mitigated against 
     the death penalty. Gorsuch dissented and claimed that the 
     court should defer to the state appellate court that had 
     rejected the claims. But as the majority pointedly explained, 
     deference was inappropriate because the state court had not 
     considered available ``material, non-record evidence'' and 
     thus had not truly ``adjudicated that claim on the merits.''


[[Page S2266]]


  So here is another case of the lack of effective assistance of 
counsel, and all that counsel's representations were defective--
``failed to present important evidence of Wilson's poor mental health 
and other issues that could have mitigated against the death penalty.'' 
Gorsuch said it doesn't matter. A majority said of course it matters. 
``The state court had not considered available `material, non-record 
evidence' and thus had not truly `adjudicated that claim on the 
merits.' ''
  Let's turn to the case of Hooks v. Workman. Again, I am reading from 
this article:

       Hooks v. Workman, in which another Republican-appointed 
     judge wrote a panel opinion finding that a death row 
     prisoner's lawyer had failed to present important mitigation 
     evidence, including concerning Hooks' brain damage, mental 
     retardation, and a history of abuse against him. Gorsuch 
     argued this time that even if that evidence had been 
     presented, the jury would have sentenced Hooks to death. As 
     the majority explained, however, the lawyer's work was 
     demonstrably ``deficient'' and ``prejudicial,'' and there was 
     clearly a ``reasonable probability'' that at least one juror 
     would have refused to impose the death penalty if the Sixth 
     Amendment violation had not occurred.

  So here the majority--this is not Democratic or Republicans; it is an 
Republican-appointed judge--found that a death row lawyer failed to 
present important mitigation evidence regarding brain damage and mental 
retardation and a history of abuse--all mitigating circumstances. The 
failure to present that meant the jury sentenced him to death where 
they might not have otherwise. The majority made it very clear that 
``the lawyer's work was demonstrably `deficient' and `prejudicial,''' 
but Gorsuch dissented.
  The concept of effective assistance of counsel as presented in these 
cases seems to be one that Neil Gorsuch really doesn't grasp or, if he 
understands the concept intellectually, doesn't want to, if you will, 
honor the requirements of the Sixth Amendment.
  Turning to motions to suppress.

       Judge Gorsuch's record is mixed concerning dissents 
     relating to motions to suppress evidence because of alleged 
     constitutional violations by police. In U.S. v. Carloss, 
     Gorsuch argued in dissent that it was improper for police 
     officers to knock on a homeowner's doors as part of 
     an investigation into illegal possession of a machine gun, 
     without a warrant or exigent circumstances, when the 
     homeowner had conspicuously posted ``No Trespassing'' 
     signs on his door and around the property. Gorsuch listed 
     this opinion as one of his ten most significant opinions 
     in his response to the Senate Judiciary Committee 
     questionnaire.
       In three other cases not involving trespassing at home, 
     however, Gorsuch dissented from decisions that suppressed 
     evidence because of improper conduct by law enforcement. In 
     US v. Benard, he dissented from a decision to suppress 
     statements made by Benard after he had been arrested without 
     receiving Miranda warnings. Gorsuch argued that the error was 
     harmless, but the majority explained that they ``cannot 
     conclude'' that was correct ``beyond a reasonable doubt,'' as 
     the law requires.
       In US v. Nicholson, Gorsuch dissented from a ruling that 
     police officers had improperly stopped and then searched a 
     car for an alleged traffic violation, when there was no 
     violation at all because the driver's left turn was not 
     illegal. Gorsuch claimed it was a reasonable mistake, but the 
     majority explained that according to existing Circuit 
     precedent, ``failure to understand the law by the very person 
     charged with enforcing it is not objectively reasonable.''

  To translate that, the police officer shouldn't stop somebody for 
making a legal left turn when the left turn is legal.

       And in US v. Dutton, Gorsuch dissented from a decision by 
     two other Republican appointees that a search warrant for a 
     storage unit contained a ``fatal flaw'' because the 
     application lacked ``any evidence'' that the unit belonged to 
     Dutton. Gorsuch called it a good faith error, but the 
     majority clearly disagreed.

  So in these cases where he is dissenting, essentially the majority is 
saying: You have to hold our public safety officers to a standard 
required by law. And Gorsuch is saying: Well, it was good faith. It 
wasn't an error. They didn't mean to do it. He is choosing to basically 
say that the individuals will not be able to assert the error made on 
the public safety side. It gives them a great big leash area, a big, 
sizeable zone, and compresses the zone in which the individual is 
acting. That is the pattern we see in this.

       Other criminal issues.
       In addition to Carloss, two of Gorsuch's other dissents 
     favorable to criminal defendants concerned prosecutions for 
     federal firearms violations. In US v. Ford, he argued in 
     dissent that prosecutors should have disclosed evidence 
     suggesting that the defendant was entrapped into purchasing a 
     machine gun, although the majority considered that evidence 
     not material to the defense. In US v. Games-Perez, Gorsuch 
     dissented from a decision not to rehear a case concerning a 
     federal law prohibiting possession of a gun by a felon.
       Two other Gorsuch criminal law dissents that favor 
     defendants concerned unique issues. In US v. Nichols, he 
     argued in dissent that the full 10th Circuit should rehear a 
     case in which a sex offender was convicted of violating 
     requirements of the Sex Offender Registration and 
     Notification Act that he notify authorities when he travels 
     to another area. Nichols had been convicted prior to the date 
     of the Act, and Gorsuch argued that Congress had improperly 
     delegated to the attorney general wide authority to determine 
     to what extent the law applied to such offenders.

  So apparently in that case the majority was pointing out that Nichols 
had been convicted prior to the date of the act, and Gorsuch was 
arguing that Congress had improperly delegated to the Attorney General 
wide authority to determine to what extent the law applied.

       Gorsuch also dissented in US v. Spaulding and disagreed 
     with a majority ruling that a lower court did not have 
     jurisdiction to set aside a criminal judgment that contains a 
     term of imprisonment.
       In several other cases, however, Gorsuch dissented on the 
     merits from decisions by his colleagues that disfavored 
     prosecutors.
       In US v. Rosales-Garcia, he dissented from a ruling that 
     the trial court judge had improperly enhanced the sentence of 
     an individual convicted of re-entering the country illegally 
     because of a prior conviction that resulted in a severe 
     sentence. The majority stated that ``we cannot agree'' with 
     Gorsuch's claim that the US Sentencing Guidelines could be 
     equally plausibly read to support the government's position. 
     As the majority explained, the sentence on the prior 
     conviction had been later enhanced because of the 
     individual's re-entry, not because of the original 
     misconduct, and thus should not qualify under the guidelines 
     as a reason to further increase the sentence imposed.
       Gorsuch also dissented in US v. Raymond, in which one of 
     his Republican colleagues wrote an opinion affirming a lower 
     court decision to dismiss an indictment that violated a 
     previous plea agreement that prosecutors not bring additional 
     charges against Raymond arising out of conduct known to the 
     US Attorney before a specified date. Gorsuch argued that the 
     district judge had committed an error, but the majority 
     explained that ``we cannot disturb the district court's 
     factual finding'' that the US Attorney did have such 
     knowledge, based on specific testimony.

  I am reading from a lengthy article prepared or at least issued under 
the organization People for the American Way and titled ``The Dissents 
of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream'' by 
Elliot Mincberg.
  The article then turns to other constitutional issues. So I will 
continue reading it. This article continues:

       In addition to the criminal law and other cases discussed 
     above, Judge Gorsuch has written dissents from his 
     colleagues' opinions in three other cases related to 
     constitutional law issues: two relating to the Establishment 
     Clause and one relating to the Constitution's Guarantee 
     Clause. In all three, Gorsuch's dissent was significantly to 
     the right of even other Republican judges on the court or 
     raised other troubling concerns.
       In Green v. Haskell County Board of Comm., a three-judge 
     panel of all Republican appointees had concluded that an 
     Oklahoma county's decision to approve the construction of and 
     maintain a Ten Commandments monument on its courthouse lawn 
     violated the Establishment Clause. Judge Gorsuch wrote an 
     opinion for himself and several other judges that dissented 
     from a decision by the full court of appeals, including 
     several other Republican appointees, not to rehear the case. 
     He argued that the panel's decision was inconsistent with the 
     Supreme Court's ruling in Van Orden v. Perry that upheld the 
     Ten Commandments monument in Texas, and suggested that the 
     court should not even use the establishment ``endorsement'' 
     test to decide the case. As the panel decision explained, 
     however, the endorsement test remained the law in the Tenth 
     Circuit (and elsewhere), the monument clearly had the 
     ``primary effect of endorsing religion,'' and the Van Orden 
     decision did not apply because the case involving a monument 
     that has stood on public property for 40 years without 
     challenge, while the monument in Green was recently erected 
     and challenged. The Supreme Court denied review of the case.
       Another panel of three Republican-appointed judges simply 
     ruled against the Utah Highway Patrol Association's 
     construction and maintenance of a series of 12-foot crosses 
     on public lands near roads to memorialize deceased officers, 
     explaining the crosses had the ``impermissible effect'' of 
     appearing to endorse the Christian religion. Judge Gorsuch 
     wrote an opinion for himself and other judges that dissented 
     from the decision of the full court of appeals, including 
     Republican appointed judges, not to not rehear the

[[Page S2267]]

     case. Gorsuch again asserted that the ``endorsement'' test 
     should not be applied, and relied on a three-judge plurality 
     in another Supreme Court case, Salazar v. Buono, that allowed 
     a cross to remain on public property. As the panel explained, 
     however, the endorsement test clearly remained the law of the 
     Circuit, and the Buono case did not apply because it 
     concerned a cross that had been on government property since 
     the 1930s. The Supreme Court again denied review of the 
     case--

  Which means they upheld the majority and did not uphold the position 
that Gorsuch was taking--

       Justice Thomas alone wrote a vigorous dissent, making some 
     of the same arguments as did Judge Gorsuch.
       Finally, Judge Gorsuch and several others dissented from 
     the decision of the full 10th Circuit not to rehear a panel 
     decision in Kerr v. Hickenlooper. The panel had upheld a 
     district court decision to allow a claim by a number of State 
     legislators and others that the Colorado taxpayer bill of 
     rights, under which all tax increases must be approved in 
     advance by voters before legislative action, violated the 
     Constitution's Guarantee Clause. Under that clause, all 
     States are guaranteed a republican form of government where a 
     State legislature presumably makes such decisions. The panel 
     did not reach the merits of the claim, but agreed that there 
     was standing to go forward and the case should not be 
     dismissed as raising only a ``political question.''
       Gorsuch argued that the issue was an unreviewable political 
     question because there were no ``judicially manageable 
     standards'' to decide it. The panel disagreed, pointing out 
     that no such standards existed in advance of the Supreme 
     Court's decisions on the Second Amendment. In addition, 
     Gorsuch ignored the fact, as one scholar has pointed out, 
     that the Supreme Court itself has ruled on the merits of the 
     Guarantee Clause claims as recently as 1992. Even more 
     importantly, Gorsuch's dissent suggested a particularly 
     troubling view on the subject of possible constitutional 
     challenges to partisan redistricting.

  Continuing the analysis here as presented in this particular article:

       In particular, in trying to support the argument to his 
     dissent, Gorsuch asserted that the Supreme Court had ``put to 
     bed'' in Vieth v. Jubilerer the question of whether the 
     partisan gerrymandering could be challenged constitutionally 
     because of the lack of manageable standards of review. As the 
     Campaign Legal Center has pointed out, however, that 
     statement is flatly wrong. Although some justices argued that 
     the issue cannot be reviewed, in his controlling opinion in 
     Vieth, Justice Kennedy recognized the corrosive effects of 
     partisan redistricting, and held the door open for 
     appropriate and judicially manageable standards in the 
     future. In fact, a recent decision from Wisconsin that 
     articulated such standards in striking down partisan 
     gerrymandering could well be reviewed soon by the Supreme 
     Court. Gorsuch's suggestion that he already agrees with the 
     justices in Vieth who claimed the issue should not be are he 
     viewed at all is extremely disturbing.

  The article then has a short conclusion that reads as follows:

       This review of Judge Gorsuch's dissents yields very 
     troubling conclusions. Consistently, he has argued in favor 
     of corporations and government authority and against workers, 
     consumers, environmentalists, and poor people, even when a 
     majority of his colleagues, including other Republican 
     appointees, disagree. In those rare instances when he does 
     not so argue, he has frequently sided with gun and 
     property owners. His views are clearly to the right of the 
     Supreme Court majority--even when Justice Scalia was on 
     the Court--on issues like the Sixth Amendment, partisan 
     gerrymandering, the non-delegation doctrine, and the 
     Establishment Clause. Measured against his own colleagues 
     on the Tenth Circuit including Republican appointees, he 
     is far to the right and out of the mainstream, and should 
     not be elevated to the Supreme Court.

  So that is the article titled ``The Dissents of Judge Neil Gorsuch: 
Far to the Right and Out of the Mainstream.''
  Let's turn to an analysis of the ways that Neil Gorsuch threatens 
women's rights. This is titled ``Extreme Far Right Judge'' from the 
Center for American Progress. ``5 Ways the Nomination of Neil Gorsuch 
Threatens Women's Rights.'' It is from March 23, 2017.

       The principle of equality is a cornerstone of American 
     democracy. From our nation's earliest history to the present 
     day, there has been a robust discussion about how to realize 
     the promise of equality and the everyday experiences of 
     people across the country. But equality in the United States 
     has come with an invisible asterisk: Its principles have not 
     been uniformly enjoyed across different segments of society. 
     Given this reality, people who face discrimination have 
     always depended on the courts to protect their access to 
     equal justice.

  The article continues:

       For women, the ongoing quest for equality has been a 
     deliberate--yet uneven--journey. The U.S. Supreme Court has 
     been pivotal in determining the pace and scope of this 
     progress. It is therefore critical that the next Supreme 
     Court justice has an unflinching commitment to an equality 
     that respects all women's dignity and autonomy, enables them 
     to participate fully in society, and empowers them to make 
     decisions about their lives that make sense for them. 
     President Donald Trump's nominee to the Supreme Court, 
     however, has a judicial record that suggests that he would 
     attack--not advance--women's equality if he is elevated to 
     the Supreme Court. A close look at Judge Neil Gorsuch's 
     record reveals that his appointment would likely threaten 
     women's rights in the following five ways.

  The first area of the article addresses his putting employers' 
preferences ahead of women's rights. And then it continues:

       Gorsuch favors protecting the religious preferences of 
     employers at their employees' expense. If confirmed, he would 
     further erode women's ability to make sound personal health 
     decisions. In Hobby Lobby v. Sebelius, Gorsuch and his 
     colleagues on the 10th U.S. Circuit Court of Appeals ruled 
     that a closely held, for-profit corporation could refuse on 
     religious grounds to comply with the Affordable Care Act, or 
     ACA, requirement that health insurance cover contraception. 
     Judge Gorsuch wrote a separate concurrence to the court's 
     ruling, explaining the ACA mandate forced the corporations to 
     violate their religious beliefs. A divided U.S. Supreme Court 
     upheld the 10th Circuit's decision.
       While conservative judges frame the case as a dispute about 
     religious freedom, Hobby Lobby was also a case about women's 
     equality and the rights of employees. The ability to control 
     fertility is one of the most personal decisions a person can 
     make; for women, it goes to the heart of whether they have an 
     equal right to participate in the workforce and start a 
     family. Yet, Gorsuch deems these interests secondary to a 
     corporation's religious preferences.

  The second area the article addresses is refusing to support 
protections from pregnancy discrimination.

       Because many women will take time off from work at some 
     point in their careers for the birth of a child, the 
     Pregnancy Discrimination Act was enacted in 1978 to make 
     clear that discrimination based on pregnancy or child birth 
     constitutes sex discrimination. Yet, too many women continue 
     to confront discriminatory, outdated attitudes about their 
     ability and commitment to work simply because they are or 
     might become pregnant.
       Two of Gorsuch's former students at the University of 
     Colorado Law School allege that, during a discussion about 
     maternity leave in Gorsuch's legal ethics class, he stated 
     that employers should ask female applicants whether they 
     intend to start a family. He reportedly argued that women 
     often manipulate maternity leave policies to take time off at 
     the company's expense before leaving the company.
       When asked about this at his Senate confirmation hearing, 
     Gorsuch first denied making the comments, claiming he had 
     merely asked students a question from a teacher's text to 
     illustrate the prevalence of sex discrimination. But when 
     asked about his specific views on pregnancy discrimination 
     laws, Gorsuch raised more questions than answers. He declined 
     to say whether questioning a female and not male applicants 
     about their intent to start a family would violate the law. 
     Gorsuch's unwillingness to clearly affirm protections against 
     pregnancy discrimination is cause for concern. Women's 
     ability to participate fully and equally in the workforce 
     depends on fair treatment without regard to family 
     responsibilities.

  I am reading from the article, ``5 Ways the Nomination of Neil 
Gorsuch Threatens Women's Rights,'' March 23, 2017. The article now 
addresses the issue of undoing Roe v. Wade.

       Throughout the Presidential campaign, Trump promised to 
     nominate a Supreme Court justice who would ``automatically 
     overturn Roe v. Wade. Judge Gorsuch admitted he spoke with 
     President Donald Trump about abortion in his pre-nomination 
     interview but claimed their conversation was limited to the 
     issue's political impact.
       Gorsuch has declined to discuss his views on Rowe at his 
     hearing, beyond acknowledging that it is ``precedent.'' But 
     his writings make his position clear. Gorsuch has argued 
     against the legal principles on which Roe is founded, both 
     indirectly in his opinions and more directly in his book 
     criticizing assisted suicide. He is critical of the right to 
     privacy and the substantive due process rationale used by the 
     Supreme Court in support of this right. Without this right to 
     privacy, there is no Constitutional right to make decisions 
     about sex, reproduction, or even marriage without State 
     interference. Moreover, preserving and protecting a women's 
     constitutionally protected legal right to access abortion is 
     critical to their individual dignity and autonomy.

  That is another section in the article, ``5 Ways the Nomination of 
Neil Gorsuch Threatens Women's Rights.'' The next section is 
``Eliminating women's access to health care.'' This will be the fourth 
of the five sections.

       Conservatives have relentlessly attacked women's access to 
     quality, affordable health

[[Page S2268]]

     care, threatening their agency, health, and well-being. Among 
     the most vitriolic and inflammatory efforts: the push to 
     defund Planned Parenthood. Anti-abortion activists have 
     targeted Planned Parenthood because it provides abortion 
     services, even though those services are provided with 
     nonfederal funds and make up only a small percentage of the 
     services the organization provides. An estimated 2.5 million 
     people visit one of the 650 Planned Parenthood facilities 
     across the country each year. Eliminating funding for those 
     health centers would devastate entire communities and 
     dramatically reduce women's access to health care.
       During Gorsuch's time on the 10th Circuit, the court upheld 
     an injunction to stop Utah Gov. Gary Herbert . . . from 
     defunding Planned Parenthood in response to misinformation to 
     doctored videos that falsely accused the organization of 
     selling fetal tissue. Gorsuch, however, took the unusual step 
     of pushing for a rehearing by the full court, even though the 
     Governor did not ask for a rehearing. When his colleagues 
     declined to rehear the case, Gorsuch dissented and attempted 
     to legitimize the governor's unsupported claims.

  The fifth section in this article titled ``5 Ways the Nomination of 
Neil Gorsuch Threatens Women's Rights'' is the section on ``Denying 
women access to justice.''

       No one can vindicate their rights if they cannot even make 
     it to court. Yet, in several cases, Gorsuch has shown a 
     conspicuous penchant for barring women from litigating 
     discrimination claims.
       In Strickland v. UPS, Carole Strickland alleged that she 
     was discriminated against when she was held to higher 
     performance standards than her male coworkers, even as she 
     exceeded them in sales. The majority ruled that her case 
     could move forward, but Gorsuch filed a dissent arguing that 
     her evidence of discrimination, which included testimony from 
     multiple co-workers, was insufficient.
       In another case, Weeks v. Kansas, former counsel Rebecca 
     Weeks alleged she was fired in retaliation for advocating for 
     colleagues who experienced workplace discrimination. Upon 
     review, Gorsuch openly ignored relevant U.S. Supreme Court 
     precedent because Weeks failed to cite it and denied her the 
     right to proceed with her claim. If Gorsuch is confirmed, 
     women may face new barriers to challenging discrimination in 
     court.
       Judge Gorsuch could become a reliable vote against the 
     critical rights essential to women's equality and women's 
     progress--such as the ability to access reproductive health 
     care, including abortion, and challenge different forms of 
     sex discrimination in the workplace. Women deserve a Supreme 
     Court justice who will not turn back the clock on their 
     rights. The Senate should stand up for women and reject 
     President Trump's Supreme Court nominee.

  The author, Jocelyn Frye, is a senior fellow at American Progress, 
and coauthor Michele Jawando is vice president for legal progress at 
American Progress.
  Let's turn now to an article on money and politics. This article by 
Arn Pearson appeared in the Huffington Post. It is titled ``Gorsuch 
Would Move the Supreme Court in the Wrong Direction on Money in 
Politics.''
  The article starts out:

       Who the Senate confirms to fill the current vacancy at the 
     U.S. Supreme Court will determine the nature of our elections 
     for decades to come.
       The Court is closely divided on the issue of whether to 
     further open the floodgates for unlimited and undisclosed 
     political spending or allow limits designed to prevent 
     corruption and keep powerful special interests from drowning 
     out the voices of voters. The next justice will tip the 
     scales one way or the other.
       While the court may be split on what to do about the 
     influence of big money in politics, the American people are 
     not.
       Nine out of ten voters (93 percent) want ``a Supreme Court 
     justice who is open to limiting the influence of big money in 
     politics,'' according to recent polling. That includes 91 
     percent of Trump supporters, most of whom apparently believed 
     his populist rhetoric decrying the influence of big donors.
       Unfortunately, that's not Neil Gorsuch.
       Gorsuch hasn't handled many campaign finance reform cases, 
     but everything in his background and record strongly 
     indicates that he would favor fewer restrictions on political 
     spending by corporations and the wealthy, not more.
       The son of two lawyers, Gorsuch has spent his life moving 
     in elite legal and corporate circles, and has been a strong 
     ideological conservative since his early days. He attended 
     Columbia University and Oxford, and earned his law degree at 
     Harvard. From 1995 to 2005, Gorsuch worked at a boutique D.C. 
     corporate law firm representing corporate clients--including 
     the U.S. Chamber of Commerce--in anti-trust, class action, 
     and securities lawsuits, before briefly joining the 
     Department of Justice under George W. Bush and being 
     nominated to the U.S. Court of Appeals for the Tenth Circuit.
       The Chamber of Commerce spends more money to influence the 
     federal government than any other organization, and was one 
     of the top political spenders in 2016, making it among the 
     biggest beneficiaries of the Supreme Court's 2010 ruling in 
     Citizens United that allowed corporations to spend unlimited 
     amounts on independent expenditures and electioneering.
       Gorsuch hasn't exactly left the corporate world behind 
     since becoming a judge, and has become a millionaire in his 
     own right.
       A recent story by the New York Times documents Gorsuch's 
     close relationship with secretive billionaire Phillip 
     Anschutz, who has amassed $12.6 billion in wealth through a 
     sprawling business empire. Gorsuch represented Anschutz while 
     in corporate law practice, and Anschutz played a key role in 
     getting Gorsuch nominated to the federal appeals court.

  I am reading from an article entitled, ``Gorsuch Would Move the 
Supreme Court in the Wrong Direction on Money in Politics.''

       Gorsuch has been a frequently featured guest at the mogul's 
     annual dove-hunting retreat for the rich and powerful on his 
     Eagle Nest Ranch. At the 2010 retreat, Gorsuch spoke about 
     the importance of judicial nominations, ``especially when we 
     live in a system where judges have the last word'' on the 
     Constitution and are ``empowered to strike down 
     legislation.'' Gorsuch implored his elite audience ``to be 
     vigilant to all threats to our prosperity.''
       Not surprisingly, Gorsuch's rulings as a federal appeals 
     court judge have consistently favored large corporations over 
     consumers and workers, and indicate a willingness to overturn 
     key Court precedents that have supported efforts to reign in 
     corporate power since the New Deal.
       The big question is whether Gorsuch would use his seat on 
     the Supreme Court to further weaken anti-corruption measures 
     when it comes to political spending.
       People for the American Way joined 120 other democracy 
     reform and advocacy organizations and 110 House members this 
     week--

  This would have been March 17--

     in calling on the Senate Judiciary Committee and Senate 
     leadership to closely scrutinize Gorsuch's views on the 
     influence of big money in politics.
       ``Will Judge Gorsuch's legal philosophy lead him to strike 
     down even more protections against the use of corporate or 
     personal wealth to influence elections, such as candidate and 
     party contribution limits, or will he permit sensible limits 
     on political money in order to ensure the voices and will of 
     all Americans are fully represented within the political 
     process?'' the groups asked.
       In Citizens United v. FEC, the 5-4 majority decreed that 
     independent expenditures by corporations ``do not give rise 
     to corruption or the appearance of corruption'' and that 
     ``[t]he appearance of influence or access, furthermore, will 
     not cause the electorate to lose faith in our democracy.'' In 
     reaching that conclusion, the Court assumed that those 
     expenditures would not be coordinated with candidates, and 
     that they would be disclosed.
       Almost everyone in America thinks big money in politics is 
     a problem (94 percent) and that it ``empowers wealthy special 
     interests over everyday Americans'' (93 percent), according 
     to a recent poll.
       Taken to its logical and legal conclusion, the reasoning in 
     Citizens United--that corporations have the same right as 
     people, that money is speech, and that laws can't distinguish 
     between speakers--puts the little that remains of our 
     nation's post-Watergate scandal reforms at grave risk. So 
     far, the Court has rebuffed challenges to the federal ban on 
     direct corporate contributions to candidates and to most 
     contribution limits, but Gorsuch's confirmation could change 
     that.
       In one of his only campaign finance cases, Riddle v. 
     Hickenlooper, Gorsuch wrote a concurring opinion that 
     suggests he would apply the highest level of scrutiny to 
     contribution limits that distinguish between types of 
     contributors. To date, the Supreme Court has applied a lower 
     level of scrutiny to contribution limits, including that 
     reasonable limits only impose a marginal restriction on First 
     Amendment rights.
       Gorsuch's opinion signals that he might be willing to 
     strike down a ban on corporate campaign contributions on 
     Equal Protection grounds.
       Relatedly, Gorsuch joined the majority in the controversial 
     Hobby Lobby Stores v. Sebelius case, which relied heavily on 
     Citizens United to extend religious liberty protections to 
     corporations. Indeed, Gorsuch would like to have taken things 
     even further to hold that any individual owners of the 
     corporation could challenge laws that allegedly impinge on 
     their beliefs.
       When viewed together, those two cases support the troubling 
     conclusion that a Justice Gorsuch would be more likely to 
     expand on Citizens United's anti-reform rationale than to 
     walk it back.
       Outside spending has more than doubled since Citizens 
     United and our elections are awash in cash--most of it from 
     the super rich, and much of it secret.
       According to a new study by Demos, the Supreme Court's 
     string of decisions deregulating campaign spending over the 
     past decade was responsible for $1.3 billion in spending on 
     the presidential race and 77 percent of the money flowing 
     into competitive races in 2016.
       Campaign spending isn't charity. Most big donors have a 
     stake in government decisions and want something in return. 
     The result? Increasingly, concentrated economic power is 
     translating into concentrated political power, and the rest 
     of us are left on the sidelines.

[[Page S2269]]

       By all appearances, Gorsuch's confirmation to the Supreme 
     Court would move the country further in that troubling 
     direction by granting corporations new rights and crippling 
     government's ability to protect Americans from the exercise 
     of increased corporate power. Yet three out of four voters 
     want Congress to reject any Supreme Court nominee ``who will 
     help the wealthy and privileged wield too much power over our 
     elections.''
       It's not hard to connect the dots. Confirming Gorsuch would 
     take the country down a path very few of us want, with 
     damaging results for the health of our democracy.

  So that is the completion of the article entitled ``Gorsuch Would 
Move the Supreme Court in the Wrong Direction on Money in Politics'' by 
Arn Pearson from March 17, 2017, in the Huffington Post.
  This issue of money in politics is a huge one for the future of our 
country. If we do not succeed in reversing the decisions that have 
unleashed a flow of largely secret money concentrated in the hands of 
the megawealthy into campaigns, then there is no way that you end up 
with a House or Senate that reflects the will of the people.
  The President seemed to campaign saying that he cared about workers, 
about ordinary people, but he has nominated an individual who gives 
every indication of fully supporting the ability of money to be 
concentrated in campaigns by the most wealthiest individuals in our 
country and in fact corrupting the outcome.
  I mentioned earlier that you can see this corrupting power by looking 
at the disappearance of the interests of my colleagues across the aisle 
in the environment. It used to be that Republicans were often 
expressing a lot of interest in the sustainable management of the 
environment.
  It was President Nixon who created the Environmental Protection 
Agency and the Clean Air Act and Clean Water Act, and many colleagues 
expressed a lot of interest in taking on one of the most diabolical 
sources of pollution, carbon dioxide. But that interest has completely 
disappeared since the fossil fuel industry put ``bazillions'' of 
dollars into the Republican Senate campaigns--completely disappeared. 
Isn't that exactly the type of corruption that the Supreme Court said 
they didn't expect to see?
  Let me tell you that we have seen this pollutant, carbon dioxide, 
surge in the atmosphere. Going back 20 to 30 years ago, there was an 
increase per year in the parts per million in the atmosphere of about 
one per year. So you might go from 350 to 351 parts per million in 1 
year, and 351 to 352 the next. Now what we see is that the rate of 
pollution has increased, and we are seeing close to an increase of 2 
parts per million. This is not at one location. This is dispersed 
carbon dioxide pollution across the world. This pollutant is directly 
the product of burning fossil fuels, coal, and gas and oil.
  So we have been extracting and burning these fuels for 150 years, and 
they have greatly magnified the amount of work that can be done by a 
human. When we used to evaluate how much work you can do, we talked 
about horsepower--1 horsepower, 2 horsepower.
  I was working in a village once where I was asked to help a man whose 
nephew plowed a field in a remote hilltop, and we had a 2 horsepower 
plow. We actually had a horse and mule pulling that plow. The man told 
me that that combination was very good because the horse responded to 
commands better and got the mule to behave, and the mule was better at 
pulling the plow. So that was the combination. That was 2 horsepower. 
But when you burn fossil fuels, you create a tremendous amount of 
energy. We don't talk about our cars with 1 or 2 horsepower; we talk 
about 100 horsepower or 200 horsepower.
  Burning fossil fuels has enabled us to transform the face of this 
planet in a few generations. Sometimes that has been an extremely 
positive development--better housing, better transportation systems. 
But there is an enormous dark side to the burning of fossil fuels, and 
that dark side is the product, the pollutant, carbon dioxide. As it is 
accumulating in the atmosphere, it is providing the blanket that is 
causing the Earth to warm, and that warming is a very destructive force 
on our farming, on our fishing, and on our forests. We used to talk 
about computer models and what might happen in the future. Now we 
simply pick up a newspaper and every day there is a news story of some 
impact of global warming.
  In my home State of Oregon, we have a fire season that is two months 
longer than it was 40 years ago, with more acreage of forests burning 
and more heat doing more damage. We have the spread of insects like 
pine beetles, which would have been killed by colder winters but are 
not killed by the warmer winters. We have a snowpack in the Cascades 
that, while it can go up and down year to year, in general has been 
declining, meaning less water for streams. So we have warmer, smaller 
trout streams, and we have less water for irrigation, and we have over 
on the coast a challenge with our oysters that reflects another 
consequence of the growing pollution of carbon dioxide. That carbon 
dioxide is absorbed into the ocean. A significant amount of it is 
absorbed into the ocean and converted into carbonic acid. This acid 
then, having changed the chemistry of water, makes it much more 
difficult for sea life to form shells.
  At about the time that I was running for office--running for the U.S. 
Senate in 2007, 2008--there was a problem encountered by the Whiskey 
Creek Oyster Hatchery in that its baby oysters were not thriving, often 
dying, and they wondered why.
  They turned to researchers at Oregon State University. They thought 
maybe that this was a virus, but it was not. They thought maybe this 
was a bacteria, and it was not a bacteria. Finally, they found 
something that had been staring them in the face, which was that the 
water was too acidic. The water they were pulling through a big pipe 
out of the ocean was too acidic because of the carbonic acid. The 
result was that the baby oysters had difficulty in forming their 
shells. It is not just the baby oysters, as coral reefs are being 
profoundly impacted across the world.
  There is a researcher from Oregon State University, Professor 
Dickson, who has made studying coral reefs his life's work. He did a 
briefing here in DC. It was probably 7 or so years ago--6 or 7 years 
ago. He showed some slides of the coral reefs that he had been 
studying--what they used to look like and what they looked like today. 
He said: These reefs are my babies, and my babies are dying. They are 
dying because the temperature of the water is warmer and more acidic.
  You may wonder how this affects the corals. First, as with the oyster 
shells, they have more difficulty in forming their bodies. Coral is an 
animal, and it lives in a symbiotic relationship with algae. When the 
changes occur in the water, the algae can multiply at a rate that is 
not supportable by the coral, and the coral ejects them. This is 
referred to as bleaching. If circumstances do not change quickly, the 
coral will die because it has ejected its symbiotic partner on which it 
depends in order to live. There are reports that, over the past few 
years, 80 percent of the Great Barrier Reef, off of Australia, has 
died.
  So here we have this massive problem that is facing the planet--
carbon pollution. It is having a huge impact on our farming for 
irrigation water. Certainly, in our fishing, it is affecting things 
like coral reefs and oysters and in our forests, with there being more 
intense forest fires. Yet we here are doing so little to face this and 
address this.
  Why are we doing so little?
  We are doing so little because the coal and oil billionaires have 
proceeded to invest so much money in third-party Senate campaigns to 
elect one side of the aisle and defeat the other side. They become the 
controlling power behind what happens here on the floor of the Senate.
  Those interests, most prominently represented by the Koch brothers, 
do not want us to take on this issue of global warming and carbon 
pollution because to take it on means to transform our energy economy 
from extracting and burning fossil fuels, which they own vast amounts 
of, to clean and renewable energy, which does not create carbon 
dioxide--solar energy and wind energy. This group of companies--the 
Koch brothers and friends--is doing everything it can to make sure that 
this body sustains the subsidies we give to it and not help the success 
of the clean and renewable energy that might replace the fossil fuels.
  Look at it this way: Imagine that you have a set of doctors and they 
have

[[Page S2270]]

an enormous disease affecting a city, but the donors behind the doctors 
have a big stake and do not want them--the doctors--to address the 
illness. That is corruption, and that is what we have right here, right 
now.
  We have a Senate that is corrupted by Citizens United and dark money 
that flows through the campaigns and causes Senators who were concerned 
about the environment to decide that, if they want to stay in office, 
they had better not talk about it and they had sure better not do 
anything about it. In addition, this fossil fuel cartel wants to make 
sure it has a corps that continues this corruption. That is why they 
put so much pressure on Senators not to consider Merrick Garland when 
he was nominated last year, in 2016.
  For the first time in the history of our country, when there was a 
vacancy during a campaign year--an election year--the Senate failed to 
do its responsibility under the advice and consent clause of the 
Constitution. There were 15 times when we had previously had a vacancy 
during an election year, and 15 times the Senate had responded, but not 
last year, not on turn No. 16. Why was that? It is because the oil and 
coal cartel did not want Senators to consider a Justice who might, 
actually, end this corrupt system of the funding of campaigns.
  You can see that their influence comes on multiple levels in terms of 
direct pressure on policies for those who sit in the Senate but also in 
terms of determining who sits in the Senate to begin with. In this 
article, Gorsuch would move the Supreme Court in the wrong direction on 
money and politics. This is not just one issue among dozens of others. 
This is a key issue as to whether or not we have a ``we the 
people'' government, which we are in the process of losing. We are 
fighting this nomination because we are fighting to keep this vision--
our constitutional vision.

  Our Founders were well aware that the powerful want to have a 
government that serves the powerful. They saw it throughout Europe. 
They said: We are going to do it differently in the United States of 
America. We are not going to have a government by and for the powerful. 
We are going to have a government by and for the people.
  This is where Jefferson was concerned about whether we could sustain 
such a government--one that would make decisions that reflected the 
will of the people. He noted that we must, in order to have that 
happen, have individuals--each citizen--have an equal voice. But 
Citizens United and the philosophy for the powerful of Neil Gorsuch is 
the opposite of Jefferson's mother principle. It is the opposite of 
``we the people.'' That is why, when we come to a vote on closing 
debate on this nominee, at least 41 of us are going to stand up and 
say: absolutely not. We are going to stand for the integrity of the 
United States. We are going to stand for the integrity of our 
Constitution. We are going to stand for the integrity of the Senate, 
and we, certainly, are going to stand for the integrity of the Supreme 
Court. That vote should be 100 to zero to oppose closing debate, but at 
least 41 of us care about this Constitution, and we will be doing all 
we can to try to save our Nation.
  I am going to share an article by Paul Gordon: ``Real People, Real 
Lives: The Harm Caused By Judge Gorsuch.'' This article was written in 
February of 2017.

       When Donald Trump was running for president, he outsourced 
     his future selection of potential Supreme Court nominees to 
     two right wing organizations, the Federalist Society and the 
     Heritage Foundation. They provided him a list of 21 people 
     who were acceptable to them, Trump (the candidate) promised 
     to select a nominee from the list they gave him, and they and 
     their right wing colleagues agreed to support him. Neil 
     Gorsuch was nominated as the product of this political 
     arrangement.
       So it is no surprise that Judge Gorsuch has a history of 
     regularly finding ways to put corporations and the powerful 
     first. In that way, he is much like his idol and role model 
     Antonin Scalia and the other far right conservatives on the 
     Supreme Court. And while this unbalanced approach to cases 
     might make for interesting reading, the courtroom is not an 
     academic paper. Each case involves real people with real 
     problems. While a judicial decision might be just another day 
     at work for some judges, it is often one of the most 
     important and impactful days in the lives of the people 
     involved. Below are some of the cases Judge Gorsuch has been 
     involved with and the people who have been affected by them--
     people who have been victimized outside the courtroom and, to 
     the extent Gorsuch's view prevails, are victimized again.

  (Mr. JOHNSON assumed the Chair.)
  The article continues by turning to the case of Pinkerton v. Colorado 
Department of Transportation, 2009.

       How many men serving as Federal judges on circuit courts 
     have experienced increasingly blatant sexual harassment from 
     a supervisor over a period of weeks and months? Probably not 
     many. Perhaps that played a role when Judge Neil Gorsuch 
     joined Paul Kelly's opinion upholding the dismissal of a 
     fired woman's case alleging outrageous sexual harassment 
     and retaliation.
       Betty Pinkerton experienced two months of escalating sexual 
     harassment from David Martinez, her supervisor, at her job 
     with the Colorado Department of Transportation. The 
     harassment began in December 2002 when Martinez asked her, 
     ``What does a divorced 52 year [old] lady do when she gets 
     sexual urges?'' As she unfortunately had to do several times 
     over the next two months, Pinkerton told him he was being 
     inappropriate in asking such personal questions.
       The harassment continued through January and February. 
     Every time she made it clear that his comments were not 
     welcome, but the harassment continued.
       So on February 19, 2003, she reported the harassment to the 
     office of the civil rights administrator and formally filed a 
     written complaint on February 24. About three weeks later, 
     Martinez was removed as Pinkerton's supervisor, and on March 
     21 he was formally found to have engaged in sexually 
     inappropriate conduct with her.
       But six days later, Pinkerton was fired.
       She sued the Department of Transportation, claiming it was 
     liable for the hostile work environment Martinez had imposed 
     on her. But in Pinkerton v. Colorado Department of 
     Transportation, Judges Gorsuch and Kelly uphold the ruling of 
     a magistrate judge that she had waited too long (two months) 
     to report the harassment and the claim could not go to trial.

  But as the dissenting Judge, David Ebel, pointed out, there could 
have been justifiable reasons for the delay. Perhaps she felt the 
harassment wasn't sufficient enough to file a complaint until it 
elevated to a certain point, or maybe she thought she could get her 
supervisor to stop without the involvement of the civil rights office 
and without possibly damaging her relationships with others in the 
office.

       In addition, although this was not mentioned in the 
     dissent, perhaps the judges in the majority had insufficient 
     personal familiarity with repeated sexual harassment to know 
     the many reasons a woman might not promptly file a complaint. 
     But instead of letting a jury decide the question of fact as 
     to whether she waited ``too long,'' Gorsuch and Kelly took it 
     upon themselves to be the jurors and decided this factual 
     issue on their own.
       Pinkerton also claimed that the Department of 
     Transportation had fired her as retaliation for reporting the 
     sexual harassment, while her employer cited poor performance 
     as the cause, each side having supporting evidence. Here too, 
     Judge Gorsuch took the issue away from a jury. He joined 
     Judge Kelly's majority opinion in a detailed analysis of all 
     the evidence (like a jury would have done at trial), decided 
     that no reasonable jury would find the Department of 
     Transportation fired her for any reason but poor performance, 
     and therefore dismissed her retaliation claim.
       That's the jury's job, not theirs. As Judge Ebel noted in 
     his dissent, each side presented evidence supporting their 
     position, and the case should have gone to trial so the jury 
     could do what it is supposed to do: Determine the motive for 
     the firing. Judge Ebel listed several factors that a jury 
     might consider to determine that the employer's rationale of 
     job performance was simply a pretext for her firing. For 
     instance:
       The State Department of Transportation director testified 
     that the most serious error leading to Pinkerton's firing was 
     an allegedly mishandled call from an employee's daughter that 
     had happened about four years earlier.
       The director tried to get Pinkerton another job with the 
     state Department of Transportation only months before she was 
     fired.
       As Judge Ebel noted, ``It is a jury's function to determine 
     whether an employer acted with a retaliatory motive.'' But 
     Judge Gorsuch chose to join his colleague as the jury so that 
     Pinkerton would not have the issue decided by a jury of her 
     peers.

  I am reading from an article called ``Real People, Real Lives: The 
Harm Caused By Judge Gorsuch,'' by Paul Gordon, March 2017.
  The article now turns to the case of Caplinger v. Medtronic in 2015. 
The headline of this section is ``Medical Device Maker Pushes Misuse of 
Product: Protecting a Corporation From Its Victims.''
  It starts out saying:

       Illness can be frightening. We turn our health and our 
     lives over to medical personnel and there are many devices of 
     healing. While the physician is highly trained in

[[Page S2271]]

     medicine, the device manufacturers are highly trained in 
     selling their products to the physicians. Patricia Caplinger 
     learned this the hard way.
       Suffering from a degenerative disc condition, Patricia 
     Caplinger and her doctor discussed her options. Medtronic had 
     developed the ``Infuse Bone Graft device,'' which stimulated 
     bone growth. The FDA had only approved its use for surgeries 
     entering the body from the front, but a Medtronic 
     representative recommended an ``off-label'' usage: Enter from 
     behind to use the Infuse device. Not knowing that Medtronic 
     had evidence that such posterior approaches could actually 
     cause serious complications, both Caplinger and her doctor 
     chose to follow Medtronic's advice. The company's 
     representative was even present for the operation.
       The consequences of the company's recommendation were 
     terrible for Caplinger, because posterior use of the device 
     resulted in too much bone growth. Two or three months after 
     the procedure, her symptoms returned and worsened. She 
     developed foot drop as a result, which in turn led to a knee 
     ligament tear requiring surgery. The rapid overgrowth of new 
     bone in her spine led to additional surgery, but the 
     overgrowth continued nonetheless, requiring yet another 
     surgery.
       Because of the harm she suffered, Caplinger filed a 
     complaint against Medtronic in court. In her lawsuit, 
     Caplinger presented evidence of the lengths to which 
     Medtronic went to facilitate off-label use of its Infuse 
     product. These included bribing doctors, paying kickbacks for 
     promoting such uses, and funding misleading scientific 
     studies that provided a false impression of the safety of 
     these off-label uses.
       Nevertheless, writing for a split panel in Caplinger v. 
     Medtronic, Gorsuch agreed with the lower court that every 
     charge of Caplinger's state-law lawsuit was preempted by 
     federal law. The dissenting judge agreed in part, but 
     concluded that Caplinger's negligence and failure-to-warn 
     claims were not necessarily preempted. He wrote: ``My 
     disagreement with the majority opinion does not turn on the 
     substance of federal preemption law. Instead, our 
     disagreement turns on our respective characterization of 
     Caplinger's pleadings and understanding of the proper burden 
     at this stage of the litigation.''
       All three judges seemed to agree that Caplinger's briefs 
     were not written very clearly to address all the facets of 
     the preemption issue. One judge was willing to interpret them 
     to give her another chance to make her case, but Gorsuch 
     chose to characterize Caplinger's pleadings in such a way as 
     to ensure her case would be dismissed.
       The executives at Medtronic were very likely very relieved.

  This article, ``Real People, Real Lives: The Harm Caused by Judge 
Gorsuch'' now turns to address ``Gorsuch and Children with Autism: 
Removing the Chance to Learn Lifetime Skills.''

       When Congress passed the Individuals With Disabilities 
     Education Act, it was a major step forward in making sure 
     children with disabilities had a free and appropriate public 
     education. But Luke P., a child with autism living in 
     Colorado, was denied this right by Judge Gorsuch, negatively 
     affecting not just him but other kids throughout the Tenth 
     Circuit.
       Luke was two years old when he was diagnosed with autism, 
     and when he entered school, he had an education plan specific 
     to his needs, as required by IDEA. Between kindergarten and 
     third grade, he made significant progress in skills relating 
     to communication, self-care (including use of the toilet), 
     independence, motor skills, social interactions, and academic 
     functioning.
       But there was an enormous problem for Luke. He was 
     generally unable to transfer his skills into environments 
     other than school. So when he was home or otherwise out of 
     school, he continued to have significant problems.
       Fortunately, his parents learned about a residential 
     private school specializing in educating children with 
     autism. If he could gain admittance, Luke would live at the 
     school for 44 weeks of the year, and he would be supervised 
     24 hours a day. It was a great opportunity to not only 
     advance in the skills learned in school, but to generalize 
     them so they weren't place-dependent. His parents enrolled 
     him there with updated education goals and a new plan to 
     achieve them. They then applied to the school district to 
     reimburse them (since IDEA promises a free education). But 
     the district refused. They were willing to accept Luke's 
     updated plan, but they insisted those goals could be met at 
     the public school he'd been attending.
       His parents refused to send him back to a school that had 
     achieved some success but had also failed Luke in many 
     important ways and continued to seek reimbursement. A hearing 
     officer, an administrative law judge, and a federal district 
     court judge all agreed that Luke's inability to generalize 
     his skills demonstrated that the school district had failed 
     to provide him with the free appropriate public education 
     required by law. Only the residential program could do that, 
     meaning the district needed to reimburse Luke's family.
       Then Judge Gorsuch stepped in, taking away Luke's 
     opportunities and risking his entire future.
       Writing for a Tenth Circuit panel in Thompson R2-J School 
     District v. Luke P., Gorsuch ruled in favor of the school 
     district. They had met their obligation to Luke because all 
     they had to do was provide an educational benefit that was 
     more than de minimis. That is quite a low bar, one that could 
     easily prevent Luke and other children from acquiring the 
     critical lifetime skills they will need throughout their 
     school years and for the rest of their lives.
       Fortunately, there is hope: This term, the Supreme Court is 
     considering a different case challenging the ``de minimis'' 
     standard. A decision in Endrew F. v. Douglas County School 
     District is expected by the end of June. Luke's family and 
     families across the nation will be looking to the Supreme 
     Court to protect their children.
  What this article doesn't note is that the Supreme Court just handed 
down a decision 8 to 0 overturning the position Judge Gorsuch had in 
this case. They ruled that the IDEA Act was intended to ``provide an 
educational benefit that was more than de minimis.'' Merely more than 
nothing, I believe, was Gorsuch's standard. Merely more than nothing--
if you have done that, you have met the test. The Supreme Court said: 
No, the whole point of the act was to provide an appropriate education. 
It wasn't one or two Justices rejecting Gorsuch's writing, his 
interpretation of the law--basically, his decision to ignore the law, 
which is what he did in his decision. They ruled 8 to 0. They basically 
kicked that decision clear out of the field of common sense or a 
rational interpretation of what the IDEA Act says. So that was a 
powerful addition to that story.
  Let me return to the article. This section is called ``No Leave 
Extension for Leukemia Patient: Gorsuch's Cramped View of What Makes an 
Accommodation Reasonable.'' This is the case of Hwang v. Kansas State 
University, in 2013.

       Grace Hwang, a longtime assistant professor at Kansas State 
     University, received frightening news in June of 2009: Her 
     doctors diagnosed her as having leukemia. Without aggressive 
     chemotherapy and a bone marrow transplant, she would die. She 
     had to spend six months in medical facilities, during which 
     time she was on a paid leave of absence. But she made sure 
     her work got done: She prepared the instructors who were 
     stepping in for her, including by sharing her teaching 
     materials, lesson plans, and syllabi. Even while she was 
     hospitalized, she consulted with the substitutes through 
     phone calls and e-mails.
       In January, after her six-month ordeal, Professor Hwang was 
     looking forward to returning to work. But there was a severe 
     outbreak of swine flu on campus, and her physicians warned 
     her that, due to her compromised immune system, she should 
     stay away from campus. So she informed university officials 
     that she would need some additional leave--hopefully, a short 
     time, but potentially as long as the entire semester, 
     depending on the flu situation and her immune system.
       But the university refused to grant her additional leave. 
     Their reason? Because they have a policy that caps a leave of 
     absence at six months, which she had used up. Professor Hwang 
     sued them for violating the Rehabilitation Act, which 
     requires employers to provide a reasonable accommodation for 
     someone's disability. She was unsuccessful before the 
     district court.
       The Rehabilitation Act calls for accommodation requests to 
     be evaluated on a case-by-case basis. Every situation is 
     unique, depending on any number of factors. That is why 
     Congress chose not to set a point at which a leave of absence 
     was no longer a reasonable accommodation.
       But when Professor Hwang appealed to the Tenth Circuit, 
     Judge Gorsuch ruled against her in an opinion very much 
     focused on the length of time from its very opening (Hwang v. 
     Kansas Sate University (2013)). He set Professor Hwang up to 
     lose in the very first paragraph. He could have opened the 
     opinion in a neutral manner by asking whether extending her 
     leave would create an undue burden for the university. 
     Instead, he chose to frame the legal issue from the 
     university's perspective, casting the employer as the victim:
       Must an employer allow employees more than six months' sick 
     leave or face liability under the Rehabilitation Act? 
     Unsurprisingly, the answer is almost always no.
       Judge Gorsuch concluded that the professor simply could not 
     perform the duties of her job without being present on 
     campus, and an accommodation past six months was not 
     reasonable under the Rehabilitation Act.
       The Rehabilitation Act seeks to prevent employers from 
     callously denying reasonable accommodations that permit 
     otherwise disqualified disabled persons to work--not to turn 
     employers into safety net providers for those who cannot 
     work.
       Since Professor Hwang performed work while hospitalized to 
     ensure her classes were taught effectively in her absence, it 
     is hard to imagine that she could not do any work from home. 
     She was simply seeking a hopefully-short extension of her 
     leave so she could do her work in person without risking her 
     life. It is also difficult to see how her efforts to retain a 
     job she'd excelled at for

[[Page S2272]]

     more than a decade was just an effort to turn her employer 
     into [as Judge Gorsuch termed it] ``a safety net provider.''
       When Professor Hwang was first diagnosed, she probably had 
     no idea that her treatment would cost her her job.

  These are stories from the article, ``Real People, Real Lives: The 
Harm Caused By Judge Gorsuch.''
  The next section is titled ``Excessive Force: Immunity For Police 
Officer Who Kills Young Man Over Marijuana Plants.''

       Wilson v. City of Lafayette (2013).
       Wendy and Jack Wilson learned about Gorsuch's approach to 
     the law the hard way when they sought to hold police officer 
     John Harris accountable for needlessly killing their son 
     Ryan. Their son had been standing near an area known for 
     growing marijuana, and he admitted the plants were his. Then 
     he ran. Officer Harris chased him until Ryan reached a fence, 
     where he stopped. Officer Harris saw Ryan start to reach into 
     his pocket and warned him not to, in case it held a weapon. 
     As Ryan turned to run again, Officer Harris shot him in the 
     back of the head or neck with a Taser, killing him.
       But in Wilson v. City of Lafayette (2013), Judge Gorsuch 
     concluded that Harris hadn't used unconstitutionally 
     excessive force, so the parents' case shouldn't even go to 
     trial. Another judge observed in her dissent that Gorsuch's 
     opinion
       . . . fails to give sufficient weight to the fact that the 
     Taser used by Officer Harris on August 4, 2006, had a 
     targeting function, that Officer Harris fired at Ryan Wilson 
     from only ten to fifteen feet away, and the training manual 
     specifically warned officers against aiming it at the head or 
     throat unless necessary.
       Given all this, the Wilsons certainly had a legal argument 
     of excessive force they should have been able to present at a 
     trial. But Gorsuch shut that possibility down. After losing 
     their son, they lost the opportunity to hold anyone 
     accountable for his completely unnecessary killing.
       So much for ``And Justice For All.''

  The next story in this article, ``Real People, Real Lives'' is 
``Worker Dies Due to Inadequate Training, but Gorsuch Tries to Rule for 
the Company,'' the case of Compass Environmental, otherwise known as 
the case of the electrocuted miner.

       Chris Carder also died needlessly, but in this case it was 
     from a workplace accident in which he was electrocuted. 
     Carder worked as a trench hand at a mine site, which involved 
     using rubber and metal hose with a metal nozzle to dispense 
     grease. Since there was a live power line crossing over the 
     construction site, the safety training everyone received 
     warned trench hands and others to keep at least twenty feet 
     from the powerline. However, Carder started on the job a week 
     after everyone else and, in a decision that had tragic 
     consequences, this safety measure was not included in 
     Carder's individual training. An accident ensued when the 
     nozzle was too close to the power line, and Carder was 
     fatally electrocuted.
       Looking into the accident, the Department of Labor's 
     Occupational Safety and Health Review Commission (OSHRC) 
     concluded that Carder could have avoided electrocution had he 
     been adequately trained by his employer (Compass 
     Environmental) about the highly dangerous situation he 
     faced--training that the other on-site employees had 
     received. OSHRC [Occupational Safety and Health Review 
     Commission] issued a serious citation against Compass for 
     inadequate training, and it imposed a financial penalty 
     against the company. This was upheld by a Tenth Circuit 
     panel, but with Judge Gorsuch in dissent.
       While the majority in Compass Environmental v. OSHRC (2011) 
     criticized Gorsuch's case analysis, perhaps most striking was 
     Gorsuch's decision to open his dissent with an ideological 
     criticism of federal agencies in general:
       Administrative agencies enjoy remarkable powers in our 
     legal order. Their interpretations of ambiguous statutes 
     control even when most everyone thinks Congress really meant 
     something else. Their regulations bind as long as they can 
     make the modest boast that they haven't behaved arbitrarily 
     or capriciously. Their factual findings rule the day unless 
     someone can show they have not just erred but clearly erred.
       Gorsuch wrote that this was such a case, where the agency 
     had erred in finding Compass had violated the law. But the 
     superfluous ideological introduction cast a shadow on his 
     entire approach to the case and whether he analyzed it as a 
     disinterested judge or as an anti-government conservative 
     seeking to use his position on the federal bench to make a 
     political point. Either way, if it had been up to Gorsuch, 
     the company responsible for Carder's death would not have 
     been held accountable.

  Well, it wasn't up to Gorsuch, because the majority of the panel 
said: Yes, of course if you put a worker in a highly dangerous 
situation, you have the responsibility to train them about that 
situation. Somehow, Gorsuch managed to find the opposite conclusion: If 
you put a worker in a highly dangerous place and don't train them, that 
is OK, even if they die as a result.
  I am reading stories from the article, ``Real People, Real Lives: The 
Harm Caused By Judge Gorsuch.'' The next section is, ``Die or Be Fired: 
The Case of the Frozen Trucker.'' I have relayed the facts of this 
several times since I began speaking a few hours ago, so I will try to 
do an abbreviated version of this.

       TransAm Trucking v. Administrative Review Board (2016).
       While Chris Carder died on the job, Alphonse Maddin was 
     fired for not dying on the job. He was a truck driver hauling 
     cargo in subzero weather, and the brakes on his trailer 
     froze. He stopped, called the company to report the problem, 
     then waited for a repair person. Unfortunately, the heater in 
     the cab of the truck was broken, wasn't working, so after a 
     couple of hours, his body became numb, his speech was 
     slurred, and he couldn't feel his feet at all. He called the 
     company two more times and reported his increasingly perilous 
     state; he was even having trouble breathing.
       Maddin unhitched the trailer from the truck. With the 
     repair person still not there, he called the company to let 
     them know he was leaving to get help, but he was told not to 
     leave the trailer behind. He was given two choices: Drag the 
     trailer despite its frozen brakes (either impossible or 
     wildly dangerous), or keep waiting for the repair person in 
     the cold and put his own life at risk.
       Rather than die in the cold, Maddin drove off in the truck 
     for help, leaving the trailer behind and returning with 
     assistance in about 15 minutes. A week later, the company 
     fired him for abandoning his cargo. The Labor Department 
     found that the company had violated whistleblower 
     protection regulations, since Maddin had reported a 
     problem, not obeyed an order relating to that problem that 
     could have killed him, and was fired for it.
       Not surprisingly, . . . a panel of Tenth Circuit judges 
     upheld the Labor Department's actions. But Judge Gorsuch 
     dissented. The Surface Transportation Assistance Act protects 
     a worker from refusing to operate an unsafe vehicle.

  I am now interjecting--which is what he did because he refused to 
drive with that trailer attached with the frozen brakes, which could 
have endangered many people on the road.
  Now I will return to the article.

     . . . a panel of Tenth Circuit judges upheld the Labor 
     Department's actions. But Judge Gorsuch dissented. The 
     Surface Transportation Assistance Act protects a worker from 
     refusing to operate an unsafe vehicle, but Gorsuch reasoned 
     that the driver wasn't ``refusing to operate'' anything at 
     all; instead, he was choosing to operate the vehicle in a way 
     that he'd been instructed not to. And that, wrote Gorsuch, 
     isn't covered by the law.

  And that is how a person who wants to be a legislator turns the law 
on its head, to reverse the outcome clearly laid out in the law to 
begin with.
  Back to the article.

       So according to Gorsuch, a law passed to protect workers 
     from being forced to drive unsafe vehicles doesn't cover 
     workers who drive away to avoid the particularly unsafe 
     situation of death. The law empowers companies to make 
     workers choose between their jobs and their lives, according 
     to Gorsuch. Fortunately, Maddin survived his ordeal and 
     Gorsuch's analysis did not carry the day.

  The next section of this article, ``Real People, Real Lives: The Harm 
Caused By Judge Gorsuch''--the title is ``Defer to the Governor, Facts 
Notwithstanding: Gorsuch Turns a Blind Eye to an Unlawful Effort to 
Defund Planned Parenthood.''
  This is also a case that I have read a fair amount about in the 
course of the last few hours, so I will just summarize it.
  The Governor of Utah said: Well, there is this video out, and it is 
about a program in which Planned Parenthood sells tissue for research. 
I don't like what they are doing, so I am going to refuse to provide 
State funds to Planned Parenthood.
  Planned Parenthood basically pointed this out: Well, first, the video 
didn't have anything to do with Utah. Second of all, Planned Parenthood 
in Utah is not involved in this tissue research program, so it had 
nothing to do with us in that regard. And refusing to provide State 
funds to us is unequal treatment under the law and unconstitutional.
  The case was tried, and the judges found for Planned Parenthood for 
all the reasons I just mentioned. Neither the Governor of Utah nor 
Planned Parenthood saw any reason to appeal this. Planned Parenthood 
had won, and the Governor recognized that there were seriously strong 
arguments that had been made. But Gorsuch did something very unusual: 
He asked the Tenth Circuit to reconsider the decision of the three-
court panel en banc, which means with all the judges of the Tenth

[[Page S2273]]

Circuit. He essentially retried the entire case with a larger group. 
Gorsuch accused the majority of not showing ``the sort of comity this 
court normally seeks to show the States and their elected 
representatives.''
  Let's treat the Governor nicely. The job of the court is not to treat 
the Governor nicely; the job is to determine whether someone's rights 
have been violated or whether someone has suffered damage that needs to 
be compensated.
  One of the fellow judges in the majority criticized Gorsuch's 
mischaracterization of the record, and he noted that Gorsuch 
``mischaracterizes this litigation and the panel opinion at several 
turns.''
  The article continues:

       It would be hard to estimate how many women would have 
     become ill or died if Judge Gorsuch had been in the majority.

  The next section of this article, ``Real People, Real Lives: The Harm 
Caused By Judge Gorsuch'' is titled ``No Understanding of Another's 
Perspective: The Department Of Motor Vehicles and the Rehabilitation 
Act.'' This is the case of Barber v. Colorado.

       Julianna Barber and her mother, Marcia Barber, learned just 
     how out of touch Judge Gorsuch could be . . . and the pain 
     that he would impose on people with disabilities and their 
     families. Fifteen year-old Julianna wanted to practice her 
     driving. Colorado law restricted her to driving with a parent 
     or guardian with a driver's license. Since her mother Marcia 
     was blind and therefore didn't have a license, she asked the 
     DMV for a reasonable accommodation: Let Julianna drive with 
     her grandfather. After consulting with the State attorney 
     general, the DMV refused, but suggested that Marcia could 
     give Julianna's grandfather some form of guardianship. She 
     refused to even discuss signing away her parental rights, and 
     the family sued under the Rehabilitation Act.

  The Barbers lost in the Tenth Circuit with a panel consisting of 
judges nominated by Ronald Reagan, George H.W. Bush, and George W. Bush 
in Barber v. Colorado. The majority acknowledged that the State had 
discriminated against Marcia Barber but ruled against her because she 
refused to negotiate with the DMV over reasonable accommodation.

       But Judge Gorsuch wrote a concurrence going even further: 
     Citing Colorado Revised Statute Section 15-14-102(4). Gorsuch 
     pointed out that the guardian for purposes of driving does 
     not have to be someone with full guardianship authority. He 
     also cited Colorado Revised Statute 15-14-105's provision 
     that a parent can delegate ``any power,'' however small, 
     ``regarding care, custody or property'' of a child to someone 
     else. Therefore, all Marcia Barber had to do was find a sheet 
     of paper and write that Julianna's grandfather had the right 
     to supervise her driving. She wouldn't need to file the paper 
     in court or go through any other formal process. According to 
     Gorsuch, this option is available to anyone, does not 
     discriminate against anyone based on disability.
       The DMV wasn't even required to make a reasonable 
     accommodation for the family. At no point in the opinion is 
     there any suggestion that Marcia Barber understood that the 
     DMV was talking about anything but surrendering some of her 
     parental rights, so it was not surprising that she wouldn't 
     consider discussing it further. No reasonable judge can 
     expect a regular person to be sufficiently familiar with the 
     details of Colorado statutes to know everything about 
     guardianship that he cites. How would she know this?
       Gorsuch's inability to comprehend the worldview of another 
     person is perfectly captured in the footnote to his 
     concurrence.

  The article says it is worth quoting in full. Here is that footnote:

       Plaintiffs argue that, in a February 23, 2005 letter, the 
     State misrepresented its Colorado law by asking Ms. Barber to 
     sign a document giving full, not limited, guardianship 
     authority to another person. The letter, however, simply 
     stated that, for the ``youngest of drivers just learning to 
     drive,'' State law required ``that they be under the direct 
     and immediate supervision of someone with full parental 
     authority.'' By definition, a limited guardian has full 
     parental authority, albeit for prescribed purposes, sometimes 
     even very modest purposes (such as the supervision of a minor 
     while driving). The State thus did not misrepresent to 
     plaintiffs the availability or nature of its limited 
     guardianship statutes.
       Perhaps 95 to 99 percent of the Nation's population, like 
     Marcia Barber, would not know that someone with full parental 
     authority could include someone whose only authority is 
     permission to supervise her daughter's driving. A good judge 
     recognizes that different people can reasonably interpret the 
     same thing differently based on their different education, 
     upbringings, and life experiences.

  I think if somebody told me that they wanted me to grant full 
parental authority to someone else, I certainly would say: Hold on. 
That is not happening.
  What Neil Gorsuch points out is that full parental authority can 
apply to a very small set of activities, but the phrase ``full parental 
authority'' implies a broad range. How would an ordinary citizen 
possibly know the point Neil Gorsuch is making? And therefore I think 
virtually everybody would respond the way she did. Full parental 
authority--I am going to pass that away? No, of course not. Why don't 
they call it limited or special cause parental authority? Then maybe an 
ordinary person might have some idea. But that was not the case.
  The next section in ``Real People, Real Lives: The Harm Caused By 
Judge Gorsuch'' is titled ``Sex Discrimination: Never Mind the 
Evidence.''

       Many of the appeals before the 10th Circuit involve 
     plaintiffs whose cases were dismissed before trial or jury 
     verdict because (the trial judge ruled) they had not 
     presented enough evidence to possibly support their legal 
     claim. That is what happened to Carole Strickland, a UPS 
     driver who was promoted to key account executive. She 
     presented evidence that she had been the subject of sex 
     discrimination at the new job and quit under pressure.
       Her coworkers testified that supervisors treated her 
     differently than her male colleagues. Even though Strickland 
     met between 93 and 104 percent of her sales quotas and was 
     outperforming at least some of her coworkers on every 
     measure, only she was required to attend individual meetings 
     with the supervisors. Only she had to make written sales 
     commitments, even though no one was at 100 percent of every 
     sales quota. One of the men in her office had lower 
     performances than Strickland in almost every sales measure, 
     but he was not required to attend meetings to discuss 
     performance, was not denied assistance, and was not counseled 
     for failing to reach 100 percent in every sales measure.
       At the same time, UPS pointed out that there was one other 
     woman in Strickland's office, and she did not report being 
     treated differently. In addition, there had been one man 
     among the staff whose treatment approached that given to 
     Strickland. The district court ruled that she didn't have a 
     case and dismissed it.
       The Tenth Circuit panel of judges who heard her appeal in 
     Strickland v. UPS (2009) disagreed. While her employer's 
     evidence might have undercut Strickland's case, she had 
     nevertheless presented enough evidence for a jury to consider 
     her arguments, consider UPS's arguments, and conclude that 
     she had indeed been subject to unlawful sex discrimination.

  That is what the 10th Circuit said.

       Judge Gorsuch dissented, deciding for himself that 
     Strickland's supervisors were not motivated by sex 
     discrimination. Therefore, Gorsuch concluded, since no 
     reasonable jury could agree with Strickland about the cause 
     of her treatment, her case should be dismissed before she 
     could make her case to a jury.
       Everyone deserves their day in court. Except for some 
     people.

  In case after case that I have been talking about in the course of 
the last few hours, we see that the judge said: No, we are going to 
stop that person from ever getting their day in court. Generally, the 
article attacked the conduct of a powerful corporation.
  The next section of ``Real People, Real Lives'' is regarding ``The 
Most Vulnerable: Children With Disabilities.'' This case is ``A.F. v. 
Espanola Public Schools (2015).''

       The Individuals with Disabilities Education Act, IDEA, 
     ensures that students with disabilities are provided ``free 
     appropriate public education.'' Under the law, such children 
     have individualized education programs designed to provide 
     educational benefits. Congress included a requirement that if 
     a parent believes their child's needs are not being 
     addressed, . . . they must first exhaust the administrative 
     remedies IDEA makes available before they can go to court. 
     Congress has also passed other laws relevant to children with 
     disabilities, some of which have remedies that IDEA lacks. 
     They also require all IDEA administrative remedies to be 
     exhausted first before going to court.

  A.F., a child with dyslexia, had her case heard on appeal by Judge 
Gorsuch who read IDEA to limit parents' options to most effectively 
address their children's educational needs. A.F.'s mother Christine 
felt the school hadn't adequately assessed her daughter and created an 
IEP [an Individual Education Plan] for her as IDEA requires. She filed 
a complaint and reached an agreement in which the school recognized 
that A.F. had a disability. Believing she had met the requirement to 
exhaust IDEA's administrative remedies, she then went to court to 
obtain remedies available under statutes like the Rehabilitation Act 
and the Americans with Disabilities Act.

       But in A.F. v. Espanola Public Schools . . . Judge Gorsuch 
     shut her down. Writing for a

[[Page S2274]]

     divided panel, he ruled that she hadn't exhausted her 
     administrative remedies because she had reached a settlement 
     with the school district on her IDEA case. To pursue relief 
     available only through statutes other than IDEA, he 
     concluded, a parent must refuse to resolve the IDEA claim.
       Judge Mary Beck Briscoe pointed out the bind Judge Gorsuch 
     was imposing on parents with children with disabilities, 
     against Congressional intent.

  Judge Briscoe wrote:

       [Judge Gorsuch's] interpretation is inconsistent with the 
     very purpose of IDEA. It forces a claimant to choose between 
     mediating a resolution to her IDEA claim . . . and thereby 
     obtaining some or all of the relief sought under IDEA . . . 
     ,or forgoing any relief at all and waiting (while the child 
     ages and potentially continues to receive something other 
     than the requisite ``free appropriate public education'') in 
     hopes of later filing suit and obtaining relief under both 
     IDEA and other statutes.

  So his position just places the parent in an impossible situation and 
obviously a good share of the panel disagreed. Of course there are 
parallels there on that IDEA case to the autism case that we looked at 
earlier. Certainly, in both cases, the judge was not sympathetic to the 
role of the family seeking an appropriate education for their child. In 
the autism case, the Supreme Court just recently overturned Judge 
Gorsuch and the principle he asserted, which is basically all that was 
required of the school district was ``merely more than de minimus,'' 
merely more than nothing. That is inconsistent with the whole purpose 
of the IDEA, which is to provide a free appropriate public education. 
So here again, we see much the same attitude being displayed, an 
attitude of rewriting the law to be something that it clearly is not.
  ``The Sixth Amendment: Undermining the Right to Counsel. Williams v. 
Jones.'' I am reading another section from ``Real People, Real Lives: 
The Harm Caused By Judge Gorsuch.''

       Perhaps no government power is more awesome--and more 
     dangerously susceptible to abuse--than the right to imprison 
     someone, completely taking away their freedom. Because our 
     liberties require robust protection, the Bill of Rights 
     establishes certain requirements that the government must 
     meet before it is allowed to exercise its authority to lock 
     any of us away. Since the criminal law can be used mistakenly 
     or even inappropriately against anyone, these procedural 
     requirements are guarantors of our freedom.
       The Founders recognized that unjustified imprisonment would 
     be less likely if each criminal defendant had someone 
     advocating for them who knew the law inside and out. Hence, 
     the Sixth Amendment guarantees that the criminally accused 
     ``shall enjoy the right . . . to have the Assistance of 
     Counsel for his defence.'' As a constitutional provision that 
     is part of the Bill of Rights, this indicates that, as a 
     nation, we believe that no one should be stripped of their 
     freedom just because they are not experts in the law.
       But Judge Gorsuch appeared to disagree, as he showed in 
     2009 case of Williams v. Jones. In this case, Michael 
     Williams was being prosecuted for first-degree murder. The 
     prosecution offered him a deal which he would plead guilty to 
     a lesser crime (second-degree murder) and he would serve ten 
     years in prison. Williams wanted to accept. However, his 
     attorney said that if Williams accepted the deal, he 
     (Williams) would be committing perjury and the lawyer 
     would withdraw from the case.
       Faced with this terrible legal advice and threat from his 
     attorney, Williams reluctantly rejected the plea deal and 
     went to trial. He was found guilty of first-degree murder and 
     sentenced to life in prison without parole.
       At the Tenth Circuit, the panel majority addressed the 
     appropriate remedy for the unconstitutional ineffective 
     assistance of counsel. While the remedy was not an easy issue 
     to address, the majority had no difficulty whatsoever in 
     identifying the constitutional violation. Indeed, a state 
     court in Oklahoma had already found that there was a Sixth 
     Amendment violation in this case.
       Judge Gorsuch dissented both from the panel decision and 
     from the whole court's decision not to reconsider the case en 
     banc. He found no constitutional violation in the first 
     place, because he claimed that the right to effective 
     assistance of counsel only covers the trial, not any pretrial 
     plea bargaining. Since the trial itself appeared to be fair, 
     Gorsuch concluded, Williams didn't have a case. He wrote that 
     ``due process requires a fair trial, not a good bargain.''

  A little commentary here: What Judge Gorsuch was doing was saying 
that the Sixth Amendment right to legal assistance is only in the case 
of the trial, not in the legal work done before the trial starts. That 
is what is being referred to by the panel majority as an ``extremely 
cramped view of the right to counsel.''
  So the article continues:

       The panel majority harshly criticized this extremely 
     cramped view of the right to counsel, noting that it had been 
     rejected by the Supreme Court and was ``incompatible with 
     [the Supreme Court's precedents involving] a right to 
     effective assistance of counsel in connection with the entire 
     plea process.'' When the circuit without comment declined to 
     reconsider the case en banc, one judge wrote . . . a 
     concurring opinion solely to correct the errors in Gorsuch's 
     dissent. They cited the Supreme Court's prior holdings and 
     statements that would have made no sense if the Sixth 
     Amendment's right to counsel didn't apply at the pretrial 
     plea-bargaining stage.
       The Sixth Amendment protects both the guilty and the 
     innocent. Judge Gorsuch's narrow interpretation is 
     particularly frightening in the age of Trump.

  That concludes that section. But it certainly is disturbing that Neil 
Gorsuch made a decision that completely disregarded the Supreme Court 
precedents and made no sense because when you have a lawyer, that 
lawyer is assisting you through the legal process. Part of that is the 
negotiation that occurs before you are actually in court. It is all 
part of the process of your case being considered. To try to put up a 
wall and say the Sixth Amendment does not apply to any of the legal 
work done, including negotiations over a potential plea, makes no 
sense.
  So you have Judge Gorsuch writing his own law, ignoring the Supreme 
Court precedents, and being reprimanded, in essence, by the panel 
majority.
  Returning to the article, ``Real People, Real Lives,'' the conclusion 
of the article reads as follows:

       These are far from being the only people who have been or 
     could have been greatly harmed by the way Judge Gorsuch 
     approaches cases. When Gorsuch's view carry the day right 
     now, the damage he does is limited to States covered by the 
     Tenth Circuit; he has also been limited by the Supreme Court 
     precedent he may disagree with. Were he to be elevated to the 
     High Court, however, he would be in a position to overrule 
     precedents that have gotten in his way over the past 10 
     years, and the damage he would impose would be nationwide and 
     unreviewable.
       Judge Gorsuch may be affable and have many friends, but 
     that is not at all relevant to whether he should be confirmed 
     to the Supreme Court. Few if any of the parties Gorsuch has 
     unfairly ruled against would feel better knowing that he is 
     reputed to be a great guy outside the courtroom.

  So, that is the article ``Real People, Real Lives: The Harm Caused By 
Judge Gorsuch.''
  The next article is from the New York Times by Emily Bazelon and Eric 
Posner from April 1, 2017. No, this was not an April Fools' article. 
This is a serious article: ``The Government Gorsuch Wants to Undo.'' It 
starts out as follows:

       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 advisor 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 
     is 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 the ruinous competition 
     among companies. In 1933, Congress passed the National 
     Industrial Recovery Act, which 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

[[Page S2275]]

     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 rulemaking to the president, the N.I.R.A. 
     violated the Constitution's separation of powers.
       The court's ruling in the Shechter 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.'' Shechter Poultry's stand 
     against executive-branch rulemaking 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 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 in 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.

  I am reading from the article ``The Government Gorsuch Wants to 
Undo'' by Emily Bazelon and Eric Posner. It continues:

       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 in 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 EPA sought to weaken a rule, issued 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 EPA 
     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 EPA and any agency could determine the meaning of an 
     ambiguous term in the law. The rule came to be known as the 
     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 used 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 loan crisis in 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 Shechter 
     Poultry all over again.
       And Judge Gorsuch has fortunately 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) Shechter Poultry. Never mind that the Supreme 
     Court has not since relied on its 1935 attempt to scuttle the 
     New Deal. Nonetheless, Judge Gorsuch wrote that in light of 
     Shechter 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 overturn Chevron without saying so directly, noting 
     that the administrative state existed long before 1984. The 
     implication is that little would change referring to the 
     E.P.A.'s or Department of Labor's reading of a statute. 
     Judges would interpret the law. Who would object to that?

  But here's the thing: Judge Gorsuch is skeptical that Congress can 
use broadly written laws to delegate authorities 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.

  That is the conclusion of the New York Times article ``The Government 
Gorsuch Wants to Undo'' by Emily Bazelon and Eric Posner, dated April 
1.
  The next article I will share with you is an editorial from November 
7, and I believe the other is from December 24 of 2016. This is by the 
editorial board of the New York Times, and it reads as follows:

       People don't usually remember it this way, but on December 
     13, 2000, Vice President Al Gore gave one of the most 
     important speeches in American history. Mr. Gore had 
     contested initial results of the Florida vote count and 
     prevailed in Florida State courts, but the Supreme Court had 
     voted 5-to-4 the day before to end the recount and 
     effectively hand the presidency to George W. Bush.
       ``Now the U.S. Supreme Court has spoken,'' Mr. Gore said. 
     ``Let there be no doubt, while I strongly disagree with the 
     court's decision, I accept it.'' The frenzied battle over a 
     few hundred votes had spawned intense anger across the 
     country--but it had been resolved ``as it must be resolved, 
     through the honored institutions of our democracy.''
       Mr. Gore's concession that night still stands as the most 
     powerful reaffirmation in modern times of the Supreme Court's 
     unique and fragile role in the American system of government. 
     Millions of people were furious in the justices' decision in 
     Bush v. Gore--many believed it was the result not of legal 
     reasoning but of rank partisanship--and yet virtually 
     everyone followed Mr. Gore's selfless lead, accepted the 
     court as the final arbiter of the dispute, and moved on. 
     There were no riots in the streets, no attempted coups, no 
     ``Second Amendment solutions.'' There was, instead, a 
     peaceful transfer of power: the hallmark of a civil society 
     operating under the rule of law.
       Sixteen years later, the Supreme Court sits crippled, 
     unable to resolve the most pressing legal questions before 
     the country. Two events--the sudden death of Justice Antonin 
     Scalia in February and the unprecedented refusal of Senate 
     Republicans to even consider President Obama's pick to fill 
     the vacant seat--have converged to throw the court's future 
     as a functioning institution into doubt.
       This scenario would have seemed unimaginable a year ago. 
     But Tuesday's vote--for president and for control of the 
     Senate--will determine whether the court remains short-handed 
     for months or, as Republicans are now threatening if they 
     hold the Senate, for years.
       Last month, Senator Richard Burr, of North Carolina, told 
     supporters that if Hillary Clinton wins, ``I am going to do 
     everything I can to make sure four years from now, we still 
     got an opening on the Supreme Court.'' Senator Ted Cruz of 
     Texas suggested he was happy with the current situation, and 
     said, ``There is certainly long historical precedent for a 
     Supreme Court with fewer justices.'' Even Senator John 
     McCain, who once joined with Democrats in an effort to 
     depoliticize the judicial nomination process, recently told a 
     radio show, ``I promise you that we will be united against 
     any Supreme Court nominee that Hillary Clinton, if she were 
     President, would put up.''
       Step back for a moment and consider the radical absurdity 
     of this position. Senate Republicans first justified their 
     refusal to hold hearings or a vote on Mr. Obama's nominee 
     before the presidential election because ``the people's 
     voice'' needed to be heard. That was always a transparent 
     lie. Now, apparently believing their candidate, Donald Trump, 
     will lose, they are acting as though the Supreme Court is the 
     property of the Republican Party.
       This mind-set isn't just a matter of a few senators going 
     rogue. Leading conservative groups are embracing the 
     argument, happy to destroy a principle of American politics--

[[Page S2276]]

     to privilege partisanship over the Constitution itself. Ilya 
     Shapiro, a senior fellow at the influential Cato Institute, 
     wrote two weeks ago that ``it would be completely decent, 
     honorable, and in keeping with the Senate's constitutional 
     duty to vote against essentially every judicial nominee'' a 
     President Clinton would name. Last Thursday, the Vice 
     President of Heritage Action for America, a top conservative 
     think tank, said Senators McCain, Burr and Cruz were taking 
     ``exactly the right position,'' and that an effective, long-
     term blockade of the court will require ``an immense amount 
     of willpower'' from Senate Republicans.
       A small number of Republican senators have expressed 
     discomfort with this idea, but when was the last time public 
     interest won out in today's Republican Party?
       The indefinite blockade not only hobbles the justices' 
     ability to resolve current cases, it takes open aim at the 
     court's legitimacy as the sole unelected branch of 
     government. Because the court ``has no influence over either 
     the sword or the purse,'' as Alexander Hamilton wrote in the 
     Federalist Papers, its legitimacy and authority depend 
     entirely on the shared public acceptance of its verdicts.
       Today's Republicans are essentially saying the court is 
     nothing but another political body, and that justices should 
     be treated as ideological sock puppets of the president who 
     nominated them. Yes, the justices come with political beliefs 
     and backgrounds, but that makes it all the more important to 
     demand that they work harder than the rest of us to struggle 
     and preserve their independence. This is why, for instance, 
     Justice Ruth Bader Ginsburg was wrong to comment on Mr. 
     Trump's candidacy--words for which she later apologized.
       Until this year, no one disputed that the president should 
     have wide latitude in picking justices. In 1993, Senate 
     Republicans voted overwhelmingly in favor of Justice 
     Ginsburg, President Bill Clinton's first nominee. And even 
     though they voted in large numbers against Mr. Obama's first 
     two nominees, Sonia Sotomayor and Elena Kagan, they did not 
     try to block those nominations from going forward. Senate 
     Democrats voted unanimously to confirm Ronald Reagan's choice 
     of Justice Scalia in 1986 and allowed full votes on Robert 
     Bork and Clarence Thomas, both of whom they strongly opposed.
       In 2016, Republicans have blown this delicate balance to 
     pieces, all to keep a conservative majority. Of course, the 
     court has had a majority of Republican-appointed justices for 
     nearly half a century, through the normal processes of advice 
     and consent. But now, Republicans want to maintain that 
     majority, even if that means tossing out all political norms. 
     This majority, they hope, would promote a world view where 
     fewer people have rights, where women do not have 
     reproductive choices, where lawmakers can make it harder for 
     minorities to vote, where religious people are free to 
     disregard laws protecting people they don't like. Such a 
     court could use a severe interpretation of the Constitution 
     to ensure that American politics can be flooded with 
     unlimited money, that reasonable gun restrictions are struck 
     down, that corporate interests prevail over those of 
     consumers, and that basic environmental regulations are 
     turned back.
       Make no mistake: That is the court Americans would get 
     under a President Trump. Still, Senate Democrats would have 
     an obligation to consider and vote on his nominees, just as 
     Republicans would have that obligation to Mrs. Clinton's 
     choices. No doubt, there would be Democratic voices demanding 
     that their Senators mimic the Republicans' shameful example. 
     But the Constitution asks more of us than that. In the next 
     Congress, regardless of who wins on Tuesday, the very 
     survival of the court as an independent body will be at 
     stake.

  I certainly agree that the very survival of the Court as an 
independent body is at stake right now. That is why I am here on the 
floor at 4:20 in the morning. It is because so much is at stake in 
terms of the legitimacy of the Court.
  This is probably a good moment to return to the central premise of 
where we are. Where we are is that for the first time in U.S. history, 
a seat has been stolen from one President and delivered to another in a 
Court-packing scheme. If that were to succeed, it would set a precedent 
that would haunt the Court for decades to come, and it will haunt this 
body, the Senate, because if a theft succeeds, then it changes the 
analysis of every future Supreme Court vacancy.
  If there is a vacancy and it is an opportunity for the Democrats to 
steal a seat back and deliver it to a future President who might be a 
Democrat, will they do so, and would they be right in doing so--to 
rebalance the Court after a seat has been stolen? We should never have 
to ask these questions--questions such as, if you can steal a seat and 
get away with it, when a seat becomes vacant a year before a President 
leaves office, can you do it 2 years before the President leaves 
office? Can you do it for 3 years? Can you keep a seat vacant for 4 
years, as suggested by the article I just read and the comments of some 
of my colleagues in that they would be determined to reject any nominee 
put forward by Hillary Clinton? These questions are being asked because 
of this crime against our Constitution--the crime of stealing a Supreme 
Court seat in an effort to pack the Court.
  The second big issue we are facing is the investigations underway of 
the Trump campaign and its possible coordination with the Russians to 
change the outcome of the election.
  We know a lot about what the Russians did. We know they created false 
news stories. We know they had a team estimated to be 1,000 individuals 
in a building, doing social media to amplify the impression that 
Americans were writing negative comments about Hillary Clinton. We know 
they had a system of bots--a botnet, if you will--to use computers to 
respond and add commentary on comments people were making on social 
media so that it looks like there are far more people--far more 
disgruntled individuals--who were criticizing the Democratic nominee. 
We know that their strategy involved trying to influence the outcome in 
terms of groups like Facebook, identifying something as ``trending'' 
and then putting it up as ``trending news'' so that the false news, now 
being driven by the thousand social media folks in some building and 
the botnet, is amplified to the degree that it is now scrolling on your 
Facebook, looking like very legitimate news. We know the Russians broke 
into computers to obtain information and worked to release it in a 
fashion that was designed to damage the Presidential nominee from the 
Democratic Party.

  That is a pretty comprehensive strategy of fake news and fake social 
media comments and botnet-generated comments and breaking into 
computers to secure information and release it in a fashion to damage 
the Democratic nominee, Hillary Clinton. We will learn more about all 
of those things, but that is a pretty good list of serious attacks on 
the United States of America, attacks on the integrity of our electoral 
system.
  What we do not know--and why there are investigations underway--is 
how much the Trump campaign communicated with and conspired with that 
Russian operation. Each day, drip by drip, we hear more about some 
contact. This morning, it was the media and the Seychelles that we did 
not know about previously. Every day, it seems like there is one little 
additional piece, and we do not know where it will all lead to, if 
anywhere. Maybe it leads nowhere, but we must pursue it because if 
anyone conspired with the Russians to undermine the integrity of our 
elections and change the outcome of the elections, that is traitorous 
conduct, and it must be prosecuted to the full extent of the law.
  Right now, we do not know a lot about how much communication and how 
much potential collaboration or conspiracy there was, so we have 
investigations to get to the bottom of it. The FBI has an investigation 
into it, as well as the House Intelligence Committee and the Senate 
Intelligence Committee, and we should not be considering this 
nomination while those investigations are underway.
  Of course, a third significant reason that we should not be pursuing 
this is that the President failed to recognize the role of the 
supermajority requirement--the 60-vote requirement--that anyone who 
serves on the Supreme Court should be able to get bipartisan support 
from 60 Members. Therefore, nominating somebody from the far right, the 
extreme right, and all of the opinions we have talked about over the 
last many hours are related to crushing the rights of individuals and 
helping the most powerful. Certainly an individual who is at that far 
point in the spectrum is not from the mainstream of judicial thinking. 
It is another reason this should be set aside.
  Then we have that information that came out at about 11 p.m., earlier 
this evening, Tuesday time. Now we are 5\1/2\ hours later, but the 
information was about the number of cases in which Neil Gorsuch had 
lifted passages from others virtually word for word without giving them 
credit. That is known as plagiarism. Hopefully, that issue will get a 
fair amount of attention and be examined closely.
  The next article I am going to read is in the Sunday Review, December 
24,

[[Page S2277]]

2016, entitled ``The Stolen Supreme Court Seat.''

       Soon after his inauguration next month, President-elect 
     Donald Trump will nominate someone to the Supreme Court, 
     which has been hamstrung by a vacancy since the death of 
     Justice Antonin Scalia in February. There will be public 
     debates about the nominee's credentials, past record, 
     judicial philosophy and temperament. There will be Senate 
     hearings and a vote.
       No matter how it plays out, Americans must remember one 
     thing above all: The person who gets confirmed will sit in a 
     stolen seat.
       It was stolen from Barack Obama, a twice-elected President 
     who fulfilled his constitutional duty more than nine months 
     ago by nominating Merrick Garland, a highly qualified and 
     widely respected federal appellate judge.
       It was stolen by top Senate Republicans, who broke with 
     longstanding tradition and refused to consider any nominee 
     Mr. Obama might send them because they wanted to preserve the 
     court's conservative majority. The main perpetrators of the 
     theft were Mitch McConnell, the majority leader, and Charles 
     Grassley, chairman of the Judiciary Committee. But virtually 
     all Republican Senators were accomplices; only two supported 
     holding hearings.
       The Republican Party line--that it was an election year, so 
     the American people should have a ``voice'' in the selection 
     of the next justice--was a patent lie. The people spoke when 
     they re-elected Mr. Obama in 2012, entrusting him to choose 
     new members for the court. And the Senate has had no problem 
     considering and usually confirming election-year nominees in 
     the past.
       Of course, Supreme Court appointments have always been 
     political, and the court's ideological center has shifted 
     back and forth over time. But the Senate has given nominees 
     full consideration and a vote even when the party in power 
     has opposed a president's choice. That is, until this year, 
     when Republicans claimed that though the Constitution calls 
     for the Senate's ``advice and consent,'' Senators aren't 
     obligated to do anything. This is a bad-faith reading of that 
     clause, even if there is no clear way to force a vote. It 
     certainly obliterates a well-established political norm that 
     makes a functioning judicial branch possible. As Paul Krugman 
     wrote in his column on Monday, institutions are not magically 
     self-sustaining, and they ``don't protect against tyranny 
     when powerful people start defying political norms.''
       This particular norm is of paramount importance because the 
     court's institutional legitimacy depends on its perceived 
     separation from the elected branches--a fragile concept in 
     the best of times. By tying the latest appointment directly 
     to the outcome of the election, Mr. McConnell and allies took 
     a torch to that idea--an outrageous gambit that, to nearly 
     everyone's shock, has paid off. But while Republicans may be 
     celebrating now, the damage they have inflicted on the 
     confirmation process, and on the court as an institution, may 
     be irreversible.
       The slope is both slippery and steep. If Republicans can 
     justify an election-year blockade, what's to stop Democrats 
     in the future from doing the same? For that matter, why 
     should the party controlling the Senate ever allow a 
     President of the opposing party to choose a justice? Indeed, 
     in the weeks before the election, Senate Republicans were 
     threatening, with the encouragement of leading conservative 
     thinkers, never to confirm anyone to fill the vacancy if 
     Hillary Clinton won.
       Can anything be done to repair the harm? One step--as 
     obvious as it is unlikely--would be for Mr. Trump to 
     renominate Mr. Garland. Conservatives will scoff, but they 
     know he is as qualified for the job as anyone in the country. 
     When Mr. Garland was floated as a possible choice for the 
     Supreme Court in 2010, Orrin Hatch, the senior Republican 
     Senator from Utah, called him a ``consensus nominee'' and 
     said there was ``no question'' that he would be confirmed 
     with bipartisan support. That's partly why Mr. Obama 
     nominated him this time, and also why Mr. McConnell denied 
     him a hearing--he knew he couldn't prevent a Senate vote once 
     Americans saw an eminently qualified and reasonable jurist 
     testify on live TV.
       At the very least, Mr. Trump could follow President Obama's 
     example and pick a centrist--someone who commands wide 
     respect and operates within the bounds of mainstream legal 
     thought. That would be an appropriate gesture from a man who 
     lost the popular vote by more than 2.8 million votes and will 
     enter office with the lowest approval ratings in recent 
     history.
       The shameful, infuriating actions of the Senate Republicans 
     won't be ignored in the history books. In a desperate effort 
     to keep a conservative majority in the court, they rejected 
     their own professed values of preserving American 
     institutions. There's little hope they will come to their 
     senses now, but they and Mr. Trump have the power and the 
     obligation to fix the mess they have created.

  That is the article ``The Stolen Supreme Court Seat,'' an editorial 
from the Sunday Review of the New York Times.
  I do hope that there is a path in which this damage can be avoided 
because it is enormously significant to confirm a Justice when the seat 
has been stolen. It is enormously damaging to confirm a Justice when 
the President's team is under investigation for possible collusion with 
the Russians. It is enormously a big deal to confirm someone way out of 
the mainstream of judicial thought in America.
  So should this progress, should we find that there are 41 individuals 
who will stand up for our institutions and block this nomination under 
the filibuster tradition, the 60-vote tradition--60 votes required to 
proceed--we will have the question of whether we are going to change 
the rule or change the nominee. And always in the past, when the Senate 
rejected in any fashion, including closing debate on a motion to 
proceed, a nominee by tabling them--rejected a nominee by voting them 
down--the answer was to change the nominee, to protect the integrity of 
the Court.
  I think the advice in the December 24 editorial, ``Stolen Supreme 
Court Seat,'' which calls on the President to nominate a centrist, is 
terrific advice because it may give a chance for healing to take place. 
But there will be no healing if the seat is filled by Neil Gorsuch--a 
seat that belonged to President Obama under the Constitution of the 
United States of America, a seat that was stolen for the first time in 
U.S. history. That dynamic will haunt us for a very, very long time.
  This editorial is from January 31 from Time Magazine, entitled, 
``Sorry, Neil Gorsuch, the Supreme Court Vacancy was Already Filled,'' 
and written by Geoffrey Stone:

       If Antonin Scalia died today, and Donald Trump thereafter 
     nominated Judge Neil Gorsuch as his successor, I might 
     support Judge Gorsuch's confirmation. Although Judge Gorsuch 
     has not yet established himself as a jurist of any 
     distinction, he is generally regarded as a capable judge 
     with good character. Moreover, although he is a very 
     conservative jurist, he will be replacing a justice with a 
     similar ideological disposition. In such circumstances, 
     just as I supported the confirmation of Judge John Roberts 
     to succeed Chief Justice William Rehnquist, so too would I 
     be inclined to support the nomination of Neil Gorsuch to 
     succeed Antonin Scalia, even though I strongly disagree 
     with Gorsuch's very conservative ideology.
       But Antonin Scalia did not die today. He died almost a year 
     ago, and President Barack Obama nominated Judge Merrick 
     Garland to succeed him. Chief Judge Garland is a jurist of 
     impeccable credentials and personal character who is widely 
     celebrated for his moderate approach to the law. President 
     Obama nominated Garland not only because of his distinguished 
     reputation as a jurist, but also because as a relatively 
     moderate judge, he should have been more than acceptable even 
     to the most conservative Senate Republicans. In typical Obama 
     fashion, Garland's nomination was an effort to compromise in 
     order to win the support of Senate Republicans.
       Chief Judge Garland should have been confirmed easily. 
     Indeed, every Supreme Court nominee in living memory with 
     anything approaching Chief Judge Garland's impeccable 
     credentials and record of moderation has been easily 
     confirmed by the Senate, without regard to whether the Senate 
     was controlled by the President's party or by the opposing 
     party. This was true, for example, of such Republican 
     nominees to the Court as Warren Burger, Harry Blackmun, Lewis 
     Powell, William Rehnquist, John Paul Stevens, Sandra Day 
     O'Connor, Anthony Kennedy, and David Souter. Even the 
     extremely conservative Antonin Scalia was confirmed by a vote 
     of 98-0.
       But not Merrick Garland. In a completely unprecedented 
     abuse of power, Senate Republicans, under the ``leadership'' 
     of Senate Majority Leader Mitch McConnell, refused to 
     confirm, or even to consider, Judge Garland's nomination. 
     This unconscionable maneuver was nothing less than a 
     dishonorable and dishonest effort to steal this seat on the 
     Supreme Court for the right wing.
       Senator McConnell had the audacity to maintain that the 
     ``people'' should decide who should fill this particular 
     vacancy. By employing his duplicitous strategy, he managed to 
     shift this appointment from a President who had won the 
     popular vote by a margin of five million votes in 2012 to one 
     who lost the popular vote by a margin of three million votes 
     in 2016. This crass and unprincipled manipulation of our 
     democracy should not be allowed to succeed.
       Anyone who cares about the proper and legitimate 
     functioning of our American democracy must oppose Judge 
     Gorsuch's nomination, not because he is necessarily 
     unqualified, but because of the undermining of our American 
     democracy by Senate Republicans. Anyone who cares about the 
     rule of law must oppose this nomination. If we fail to take 
     this stand, the Senate Republicans will have succeeded in 
     placing a justice onto our highest Court who has no business 
     being there. They will have undermined the credibility of the 
     Supreme Court as an institution, an institution that is 
     critical to the functioning of our Constitution.
       Judge Gorsuch's nomination should be withdrawn, and the 
     President should nominate in his place a genuinely moderate 
     justice who is acceptable to Democrats and Republicans alike. 
     Only then can we move on

[[Page S2278]]

     with a sense of institutional integrity. Short of that, every 
     decision of the Court decided by a margin of five-to-four 
     with Neil Gorsuch in the majority will justifiably be 
     castigated as fundamentally illegitimate.

  That was in Time Magazine, by Geoffrey Stone, and op-ed opinion 
editorial entitled, ``Sorry, Neil Gorsuch, the Supreme Court Vacancy 
Was Already Filled.''
  This commentary is from Rolling Stone, entitled, ``Grand Theft 
Judiciary: How Republicans Stole the Supreme Court.'' It is subtitled: 
``Pray that Ruth Bader Ginsburg and her fellow liberal justices stay 
healthy and don't retire,'' by David Cohen, written in November of 
2016.

       The Republicans just pulled off one of the greatest heists 
     in American political history--they stole a Supreme Court 
     justice.
       Since 1789, there have been 112 justices on the Supreme 
     Court. Having the opportunity to appoint a new justice is one 
     of the prize opportunities for a president. With the right 
     young justice, a president can influence American law and 
     society for decades to come. For instance, Anthony Kennedy, 
     the current ``swing justice'' on the Court, was appointed by 
     President Reagan. Since he sits in the ideological middle of 
     this current court, Kennedy's views on the law often 
     determine how American justice work. And for that, we owe 
     thanks to a president who was last elected 32 years ago and 
     has been dead since 2004. That's the power of a Supreme Court 
     appointment.
       These opportunities are often completely unpredictable. 
     Justices are appointed for life, so they leave their position 
     only when they retire or die. Sure, a president can make an 
     educated guess about particular justices' life expectancies 
     or end-of-career plans, but knowing exactly when a justice is 
     going to leave the Court is out of the president's control.
       When Justice Scalia died suddenly in February, President 
     Obama was gifted the opportunity to fill his third seat on 
     the Court. He had previously replaced David Souter with Sonia 
     Sotomayor and John Paul Stevens with Elena Kagan. Neither of 
     those appointments shifted the Court's ideological balance, 
     as in each case Obama replaced, broadly speaking, a judicial 
     liberal with another liberal. Replacing Scalia, on the other 
     hand, was going to be a monumental shift in the Court. Scalia 
     was one of the most conservative justices in the history of 
     the Supreme Court. An Obama replacement would give the Court 
     its fifth liberal and shift it to the left in historically 
     significant ways. President Obama and Democrats were 
     salivating at the opportunity.
       The Republicans, though, were having none of it. Through 
     unflinching and unified obstructionism combined with 
     Tuesday's election of Donald Trump, they succeeded in 
     stealing a seat right out from under President Obama's nose. 
     It was a staggering case of grand theft judiciary.
       This all started almost immediately with Scalia's death, 
     with the Republicans claiming a new theory that a president 
     should not be able to appoint a justice during an election 
     year; rather, the people should be allowed to speak and 
     decide on the direction of the Court, they said. Never mind 
     that justices have been confirmed regularly throughout 
     history in election years, and that presidents have 
     constitutional authority to appoint judges to the federal 
     judiciary in all four years of their terms, not just their 
     first three, and that the Court would have to (and continues 
     to) function with only eight justices. The Republicans 
     understood the stakes of shifting the Court's ideology, so 
     they put up a united obstructionist front and never wavered 
     in saying they would not confirm an Obama appointee this 
     year.
       President Obama, as he often does, thought he could break 
     through the Republican wall by trying to appease them. 
     Instead of nominating a young liberal firebrand or a judicial 
     first, he nominated a well-respected but moderate, not-young 
     white male: Merrick Garland. Obama thought Garland, who had 
     been praised throughout his career by politicians on both 
     sides of the aisle, would be unobjectionable and would break 
     the logjam.
       The president couldn't have been more wrong. Without any 
     interest group to cheerlead his cause, Garland was quickly 
     forgotten and faded into the distant background of American 
     politics. As a result, there was no movement whatsoever, and 
     Garland's nomination has lingered with no action longer than 
     for any nominee in history.
       During the campaign, Democrats occasionally brought up this 
     issue, trying to paint Republican senators as obstructionist 
     and against good government. But the issue never stuck in 
     Senate races, and Hillary Clinton never really led the charge 
     over the Supreme Court either. As a result, according to an 
     ABC exit poll, of the 21 percent of Americans who said the 
     Supreme Court was the most important factor in their vote, 57 
     percent of them voted for Trump and only 40 percent voted for 
     Clinton.
       Now that Trump is president-elect, he's going to have the 
     opportunity to fill Justice Scalia's seat; even though it 
     means the Supreme Court will remain short-handed for months 
     longer, there's no chance in hell Republicans will do 
     anything to move Garland's nomination between now and 
     inauguration day. They want their stolen prize, and they'll 
     wait for it.
       Trump has given a list of 21 possible justices he would 
     nominate, all of whom have varying pedigrees as 
     conservatives. If he follows through and nominates someone 
     from that list, the Democrats could respond with a similar 
     blockade. Though the Republicans still control the Senate, 
     and thus would be able to move the nominee through the 
     judiciary committee to a floor vote, Democrats could try to 
     filibuster. A filibuster requires 60 votes to break, so the 
     52 Republicans in the Senate would not be able to stop it.
       There are two problems with this plan, though. First, 
     Democrats have been less unified in the past when it comes to 
     opposition than the Republicans have been, and the Democrats 
     would need to make sure no more than seven Senators broke 
     ranks. With several Dems up for reelection in 2018 in very 
     conservative states, that's something that may be more 
     difficult than it should be.
       Second, the Republicans may opt to get rid of the 
     filibuster altogether. This option, commonly referred to as 
     the ``nuclear option,'' would eliminate the filibuster as a 
     tool for Supreme Court nominees. Because of Republican 
     opposition during the Obama years, the Democrats eliminated 
     the filibuster for lower court justices when they controlled 
     the Senate. However, they kept it for Supreme Court 
     nominations because they understood just how controversial 
     and serious such a move would be.

  The author continues:

       I have no expectation that the Republicans would do the 
     same. They have been laser focused on wrestling this 
     nomination away from President Obama and are not going to let 
     the Democrats ruin their fun. The Senate rules allow the 
     filibuster to be eliminated with a majority vote, and the 
     Republicans will probably do so very soon after Trump 
     nominates his justice and the Democrats announce their 
     filibuster.
       What will this mean for the Supreme Court? Filling this 
     seat will put a younger conservative in Justice Scalia's 
     seat. It will dash liberals' hope of a new progressive 
     Supreme Court and likely continue its recent history as one 
     of, if not the most, conservative Courts in American history.
       However, the Court will still have Justice Kennedy as the 
     swing justice.

  Obviously, this was written before the nomination of Neil Gorsuch. It 
notes that if Republicans go nuclear, there is almost nothing the 
Democrats can do to stop it. That is certainly true. We don't have a 
mechanism that can prevent this body from reinterpreting the 
application of its rules.
  It happens in a very simple fashion. A Member asks for a ruling of 
the Chair on whether the super majority provision to close debate 
applies to closing debate on Senate nominees. The Chair consults with 
the Parliamentarian and probably says: Yes, it does clearly apply. Then 
the majority leader challenges the ruling of the Chair. If 51 folks 
vote to overturn the ruling of the Chair, that is it. The precedent is 
then set. The supermajority does not apply to Supreme Court nominees, 
to closing debate on Supreme Court nominees. It is that simple. It is 
not a change in the rules. The Senate rules require a supermajority to 
change the rules. It has just not always been helpful. It has meant 
that the Senate has not adjusted to the changing culture of the Senate 
to keep it functional. A lot of the time, State legislatures are far 
more functional than the U.S. Senate because when they have problems 
develop as the culture changes or people develop new tactics for 
obstruction, they adjust the way they operate in order to make sure 
they can keep making decisions.
  It is not unusual in my home State in Oregon for us--that is, the 
body in the house or the senate in Oregon--to consider 8 or 10 bills in 
a day. With a bill raised, everybody who wants to speak to it for 5 
minutes or less gets to speak to it. Then there is a vote, it is 
decided, and we go on to another. There is more conversation sharing of 
viewpoints on the floor of the Oregon House in the course of a single 
day than there is a sharing of views and debate on the floor of the 
Senate in an entire year. We have, basically, completely lost anything 
resembling a conversation about any issue before the Nation here on the 
floor of the Senate. That is a tragic situation. It could be changed if 
we changed the way that we operate.
  (Mrs. ERNST assumed the Chair.)
  The L.A. Times editorial board wrote an essay titled: ``It's not Neil 
Gorsuch's fault, but we can't support his ascension to a stolen Supreme 
Court seat.''
  As we can see from this series of articles, no one will ever forget 
that, for the first time in U.S. history, the majority is stealing a 
seat from one President and delivering it to another in an audacious 
effort to pack the Court. No one should ever forget that, and we should 
come to our senses and end this

[[Page S2279]]

before the theft is completed by confirming the nominee to this seat.
  This article in the L.A. Times, by the editorial board, says:

       A decade ago, The Times urged the Senate to confirm John 
     Roberts to the U.S. Supreme Court even though he was a 
     conservative judge nominated by a conservative president and 
     was likely to pull the court to the right for decades to 
     come. We backed him, despite our disagreements with his 
     judicial philosophy, because we believe that presidents--
     Democrats and Republicans alike--are entitled to significant 
     deference when they nominate justices to the high court, so 
     long as the nominees are well qualified and scandal-free, 
     respect precedent and fall within the broad mainstream of 
     judicial thinking.
       Under normal circumstances, that same reasoning would lead 
     us to support the nomination of Judge Neil Gorsuch. Like 
     Roberts, he is conservative but competent, with more than a 
     decade of experience on the appellate bench and a ``well-
     qualified'' rating from the American Bar Assn.
       But these are not normal times.
       Not after the outrageous obstruction of Judge Merrick 
     Garland's nomination for 10 full months by Senate 
     Republicans. That debacle began in March 2016, when President 
     Obama nominated Garland, a moderate and well-respected 
     appeals court judge, to fill the seat on the court that had 
     become vacant with the death of Justice Antonin Scalia. 
     Instead of doing what the Constitution requires and offering 
     their advice and, if merited, their consent, Senate 
     Republicans refused even to engage in the process. They 
     denied Garland a confirmation hearing and in many cases 
     wouldn't even meet with him--on the hastily fabricated 
     pretext that a president in his final year of office 
     shouldn't be allowed to name a new justice because . . . 
     well, it was never really clear what the supposed principle 
     was behind this self-serving position.
       They stonewalled the nomination until Obama was safely out 
     of office and a Republican had won the election. And now, 
     with Gorsuch subbed in for Garland, their cynical and 
     dishonorable strategy is about to deliver its rewards.
       Some people think it's hyperbolic to suggest that a seat 
     was ``stolen.'' But how else to describe it? Republicans took 
     the opportunity to fill the vacancy away from Barack Obama 
     without justification and delivered it up instead to 
     Donald Trump. Gorsuch could now tilt the balance on the 
     increasingly polarized Supreme Court for the next 30 or 
     more years, influencing rulings on free speech, gay and 
     transgender rights, campaign finance, abortion and gun 
     laws, among other subjects. He may not be outside the 
     mainstream of judicial thinking, but he is a textualist, 
     an originalist and a likely ally of the court's 
     conservative justices.
       The Republicans' underhanded ploy to subvert the Garland 
     nomination has put the Democrats in an untenable position. 
     They can now do what would ordinarily be the right thing do--
     by going high after the Republicans went low. They could 
     grumble a little bit but then decline to filibuster, or they 
     could even vote in favor of Gorsuch--effectively capitulating 
     in the quixotic hope that an act of good faith would 
     encourage the Republicans to behave more honorably in the 
     future.
       Alternately, they can go down kicking and screaming. We say 
     ``go down'' because no matter how hard they kick or how loud 
     they scream, they seem unlikely to win this battle. The 
     reality is that without filibustering, they don't have the 
     votes to defeat Gorsuch. And if they do mount a filibuster, 
     Senate Republicans can vote to do away with the filibuster 
     for Supreme Court nominees entirely. Under either scenario, 
     Gorsuch gets his job.
       To be clear, Democrats and Republicans share the blame for 
     the long roll down the slippery slope of polarization and 
     dysfunction of the judicial selection process. (Some 
     Democrats have even suggested in the past that presidents 
     shouldn't fill Supreme Court seats in election years.) As 
     that selection process has become increasingly politicized, 
     the court itself has become more ideologically driven as 
     well. Although there are differences between Roberts and 
     Justice Samuel Alito, for example, on some important 1st 
     Amendment issues, it's also true that in recent years, 
     justices appointed by Democratic presidents have tended to 
     vote for ``liberal'' outcomes and justices appointed by 
     Republicans for ``conservative'' outcomes. That polarization 
     is a bad trend.
       The judicial system works best when justices are neither 
     rigidly ideological nor biased along partisan lines. To get 
     there, we need a less highly politicalized selection process, 
     along with a measure of cooperation, compromise and civility 
     in Congress.
       For the moment, though, it is imperative to remind the 
     world of what the GOP did. By all means, let's hear a cri de 
     coeur from Democrats, even if it is in vain. The Republican 
     misuse of power took partisan obstructionism to an 
     extraordinary new level and must not be ignored now as if it 
     never happened. President Obama's nominee was robbed of his 
     right to a hearing, and the Senate Democrats are under no 
     obligation to be complicit in the theft.

  I do believe it is our responsibility to cry out from our hearts that 
this is wrong. Stealing a Supreme Court seat is wrong. Having this 
deliberation while the President is under a cloud for his team's 
potential collaboration with Russians is wrong. And while this article 
described Gorsuch as a bit more mainstream, as people have become 
familiar with his opinions--opinions that were widely criticized by 
other Republican jurists, and, in one case, overturned by the Supreme 
Court on an 8-to-0 vote--they have come to the recognition that he is 
way far out on the fringe, not in judicial mainstream.
  So how do we fix this? We fix it by each Senator asking what they 
would do if the tables were turned and the Democrats had stolen a seat. 
The Republicans would cry out: It was wrong. They would ask Democrats 
to join them in rejecting that theft. I invite my colleagues to go 
through that exercise. How would you respond if a seat had been stolen 
from a Republican President and delivered to a Democratic President? 
How would you respond if that Democratic President was being 
investigated for potential collaboration with the Russians to sway the 
outcome of our elections? How would you respond if the nominee was not 
from the mainstream, but from the far edge? I am quite confident about 
how each person would respond because that situation would be 
outrageous.
  We must be able to step into each other's shoes and say: If we are 
going to preserve this institution, we have to be willing to recognize 
when it has gone off course, and it has gone dramatically off course 
this last year.
  This article is by Dawn Johnsen and is titled: ``Trump's Nominee 
Shouldn't Get a Hearing Until Merrick Garland is Seated.''
  There really is--as several of these articles have mentioned--a path 
to righting this wrong, and that is to go back in time, to recognize 
that Merrick Garland was not considered by the Senate, and that we need 
to tell the President that we are not entertaining any person other 
than Merrick Garland to be in the seat. We will debate whether he 
should be in the seat. We will vote on whether he should be in the 
seat, and thereby rectify this theft--this stolen seat theft that will 
otherwise haunt this body and haunt the Supreme Court for the rest of 
our lives and maybe well through our children's lives. But we haven't 
committed the crime yet. This theft has not been completed. So we 
should all be pondering how to prevent that from happening.
  The article starts out:

       As President Donald Trump's nominee for the vacant Supreme 
     Court seat receives public scrutiny in the coming days, it's 
     incumbent for us to remember one thing: This seat was not 
     Trump's to fill.
       In fact, the U.S. Senate should refuse to confirm anyone 
     President Trump nominates to the Supreme Court--until Trump 
     renominates and the Senate confirms Judge Merrick Garland.

  It then refers to a Senate filibuster as the only correct approach.

       To recap: The Senate failed to fulfill its constitutional 
     responsibility with this unprecedented refusal even to 
     consider President Obama's nomination of Garland. Obama made 
     the nomination with about a year left in his presidency, but 
     from day one the Republican Senate leadership insisted it 
     would permanently block it.
       No one ever questioned Garland's qualifications--an 
     impossibility for this brilliant, dedicated public servant. 
     The obstruction constituted an insulting challenge to Obama's 
     legitimacy, accompanied by calls for the people to decide via 
     the election of the next President. The Republicans 
     effectively have attempted to steal this Supreme Court seat. 
     If this effort succeeds--as has appeared likely ever since 
     Trump's surprise election--it will create a fundamental 
     imbalance in the third branch of our federal government, the 
     independence and integrity of which is vital to our 
     constitutional system. An essential role of the federal 
     judiciary is to check unlawful actions of the political 
     branches--Congress and the president. When political actors 
     conspire to distort the makeup of the court, as they did in 
     denying President Obama his basic constitutional role, we the 
     people must demand that the balance be restored.
       The confirmation of Garland to the court would provide 
     perfect justice. This may not be quite so far-fetched as it 
     might seem initially. President Trump is likely to have the 
     opportunity to make more than one Supreme Court appointment. 
     As Trump is not nominating Garland this time, the Senate 
     should keep the current vacancy open until a second seat 
     becomes vacant. It should then confirm Garland, followed by 
     the consideration of the Trump choice. The only appropriate 
     alternative--given the constitutional stakes--would maintain 
     an eight-person or fewer court for four years.
       I don't suggest this lightly: I experienced firsthand--

  Again, I am reading this article. So the ``I'' is the author. The 
author is Dawn Johnsen.


[[Page S2280]]


  

       I don't suggest this lightly: I experienced firsthand the 
     personal toll of the Senate refusing to vote on my nomination 
     to head the Department of Justice's Office of Legal Counsel 
     in 2009 and 2010. One Republican senator sought to reassure 
     me it wasn't personal; it was politics, how the game was 
     played: ``You do it to us; we do it to you.'' My husband, two 
     sons, and I spent more than a year in confirmation limbo, in 
     a rented house far from home, awaiting the Senate vote 
     repeatedly predicted for the next week, next month--but that 
     never came.
       Of course, the politicization of a presidential appointment 
     is wrong. Each of the president's nominations ordinarily 
     should be assessed on its individual merits. Notwithstanding 
     Trump's awful first 10 days in office, the Senate should 
     continue to offer the president's executive branch nominees 
     this same fair standard of treatment. In particular, Trump's 
     nominee to head the Office of Legal Counsel--the office to 
     which President Obama nominated me and the same office I 
     headed for part of the Clinton administration--should be 
     confirmed expeditiously, as long as the nominee is personally 
     qualified. This president is in desperate need of good legal 
     advice.
       But this Supreme Court vacancy is different. It exists only 
     as the result of the wrongful denial of the legitimacy of 
     Obama's presidency. It is the breakdown of the very function 
     of our democracy and a slap in the face to constitutional 
     norms. It is an attempted theft that, if permitted, would 
     bring longstanding consequences. Its end was to prevent the 
     court from having a majority of justices appointed by 
     Democratic presidents for the first time since 1969. That's 
     almost half a century with a court majority appointed by 
     Republican presidents, a striking imbalance that does not 
     reflect the presidential vote: Since 1961, Democratic and 
     Republican presidents have served equal numbers of years.
       The flimsy and transparently specious argument Republicans 
     offered was: ``Let the people decide.'' Of course, the people 
     decided when they elected President Obama to a second four-
     year term. And 3 million more Americans decided they 
     preferred Obama have a Democratic successor rather than Trump 
     make this appointment. Those who value an independent 
     judiciary, and a Senate committed to democracy, can fix this 
     constitutional problem by insisting on Merrick Garland's 
     appointment to the seat he already should be occupying. The 
     pick after that can belong to President Trump.

  I think that accurately sums it up. There is an idea embedded in 
there of saying: How about this? How about this, fellow Senators--that 
we suspend the consideration of Neil Gorsuch at this point in time 
until there is another Supreme Court seat that opens up, and at that 
time, Merrick Garland gets at least considered for the first seat, the 
seat that he was rightly nominated for. President Trump has his person 
rightly considered for the second seat. That would be a way to heal the 
mess that has been created through the theft of the Supreme Court seat: 
We have stolen it, but we will not act on it, and so eventually we will 
enable the same nominee to be considered for that seat. That is an 
interesting idea, a face-saving idea, an idea that gives President 
Trump the opportunity to make the nomination that corresponds to a seat 
that comes open during his administration, and President Obama's 
nominee to be considered for the seat that came open under President 
Obama's control of the Presidency--his time in office.

  The LA Times January 31 editorial said--the title kind of sums it up: 
``When the GOP stole Merrick Garland's Supreme Court seat, they set the 
stage for a miserable battle.'' That is pretty much the situation we 
are in. The previous article I read laid out an idea of a way around it 
at this point, in which we leave the Scalia seat empty until there is a 
second seat, and then Merrick Garland gets considered for the first 
seat, and if the President wants his nominee to be considered for the 
second seat, he would have to make that nomination, and then the 
President gets his nominee considered for the seat that came up under 
his administration, so suddenly there is no longer a stolen seat, and 
we are on the path to a future in which the Supreme Court's integrity 
is not completely decimated.
  This article starts out as follows:

       The outrageous obstruction of Merrick Garland's nomination 
     to the Supreme Court--the 10-month-long stonewall by Senate 
     Republicans that not only stymied the high court's ability to 
     do its job but effectively stole the nomination of a new 
     justice from President Obama--is now delivering its rewards 
     to the cynical politicians who carried it out.
       Having denied Garland even a committee hearing from the 
     time of his nomination in March until Obama was safely out of 
     office, the GOP-controlled Senate is now smugly offering that 
     opening to President Trump to fill. The new president, who 
     has repeatedly promised to select a new justice in the mold 
     of the late conservative Justice Antonin Scalia, has said he 
     will announce his nominee Tuesday evening.

  This was written just before the President announced Neil Gorsuch as 
his nominee. The article continues:

       It's hard to express how head-shakingly unfair this is. 
     Trump will now have an opportunity to affect the balance of 
     the increasingly polarized court for the next 30 or 40 
     years--influencing rulings on abortion, the rights of gay and 
     transgender people, free speech, corporate and union spending 
     on elections, labor issues, the separation of church and 
     state, the ubiquity of guns, criminal justice reform and 
     endless other hot button subjects.
       But Trump never should have been handed this opportunity. 
     The seat was Obama's to fill subject to Senate ``advice and 
     consent,'' and he fulfilled his constitutional responsibility 
     in good faith, only to be kneecapped by a body that would 
     neither advise nor consent but merely gummed up the machinery 
     in a transparent effort to preserve the court's conservative 
     majority. The GOP's feeble justification for its behavior--
     that an appointment made by a duly elected president was 
     somehow illegitimate because he had only 10 months remaining 
     in office--was believed by no one.
       The Senate's misbehavior affected more than just the court. 
     It also constituted a new low in the tit-for-tat cycle of 
     dysfunction in Congress, in which each side obstructs its 
     opponents wherever possible even if that produces a stalemate 
     that brings the operation of government to a halt. Working 
     cooperatively across the aisle to solve the nation's problems 
     has gone out of fashion.
       The Democrats have been put in a terrible bind. Do they 
     take the Republican bait, declare the seat stolen and launch 
     a filibuster? Or do they roll over, brand themselves patsies 
     and allow Trump to appoint a Scalia clone? What message do 
     the Democrats send if they allow themselves to accept this 
     theft supinely without exacting any punishment? How should 
     they fight if the nominee is truly outside the mainstream? 
     And what if he or she is a conservative who is well-respected 
     and competent--what strategy makes sense then? It's an awful 
     predicament and it's hard to see how it ends well.
       Frankly, the Democrats are not in a terribly strong 
     position. They don't have a majority in the Senate, and 
     though they can filibuster for a while, most Senate 
     Republicans would sooner do away with the filibuster for 
     Supreme Court justices than allow the seat to sit empty 
     indefinitely. That's the so-called nuclear option.
       At the end the day--

  Says this article--

       Senate Majority Leader Mitch McConnell will probably win 
     this round, thus ensuring the long roll down the slippery 
     slope of polarization and dysfunction continues at an ever-
     accelerating speed. He should be, but presumably is not, 
     ashamed of that contribution to history. His obstructionism 
     exacerbated the weakening of governmental institutions and 
     continued the erosion of bipartisan cooperation and civility. 
     Yet if democracy is to work and the nation is to prosper, the 
     political system must allow for compromise and rationality 
     even among determined opponents.
       For now, another Justice Scalia or someone even more 
     extreme will probably be enstooled, potentially endangering 
     the rights of women and non-whites, threatening backward 
     movement on same-sex marriage and abortion, offering more 
     protection for powerful businesses and less for the 
     environment. Even in these difficult days, this disgraceful 
     move by Senate Republicans to manipulate a U.S. Supreme Court 
     seat for partisan purposes stands out as sad and egregious.

  Well, that was the LA Times article from January 31: ``When the GOP 
stole Merrick Garland's Supreme Court seat, they set the stage for a 
miserable battle.''
  In the course of conversing about the dilemma we face, I have noted 
that there are three big problems. The first is that the seat has been 
stolen from one President and delivered to another in an effort to pack 
the court.
  The second is that the nominee from President Trump is way outside 
the judicial mainstream. I have gone through many of the cases.
  The third is that there is a big cloud hanging over this 
administration. The Trump administration's connections to Russia during 
the campaign and throughout the transition are numerous, and we keep 
learning about pieces of the puzzle every day.
  Contact between the campaign and Russians or dialogue in itself is 
not necessarily wrong. But it is wrong if that dialogue was about how 
to coordinate, to basically tilt the playing field in favor of Donald 
Trump and against Hillary Clinton.
  The Russian activity was designed to change the outcome of the 
election. So, that in itself is a problem we have to pay a lot of 
attention to. We have to understand every piece of how the Russians 
operated. We have to convert

[[Page S2281]]

that knowledge into a strategy that prevents it from happening again.
  We certainly have to work with our allies to make sure that we help 
all of the democratic Republics of the world resist such meddling by 
the Russians. So far, we have a pattern of a lot of contacts. That 
pattern of Trump associates misleading the public about meetings and 
relationships with Russian officials does raise red flags. If meetings 
were innocent, why not be forthcoming? That is why we have to have a 
strong set of investigations to get to the bottom of this.
  We have to understand and recognize that what Russia did in their 
strategy was equivalent to an act of war on the United States. They 
were attacking our core institution, the bedrock of our democratic 
Republic, our election system. That is unacceptable.
  If anybody conspired with the Russians, that is treasonous conduct, 
and we have to get to the bottom of it. We certainly should get to the 
bottom of it before this Supreme Court seat conversation continues. The 
subsequent handling of the investigation by the House Intelligence 
Committee and the actions taken by the chair of that committee, 
Representative Nunes, underscore how serious the situation is. We 
definitely have to get to the bottom of what happened.
  That fact only emphasizes how seriously the Senate needs to consider 
slowing down, setting aside, pressing the pause button on the debate 
regarding the nomination of Judge Neil Gorsuch. Until the FBI and 
Congress complete the investigation of these contacts, the ongoing 
coverup confirming President Trump's lifetime appointment to the Court 
is premature.
  On top of possible collusion, it is also worth remembering why it is 
so troubling that President Trump has gushed about Putin's leadership 
while turning some of our longest and most strategic relationships on 
their heads. Putin operates a repressive regime, one that cracks down 
on freedom of expression and whose opposition leaders frequently perish 
in mysterious and suspicious ways. Someone carrying an item up to their 
apartment magically falls and dies or is shot down near the Kremlin or 
a whole host of different ways.

  The actions of Putin are not the actions of a friend of America. The 
actions of Putin are not actions that reflect the values shared by the 
American people. They are not values honored in our tradition. They are 
not values embedded in our Constitution.
  The Putin strongman model is very contrary to our system of 
government. There are no checks and balances. Those who rise up in the 
streets are likely to be cut down in the streets. Those who cry out for 
justice are likely to be silenced. Those who march to improve things 
may well find themselves behind bars. That is Putin. That is Russia.
  We should not have a significant improvement in our relationship with 
Russia unless there is a vast improvement in the fundamental values of 
a free and fair society within Russia.
  There is an enormous amount of evidence that the Trump campaign was 
familiar with and in conversation with Russia. If we pursue the 
investigations aggressively, we will find whether there was collusion.
  Paul Manafort, a Republican strategist and longtime Washington 
operator, joined Trump's campaign team last spring. He was elevated to 
be campaign manager after Corey Lewandowski was fired in June. But with 
just 3 months to go until the Presidential election, Manafort resigned 
amid questions over his campaign role and his extensive history of 
lobbying overseas, particularly in Ukraine, where he represented a pro-
Russian interest.
  Manafort also worked as an adviser on the Ukrainian Presidential 
campaign of Viktor Yanukovych and his Party of Regions during the same 
time span--from December 2004 until February 2010, the Ukrainian 
Presidential election--even as the U.S. Government opposed Yanukovych 
because of his ties to Russian leader Vladimir Putin.
  Manafort was hired to advise Yanukovych months after massive street 
demonstrations, known as the Orange Revolution, overturned Yanukovych's 
victory in the 2004 Presidential race. According to a 2008 U.S. Justice 
Department annual report, Manafort's company received about $64,000 
from Yanukovych's Party of Regions over a 6-month period for consulting 
services. That was in 2008.
  In 2010, under Manafort's tutelage, the opposition put the Orange 
Revolution on trial, campaigning against its leader's management of a 
weak economy.
  Returns from the Presidential election gave Yanukovych a narrow win 
over Prime Minister Yulia Tymoshenko, the leader of the 2004 
demonstrations. Yanukovych owed his comeback in the Presidential 
campaign to a drastic makeover of his political persona, and this 
makeover is credited to Paul Manafort.
  From 2007 to 2008, Manafort was involved in investment projects with 
Russian oligarch Oleg Deripaska and Ukrainian oligarch Dmitry Firtash. 
The Associated Press reported that Manafort negotiated a $10 million 
annual contract with Deripaska to promote Russian interests in 
politics, business, and media coverage in Europe and the United States. 
We are talking about 2005.
  In 1980, Manafort, along with Roger Stone, were founding partners of 
the Washington, DC-based lobbying firm Black, Manafort, Stone and 
Kelly.
  Roger Stone--what do we know about him? He is a former Trump adviser, 
a self-described master of political dark arts, and has been labeled as 
the dirty trickster of delegate fights. He has worked with the 
campaigns of Richard Nixon and George H.W. Bush and Ronald Reagan.
  Stone repeatedly claimed throughout the final months of the 2016 
campaign that he had back-channel communications with WikiLeaks founder 
Julian Assange, and he knew of the forthcoming document dumps, which 
disseminated materials that were hacked by Russia from Democratic 
computers.
  He admitted in March 2017 that during August of 2016, he had been in 
contact with Guccifer 2.0, who was believed to be tied to Russian 
intelligence and was claimed to be behind the hack of the DNC.
  August 10, Stone tells a local Republican Party group in Florida: I 
have actually communicated with Julian Assange.
  August 12, Stone says on a podcast that he believes Assange has 
emails deleted by Clinton aides Huma Abedin and Cheryl Mills. He adds 
that he knows he has them, and they should be expected to drop in the 
next 3 months. ``In fact, I know [Assange] has them,'' Stone said, 
``and I believe he will expose the American people to this information 
within the next 90 days.''
  August 14, Stone engages in direct messages with the DNC hacker, 
Guccifer 2.0, according to direct messages reported by the Washington 
Times and the Smoking Gun. Stone tells the hacker he was delighted that 
Twitter had reinstated his account.
  A day later, Stone says that he has communicated with Assange, and 
forthcoming material will be related to the Clinton Foundation.
  A day after that, Stone tells radio host Alex Jones that he has back-
channel communication with Assange, who has political dynamite on the 
Clintons.
  August 18, Stone says in an interview on C-SPAN that he has been in 
touch with Julian Assange through an intermediary, someone who is a 
mutual friend. WikiLeaks would later tweet in response: ``We are happy 
to hear true information from everyone. But so far, we have not heard 
from Mr. Stone.''
  On August 21, Stone tweets that it will soon be Podesta's time in the 
barrel. Stone later says his tweet was about Podesta's business 
dealings. On the same day, Stone denies that Guccifer 2.0 is connected 
to the Russians.
  August 26, in an interview with Breitbart radio, Stone says: I'm 
almost confident Mr. Assange has virtually every one of the emails that 
the Clinton henchwomen, Huma Abedin and Cheryl Mills, thought that they 
had deleted, and I expect that he's going to drop them at strategic 
times in the runup to this race.

  On the 29th, Stone says on local Florida radio of Assange and the 
Clinton Foundation: ``Perhaps he has the smoking gun that will make 
this handcuff time.''
  September 16, Stone says on Boston Herald radio that he expects 
Assange and WikiLeaks to ``drop a payload of new documents on a weekly 
basis fairly soon. And that of course will answer the question of 
exactly what was

[[Page S2282]]

erased on that email server.'' Assange has been in touch with them 
through an email intermediary.
  October 1, Stone tweets: Hillary Clinton is done.
  You go back to the comments he was making, where he seemed to know 
what was going to happen before it happened, and we saw it happen. It 
clearly suggests, from this public record, the appearance there--it is 
hard to imagine with these conversations that there wasn't some form of 
collaboration about what was going on. That is why we need to get to 
the bottom of it. Was there collaboration? Those kinds of comments are 
deeply, deeply disturbing.
  We have Carter Page, who worked for 7 years as an investment banker 
at Merrill Lynch. His biography said--took him to London, New York, and 
Moscow for 3 years in the mid-2000s before Trump last year listed him 
as a foreign policy adviser in response to a question from the 
Washington Post.
  Page has regularly espoused views at odds with much of the foreign 
policy community in Washington in particular, questioning the U.S. 
approach toward Russia and calling for warmer relations between the two 
countries. He has expressed views in support of Vladimir Putin and 
harshly criticized U.S. policy. He is frequently quoted on Russian 
television as a famous American economist.
  In September of 2016, U.S. intelligence officials investigated 
alleged contacts between Page and Russian officials subject to U.S. 
sanctions. Page rejected the accusations and said he would take a leave 
of absence from the Trump campaign.
  In January of 2017, Page's name appeared repeatedly in the leaked 
Donald Trump-Russia dossier containing contract intelligence from the 
former British intelligence operative Christopher Steele in the employ 
of a private American firm.
  In January of 2017, Page is under investigation by the FBI, CIA, NSA, 
and ODNI. Page contends that he has done nothing wrong.
  In February 2017, Page said that he had not met with Russian 
officials in 2016, but 2 days later, he appeared to contradict himself 
and stated he did not deny news reports that he met with Russian 
Ambassador Sergey Kislyak during the Republican National Convention in 
Cleveland, OH.
  This month, Page was called on by the Senate Intelligence Committee 
investigating the links between the Trump campaign and Russian 
dealings.
  Michael Flynn attended a gala in Moscow in honor of Russia Today, now 
known as RT, a Russian Government-owned English language media outlet 
on which he made semiregular media appearances as an analyst after he 
retired from U.S. Government service.
  Flynn was paid $45,000 by Russia Today for the 2015 talk and provided 
an all-expense-paid 2-day trip paid by Russia. National Security 
Adviser Michael T. Flynn was forced to resign once it was revealed that 
on December 29, 2016, the day Obama announced sanctions against Russia, 
Flynn discussed the sanctions with the Russian Ambassador to the United 
States. Flynn had earlier acknowledged speaking to the Ambassador but 
not discussing the sanctions.
  The New York Times, on March 2, reported that Kislyak had met with 
Michael Flynn and Jared Kushner in December 2016 to establish a line of 
communication with the Trump administration.
  This is just a series of contacts. What we need to know is: Did these 
contacts involve communications for coordinating campaign tactics? Did 
Russia release information on Hillary at a time suggested by the Trump 
campaign? Was there any form of coordination? That is why we need this 
robust investigation now.
  We have the investigation in the House Intelligence Committee. That 
investigation has sputtered and has all the appearance of going 
nowhere, and it has been compromised by the comments of the House 
chair.
  There is another investigation on the Senate side, with Senator Burr 
as the chair and Senator Warner as the ranking member, and they are 
working pretty well together. We hope that continues. I know that they 
believe that we have a responsibility to get to the bottom of this 
issue, and I know there are many Members on both sides of the aisle who 
put a high priority on getting to the bottom of this issue.
  I applaud the work the Senate committee is doing, but we all know 
that the Intelligence Committee is a hard place to get information out 
of. For example, when the torture report was completed, it was 
extraordinarily difficult to get that into the public's hands. This 
should not be the only strategy.
  Certainly, we have another strategy with the FBI, and we had the 
briefing on the Hill. The FBI Director, a week ago Monday, came to 
speak to the House, and he shared a fair amount in terms of confirming 
that the investigations are underway, and it is important that the FBI 
use its talents and assets and connections to find out what really went 
on in order to get to the bottom of this.
  I would like to also see us have a special prosecutor who pursues 
this, who puts together a team and specifically drills in to get to the 
bottom of this. I would like to see a bipartisan commission--a 
Watergate-style commission--so that some of this could be done in the 
public realm and not hidden behind the veil of classifications. Of 
course, I would like to see a robust investigation by the press--by the 
fourth estate. If all of those things happen or if some do not happen 
but the others are done well, we will get to the bottom of this--and 
the sooner the better.
  I am going to continue by sharing some comments that the Senate 
Democratic leader made in a floor speech on February 16. These are 
excerpts of Senator Schumer's floor speech:

       The recent reports about General Flynn detailing constant 
     high-level contact between members of the Trump 
     administration and the Russian Government raise serious 
     doubts about this administration's competence in the realm of 
     foreign policy and national security and even graver doubts 
     about the sanctity of our democratic process.
       We do not know all the facts, and in the coming days and 
     weeks, more information may well surface about these 
     disturbing revelations, but we already know that something is 
     rotten in the state of Denmark.
       All of us can agree that right now what are required are 
     the facts. We have to evaluate the scope of Russia's 
     interference in our election and assess if agents of their 
     government have penetrated to the highest levels of our 
     government. Throughout the process, we have to avoid jumping 
     to conclusions or engaging in wild speculation. We must seek 
     the truth, the whole truth, and nothing but the truth. Once 
     we have the facts at our disposal, Democrats and Republicans 
     alike can debate what to do next.
       Senate Democrats are faithfully committed to keeping this 
     issue above partisan politics. The gravity of this issue 
     demands nothing less . . . I am very hopeful the other side 
     wants to get at all the facts, just as our side wants to get 
     at all the facts.
       This is an issue on which patriotism must prevail over 
     politics because before we are Democrats or Republicans, we 
     are Americans, with respect for the rule of law.

  Those are excerpts of Senator Schumer's floor speech on February 16, 
and I certainly, passionately, agree with him.
  This investigation of what went on in the election is one in which 
patriotism must prevail over politics because, above all, we are 
Americans with respect for the rule of law.
  I will add that, as leaders in America, here in this Senate Chamber, 
we have a huge responsibility to get to the bottom of this, to urge 
forward the investigation by the Senate Intelligence Committee to make 
sure the results, as appropriately compiled and vetted to protect 
confidential sources, are shared with the American public so that the 
American public can know what transpired and so that we, then, act on 
that information. If that information shows that there have been 
treacherous acts of collaboration with the Russians to undermine the 
integrity of our elections, we must pursue it to the full extent of the 
law.
  This next excerpt is from Senator Schumer's speech, on March 6, which 
called for a special prosecutor:

       So my Republican colleagues should understand that what 
     they know in their hearts is the right thing to do. Do a 
     strong, impartial investigation and get to the bottom of 
     this. That is where the American people want them to go. The 
     American people disagree with President Trump and want a 
     thorough and impartial investigation--even 43 percent of the 
     Republicans. They are right.
       A special prosecutor is the best way to ensure that an 
     investigation proceeds impartially for several reasons.

  In a conversation with POLITICO, our Democratic leader said on March 
21:


[[Page S2283]]


  

       You can bet if the shoe were on the other foot and a 
     Democratic President was under investigation by the FBI the 
     Republicans would be howling at the Moon about filling a 
     Supreme Court seat in such circumstances.
       It is unseemly to be moving forward so fast on confirming a 
     Supreme Court Justice with a lifetime appointment while this 
     big, gray cloud of an FBI investigation hangs over the 
     Presidency.

  The Washington Post notes it is unseemly to confirm Gorsuch amidst an 
FBI probe of the Trump campaign.
  I would like to point out that it is the height of irony that 
Republicans held the Supreme Court seat open for nearly a calendar year 
while President Obama was in office but are now rushing to fill the 
seat for a President whose campaign is under investigation by the FBI. 
It is unseemly and wrong to be moving so fast on a lifetime appointment 
in such circumstances.
  On March 21, a report on the Hill by Jordain Carney said:

       Senate Minority Leader Charles Schumer is urging 
     Republicans to delay a vote on Neil Gorsuch, President 
     Trump's Supreme Court nominee, because of an ongoing 
     investigation into potential ties between Trump officials and 
     Russia.
       ``It is unseemly to be moving forward so fast on confirming 
     a Supreme Court Justice with a lifetime appointment while 
     this big, gray cloud of an FBI investigation hangs over the 
     Presidency,'' the Senate's top Democrat said, echoing 
     language used the day before by Republican House Intelligence 
     Committee Chairman Devin Nunes.
       Schumer's request, which is unlikely to gain traction with 
     Republicans, comes as Gorsuch is into his second day before 
     the Judiciary Committee . . . but the New York Democrat 
     argued that it was ``the height of irony'' that the 
     Republicans blocked then-President Obama from filling the 
     Supreme Court seat left vacant by Antonin Scalia's death . . 
     . but are now rushing to confirm Gorsuch.

  Just before I started speaking yesterday evening, the majority leader 
came to the floor, gave a short speech, and said he was filing a 
petition to close debate. That is the first time in U.S. history that a 
petition to close debate has been filed on the first day of a Senate 
debate. Generally, the Senate will, if people have more to say, go for 
many days--go for weeks--without somebody's filing a petition to close 
and shut off debate.
  Why are we rushing into the completion of this nomination in this 
extraordinarily inappropriate, condensed, accelerated fashion when 
there is so much to consider?
  This is not a nomination in normal times. This is a nomination for a 
seat that has been stolen from one President and delivered to another. 
It is the first time it has happened in U.S. history. This is a 
nomination during a moment in which the President making the nomination 
has a team that is under investigation for potentially conspiring with 
the Russians to change the outcome of the Presidential election. That 
is the big cloud that must be dispelled and resolved and should be 
resolved before this conversation on the floor continues.
  This is a nominee who comes from the far right of the spectrum, with 
case after case after case--the frozen trucker case, the autistic child 
case. There is case after case in which he finds a way to turn the law 
to do the opposite of what the law was written to do.
  As I have read through those cases over the course of the nearly, 
roughly more than 11 hours, you will see the pattern of decision after 
decision being made for the powerful and the privileged, of his writing 
a dissent from the majority that says this decision by a labor board 
was very reasonable and in compliance with the law because it exactly 
fits the law. Yet Neil Gorsuch wrote a dissent because he wanted to 
find a way to find for the powerful organization.
  Here we have these three big factors. This is a time when there 
should never be a petition to close debate because people have a lot to 
say, and there are 100 Members of this body. When they expend their 
energies and they are through with their conversations, then ask the 
question: Are people ready to close debate? At that moment: Are there 
60 votes for this nominee?
  This effort to ram this through not only does not fit the tradition 
of the Senate or fit the circumstances, but it raises a question: Is 
there an effort to put this through before information comes to the 
surface that might change the outcome?
  At 11 o'clock last night, we got this posting--or, I guess, it was 
posted at 11 p.m. and we got it at about midnight here on the floor--of 
the article by POLITICO. It laid out a side-by-side comparison of 
language that Gorsuch had used that was, essentially, lifted from other 
people's writings without attribution. Several experts have said that 
this meets the standards of plagiarism because the language was lifted 
without attribution, and that is what plagiarism is. Others said maybe 
not. Maybe it does not quite meet that standard.
  Is this one of the reasons that we are trying to shove this 
nomination through in such an extraordinary way when it is under such a 
cloud to begin with? Is there more information like this that needs to 
come out?
  This is a guarantee that Senators would vote against closing debate 
if there is the possibility that this is trying to be done fast--to 
have a vote--before significant information is put into the public 
realm.
  (Mr. GARDNER assumed the Chair.)
  The New York Times had an article on March 29, 2017: ``Senate 
Intelligence Committee Leaders Vow Thorough Russian Investigation'':

       Senators leading the investigation into Russia interference 
     in the November election pledged on Wednesday to conduct an 
     aggressive inquiry, including an examination of any ties to 
     President Trump, as they sought to distance themselves from 
     the flagging efforts in the House.
       In a conspicuous show of bipartisanship during a fractious 
     time at the Capitol, the top Republican and Democrat on the 
     Senate Intelligence Committee vowed to forge ahead by 
     interviewing key players connected to Mr. Trump and pressing 
     intelligence agencies to provide all relevant information.
       But their display of collegiality seemed intended primarily 
     as a contrast to the explosive and often bewildering 
     statements in recent days from the Republican chairman of the 
     House Intelligence Committee, Representative Devin Nunes of 
     California, whose perceived closeness with the Trump White 
     House has raised doubts about his ability to conduct an 
     impartial investigation.
       The chairman of the Senate Intelligence Committee, Richard 
     M. Burr, a Republican from North Carolina and a supporter of 
     Mr. Trump during the campaign, suggested on Wednesday that he 
     would not retreat from a process that could damage the 
     reputation of a Republican President. ``This investigation's 
     scope will go wherever the intelligence leads,'' Mr. Burr 
     said during a rare joint news conference.
       Asked later whether he had encountered any direct links 
     between Mr. Trump and Russia's interference, Mr. Burr was 
     stern. ``We know that our challenge,'' he said, ``is to 
     answer that question for the American people.''
       The Senate investigation amounts to a credibility test for 
     Republicans under the Trump administration--a chance to prove 
     their willingness to ask uncomfortable questions of a 
     Republican President, even if the answers might weaken his or 
     the party's standing.
       Democrats are skeptical. But they are also mindful that the 
     Senate most likely remains their best hope on Capitol Hill 
     for gathering information, making them disinclined to abandon 
     the Senate Intelligence Committee's investigation. The F.B.I. 
     is also investigating.
       On Wednesday, Mr. Burr and his Democratic counterpart on 
     the committee, Senator Mark Warner of Virginia, offered some 
     evidence of what they had reviewed so far, saying they had 
     begun to schedule the first of at least 20 interviews.
       Mr. Warner drew attention to reports of perhaps 1,000 
     internet trolls in Russia generating fake news stories and 
     targeting them in swing States like Wisconsin, Michigan, and 
     Pennsylvania. ``Russia's goal, Vladimir Putin's goal,'' said 
     Mark Warner, ``is a weaker United States.''
       Mr. Burr noted that the Russians were now ``actively 
     involved'' in the French elections. On Thursday, the 
     committee will hold a public hearing on Russian influence on 
     campaigns broadly.
       The two also left little doubt that they viewed the House's 
     unruly process as an afterthought, one that should not 
     reflect on their own efforts.

  ``Let me set the ground rules real quick,'' Mr. Burr said, ``before 
taking questions. We will answer anything about the Senate Intelligence 
Committee's investigations. We will not take questions on the House 
Intelligence Committee.''

       Mr. Burr could not suppress a smirk. Mr. Warner laughed 
     outright.
       But the drama in the House has already complicated the 
     Senate's task, according to Senate committee members, leading 
     the public to question congressional inquiries across the 
     board.
       ``I worry that the chaos on the House side has affected the 
     public's view on whether Congress can credibly investigate 
     this matter,'' said Senator Susan Collins, a Republican from 
     Maine and a committee member. ``I believe the answer to that 
     is still yes, and the Senate is the place.''

[[Page S2284]]

       Lamenting the ``debacle'' in the House, Senator Kamala 
     Harris, Democrat of California and another committee member, 
     said she believed ``the public is now shifting to us.''
       The Congressional investigations are not related, but their 
     focuses overlap, leaving the Senate panel to defend itself in 
     the face of Mr. Nunes's assorted claims. While a vast 
     majority of Republicans in the House have stood by Mr. Nunes 
     amid calls for him to recuse himself, his furtive 
     maneuvering--including bypassing the committee to brief the 
     White House about relevant intelligence--has placed House 
     committee members in a difficult spot.
       And at least one Republican lawmaker, Representative 
     Charlie Dent of Pennsylvania, suggested on Wednesday that the 
     Senate should take the lead on Congress's investigation into 
     ties between the President's orbit and Russia.
       The Senate majority leader has long resisted calls for a 
     special prosecutor or select committee, saying the Senate can 
     do the job through regular protocol.
       On the House side, a string of perplexing decisions by Mr. 
     Nunes has threatened to unravel the panel's investigation 
     altogether. Last week, he abruptly announced that he had 
     obtained information indicating that people associated with 
     the Trump transition may have ``incidentally'' been caught up 
     in legal surveillance of foreign operatives. He also bypassed 
     the committee's top Democrat, Representative Adam B. Schiff 
     of California, to brief Mr. Trump.
       The President seized on the information, misleadingly, as 
     evidence for his thoroughly debunked claim that President 
     Barack Obama had wiretapped Trump Tower--an allegation 
     dismissed not only by senior law enforcement officials like 
     the F.B.I. Director James Comey, but also by the heads of the 
     House and Senate investigations, including Mr. Nunes.
       Another obstacle to bipartisanship came on Monday, with the 
     revelation that Mr. Nunes had viewed what he characterized as 
     ``dozens'' of reports containing classified information on 
     the grounds of the White House.
       Democrats fumed, their suspicions fueled by speculation 
     that the source of Mr. Nunes's information was a Trump 
     administration official and that Mr. Nunes may have even 
     coordinated with the White House. While Mr. Nunes defended 
     him by saying he needed to be at the White House to view the 
     sensitive documents in question, one can peruse sensitive 
     information at the Capitol and at other spots around 
     Washington.

  The story of the House investigation melting down continues, and it 
really emphasizes how important the Senate investigation is. I have 
been very impressed by Senator Burr and Senator Warner working together 
to pursue that investigation. I feel that more needs to be done. Yes, 
the FBI needs to investigate, and the Senate Intelligence Committee, 
and the press, but we should also have a special prosecutor. We should 
also have a bipartisan commission. But if each part of this puzzle 
pursues their work aggressively and in good faith, we may get to the 
bottom of what went on. It is so important to hold people accountable, 
and if traitorous crimes have been committed, they need to be pursued 
to the full extent of the law.
  The article goes on:

       Democrats have also chafed at Mr. Nunes's shuffling of the 
     hearing schedule. Earlier this month, with Mr. Schiff by his 
     side, he announced plans for three former officials to 
     testify, a group that would include Sally Q. Yates, who 
     briefly served as acting Attorney General and alerted the 
     administration that Michael Flynn, Mr. Trump's former 
     National Security Adviser, appeared to have lied about his 
     contact with Russian officials.
       Last week, Mr. Nunes scrapped that public hearing, arguing 
     that the committee first needed more time to question 
     intelligence leaders. But on Tuesday he said this hearing had 
     been postponed as well--as the Washington Post reported that 
     White House officials had tried to stymie Ms. Yates's 
     testimony. Democrats have accused Mr. Nunes of trying to 
     stall not only the investigation but also the committee as a 
     whole.
       Mr. Warner said on Wednesday he would ``like to see Ms. 
     Yates at some point'' before his committee.
       At the same time, the Senate investigation has not been 
     blemish-free.

  Well, this can be summed up by saying that each of them are saying 
that they are partners and they are working on this together. And I 
urge them to continue that work aggressively.

       ``I'll do something I've never done: I'll admit I voted for 
     him,'' Mr. Burr said of Mr. Trump. ``But I've got a job in 
     the United States Senate.''

  And we have a job to address. We are here at this critical moment, 
wrestling with what to do with this stolen Supreme Court seat, knowing 
that if we confirm a nominee to this seat and confirm and complete the 
theft, it will damage the Court through the rest of our lifetimes. It 
will set a precedent that will cause more turmoil, more politicization. 
It will call into question every 5-to-4 decision of the Court. That is 
our responsibility, to figure our way out of this.
  One of the articles I read earlier suggested a path out of this. It 
said to keep this seat empty. Set this aside until there is a second 
seat, and then the nominee, Merrick Garland, who should have been 
considered for the first seat, would be considered, and the second 
nominee would be whoever President Trump wants to put forward, and 
maybe that is the same nominee we have now. Maybe it is Neil Gorsuch; 
maybe it is somebody else. But the point is you eliminate the stolen 
seat syndrome.
  Maybe there are other pathways out of this, but proceeding to the 
completion of this week, in confirming Neil Gorsuch, that is where this 
week ends. It is truly deeply damaging to the Supreme Court for the 
balance of our lives. Let us not be partners to such a destruction of a 
key branch of our government.
  The damage won't just be to the Supreme Court. It is also to this 
body. Because once this body conspired in the theft, the wounds here 
are deep and will continue to cause tremendous acrimony as we go 
forward, and it will lead to future acts in the Senate--perhaps 
balancing out the first theft with a second theft--and so on and so 
forth, in which nobody wins.
  So let us come to our senses and not have this week end in the manner 
in which it has been predicted that it will.
  NPR wrote, or it has a piece done by Philip Ewing: ``4 Unanswered 
Questions About the FBI's Russia Investigation,'' March 20.

       FBI Director James Comey lit the fuse Monday on a political 
     time bomb and no one--including him--knows how long it will 
     take to burn or what kind of damage it may cause when it goes 
     off.
       Comey confirmed to Members of Congress that his 
     investigators are looking into possible collusion between the 
     campaign that elected President Trump and the Russian 
     government. In fact, he said, the FBI has been doing so since 
     last July.
       The signs had been there, from press reports to the 
     announcement by Attorney General Jeff Sessions that Sessions 
     would recuse himself from any such probe. Now, Comey's 
     disclosure to the House Intelligence Committee removes all 
     doubt that the FBI believes there is sufficient evidence to 
     look into the connection between Trump's one-time political 
     aides and the Kremlin.
       The case that Russia interfered in the presidential 
     campaign has been made. The U.S. intelligence community laid 
     out an unclassified version in December, and then President 
     Barack Obama responded by expelling a group of Russian spies 
     and sanctioning some of its key officials.
       But details about the role Trump's team might have played 
     in the making of that mischief still are murky, and Monday's 
     hearing did not include much explosive new information. In 
     fact, the panel's chairman, California Representative Devin 
     Nunes, who served on Trump's transition team, and his fellow 
     Republicans, spent as much of their time as they could 
     drawing the focus away from the Russian collusion narrative.
       The real outrage, Republicans argue, is the leaking of 
     classified information to the Washington Post and other 
     newspapers, especially the identity of former lieutenant 
     general Mike Flynn as having been swept up in U.S. Government 
     surveillance of Russian ambassador Sergei Kislyak.

  I am sure I will be corrected on that later, with the correct 
pronunciation.

       Flynn resigned after a brief stint as Trump's National 
     Security Adviser and has since retroactively registered as a 
     foreign agent for his work representing Turkish interests. 
     Democrats revealed on Friday that Flynn had also taken more 
     than $50,000 in payments from Russian government entities.
       Democrats, led by ranking member Adam Schiff, also of 
     California, used their time on Monday to put Trump and the 
     Russians together as closely as possible, including in an 
     extended opening statement by Schiff that laid out his theory 
     of the case.
       Much of Schiff's statement, however, relied on information 
     that is already publicly available, which has been called 
     into question. Monday's session did not include major new 
     details about the alleged ways that the Trump camp may 
     have worked with the Russian intelligence services.
       But it did raise new questions about the imbroglio--some of 
     which lawmakers may answer at a second session now scheduled 
     for March 28, and some of which might not be cleared up until 
     the FBI announces the results of its investigation.

  The first question:

       1. How much evidence is still to be discovered? And how 
     reliable is what's now public?
       Schiff crafted a narrative about the Russians' first 
     exploration of the presidential candidates to a critical 
     period from July to August of 2016. If Moscow began by trying 
     simply to learn more about the potential next U.S. president, 
     it shifted to trying to hurt the likely Democratic nominee, 
     Hillary

[[Page S2285]]

     Clinton, and then helping her opponent--or so the argument 
     goes.
       Schiff relied on information that has appeared in press 
     reports and some that appears in a controversial dossier 
     passed from a former British intelligence officer to Comey by 
     Sen. John McCain, R-Ariz. NPR and other news organizations 
     have refrained from reporting such details because of the 
     unknown providence of the dossier--but does Schiff's use of 
     it in the public hearing indicate that at least some of the 
     information has been verified?
       The Democrats' case also rests on conversations between 
     Trump advisers and people connected to the Russian military 
     intelligence service, the GRU, or other top Russians. But how 
     much more detail exists about what was said in those 
     meetings? How much effort are congressional or FBI 
     investigators making to interview Trump's campaign advisers?

  So the first question in the NPR report is, How much evidence is 
still to be discovered and how reliable is what is now public?
  The second question in this report:

       2. Might Trump aides have colluded with Russia without 
     knowing it?
       One new thread that emerged from Monday's hearing came as 
     part of an exchange between Comey and Illinois Democrat Mike 
     Quigley, who asked whether it's possible for Americans to 
     help a foreign power and not know about it.
       Yes, Comey answered cautiously--an American might give 
     information to someone he legitimately believes is a Chinese 
     researcher and isn't aware is actually a Chinese intelligence 
     officer. Or an America might fall in love with someone and 
     not realize he or she is in a relationship with a foreign 
     agent: ``Romance could be a feature,'' he said.
       That could explain denials by people at the center of the 
     Trump-Russia imbroglio, including former Trump campaign 
     manager Paul Manafort, who resigned after reports about his 
     connections to pro-Kremlin government factions in Ukraine. 
     The New York Times referred to Manafort in a story in 
     February about U.S. intelligence officers documenting many 
     alleged connections between the Trump camp and Russians.
       Manafort called the report ``absurd'' and told the 
     newspaper: ``It's not like these people wear badges that say, 
     `I'm a Russian intelligence officer.' ''
       Manafort's comment caused head-scratching at the time it 
     appeared, but Comey and Quigley's exchange on Monday created 
     the prospect for a story about Russia not necessarily using 
     Trump campaign aides as agents, but dupes.

  The third question in this NPR article:

       3. What did Trump know--and when did he know it?
       If Comey's investigation results in no charges or no new 
     information about ties between Trump's camp and Russia, the 
     White House would get rid of an albatross that has been 
     around its neck for months. But if the FBI charges former 
     Trump campaign officials or reveals links between the Trump 
     camp that haven't already been aired publicly, that could 
     escalate quickly and land the president or his top campaign 
     aides in hot water.
       Trump never retreats and never apologizes and so far has 
     mounted a brash defense. He flits between sometimes 
     acknowledging the Russian mischief during the presidential 
     race and sometimes dismissing it as a fiction created by 
     Democrats to excuse their loss. That strategy has continued 
     to be workable, and Republican aides on Capitol Hill have 
     shown continued willingness to carry water for the White 
     House in responding to press reports or handling inquiries 
     like those on Monday.
       But charges against Trump aides, or new revelations about 
     collusion between the campaign and Russian agents, would 
     change all that--and fast. Democrats may never forgive Comey 
     for revealing just before Election Day that the FBI had 
     resumed inquiries into Hillary Clinton's private email 
     server, which Clinton and Democrats say threw a close 
     election to Trump. Now the president, the White House and 
     their Republican allies on Capitol Hill are under a similar 
     Sword of Damocles.

  The fourth question:

       How will Russia respond to the investigations and their 
     outcome?
       Comey, National Security Agency Director Michael Rogers and 
     other top U.S. intelligence officials have taken care not to 
     say whether they believe Russia succeeded in influencing the 
     outcome of the 2016 election--only that they're confident 
     Moscow conducted an influence campaign.
       Will Russian President Vladimir Putin turn out to have 
     invested wisely or to have been the dog that caught the car? 
     If Putin wanted the U.S. to relax the Obama-era sanctions 
     imposed after Russia's invasion of Ukraine, that ship may 
     have sailed--the scrutiny of Trump's connections to Moscow 
     may have now made even the appearance of any deal impossible.
       And American military deployments in Eastern Europe, 
     including of armored units along NATO's frontier with Russia 
     and ships with aircraft in the Black Sea, have continued.
       None of this means, however, that Putin is finished 
     meddling in American politics, Comey warned. He told members 
     of Congress on Monday that the Russians, for their own 
     purposes, likely are satisfied with their work--having sowed 
     confusion and undercut faith in the U.S. democratic process--
     and may try it again.
       ``We have to assume they're coming back,'' he said.

  We have to assume they are also working to undermine the elections in 
other democratic countries, and we need to be working with our allies 
and fellow democracies to fully understand and thwart this Russian 
strategy of undermining the foundation for our democratic Republic's 
elections.
  The NPR article raised very good questions--questions to which we 
don't have answers. But just the breadth of the questions shows how 
significant this situation is.
  I understand the Sun is coming up behind the Supreme Court. I was 
struck just how beautiful the weather was yesterday, while the weather 
inside this building was so dark and gloomy. Mother Nature gave us a 
beautiful, beautiful day. The partisan politics gave us a very, very 
ugly setting here in the Senate Chamber as we started debating over a 
nominee nominated to fill a seat which did not open up under President 
Trump's watch and which he has no right to propose a nominee. This is a 
seat stolen from the Obama administration, delivered to President 
Trump.
  Wouldn't it have been something if President Trump said: I talked a 
lot about bringing this country together, and that starts by honoring 
our institutions. So I am going to heal this rift. I am going to end 
this theft by nominating Merrick Garland. Sixteen times--the President 
could have said--16 times in the history of our country, there has been 
an open seat during an election year on the Supreme Court. And we 
already know the past; that is, 15 times the Senate considered the 
nominee and either confirmed or rejected them but always considered 
them--except with Merrick Garland.
  We are going to heal that damage, the President could have said, and 
so first we will put forward Merrick Garland. Then when a seat opens 
legitimately on my watch, I will put forward a nominee I would choose 
according to the principles I laid out in my campaign. But I am not 
going to damage the Supreme Court for generations to come by 
participating in this strategy of packing the Court.
  If the President had given that speech, that would have been an 
impressive moment--a moment of bringing this country together, of 
saying that he is the President not of the Republican Party but of the 
United States of America, which has these beautiful key branches of 
government, coequal branches--the executive branch, the legislative 
branch, the judicial branch--bringing all three of those together in 
that conversation and saying: What the legislative branch did sets the 
stage to damage the Supreme Court, and as President, I won't 
participate in it. I will solve it. I will bring people together. I am 
the great negotiator. I know how to make a deal. Right now, the only 
deal is a bad deal that damages all three branches, a deal that was 
crafted within a few minutes following the death of Antonin Scalia, on 
the same day the majority leader came to the floor and said: We are 
going to do something never done before in American history. We are 
going to steal a seat.
  Of course, those are not the words he used. His words were: We are 
not going to have any Senate action on this nominee, the nominee the 
President will put forward for this seat.
  If only at that moment the Senate had been the cooling saucer. That 
is the idea that Washington reputedly put forward, considered to be 
apocryphal, but it is a nice image that sums up the difference between 
the House and the Senate--the Senate elected for 6 years, seats 
rotating every 2 years. And when there are wild ideas crafted in the 
passion of the moment, the Senate comes along and says: We will bring a 
little more experience and thoughtfulness. We will bring a little more 
deliberation, and we will craft something that will strengthen America, 
strengthen our institutions, not destroy them.
  But we didn't have that reaction on that day when Antonin Scalia 
died. Instead, we had not the cooling saucer, but we had the immediate 
rush to a principle that will do so much damage. And I say 
``principle'' only in the context of an asserted argument; that is,

[[Page S2286]]

an argument that, well, it is an election year, so we really shouldn't 
consider someone. It should go to the next President. There was no 
principle behind it and no history behind it. As I pointed out, 15 
seats were open during the election year in the history of our country, 
and the Senate acted on every one until the 16th, when Antonin Scalia 
died, and within just a couple hours, the majority leader announced 
that we will do what we never did, and that is, fail to honor the 
advice and consent responsibility of the U.S. Senate.
  Mr. DURBIN. Mr. President, will the Senator from Oregon yield for a 
question without yielding the floor?
  Mr. MERKLEY. I will do so.
  Mr. DURBIN. As I recall, there was a moment in 1988, in the last year 
of President Reagan's Presidency, when there was a vacancy on the 
Supreme Court. This Republican President was in his last year--his so-
called lameduck year, as many Republicans have now characterized it. At 
that time, the Senate was in the control of the Democratic Party. Of 
course, the Senate Judiciary Committee, I believe, was chaired by Joe 
Biden at that time in 1988.
  President Reagan sent the name ``Anthony Kennedy'' to the Senate to 
fill a vacancy on the U.S. Supreme Court and the Democratic Senate held 
a hearing and a vote and sent Anthony Kennedy to serve on the U.S. 
Supreme Court, where he continues to serve. So those who argue on the 
other side that everybody is doing it, that ``you would do the same 
thing, if you could'' and that sort of thing, I believe that is belied 
by the history--the recent history--when the Democrats were in the 
majority in this Chamber.
  So the Senator from Oregon is saying that this is not the only time 
in history this has occurred, and Senator McConnell ignored this and 
decided not to even have a hearing or vote on Merrick Garland--
something that has never been done in the history of the Senate, which 
brings us to this moment. Is that the point the Senator is making?
  Mr. MERKLEY. My colleague from Illinois is absolutely right. In the 
middle of the night somewhere, a few hours ago, I pointed out that this 
evidence of different style of action didn't just depend on the history 
books because you can look a few hundred yards here from the Senate out 
at the Supreme Court, where Justice Kennedy sits and had gone through 
the process, just as the Senator had described.
  Mr. DURBIN. I would ask the Senator from Oregon, as well, through the 
Chair, in this situation where Senator McConnell, as the Republican 
Senate leader, has exercised his so-called nuclear option to stop 
Merrick Garland, President Obama's choice, from filling the vacancy on 
the Supreme Court, does the Senator from Oregon believe, as I do, that 
this is part of a concerted effort by the Republicans to take control 
of the Federal judiciary, the fact that we left the end of the last 
year with 30 Federal judicial nominees on the Senate calendar, nominees 
who had received a bipartisan vote in the Senate Judiciary Committee? 
They were left unresolved, unvoted on, when the Senate went out of 
session. Does the Senator from Oregon see as I do, a pattern of conduct 
on the Republican part when it comes to filling the courts?

  Mr. MERKLEY. As my colleague has pointed out through his question, 
the challenge we have with the appropriate treatment of our advice and 
consent responsibility isn't simply a problem with the Supreme Court 
nominee, but with strategies to prevent the consideration of judges 
from our former President--both at the district court and at the 
circuit court levels--leading to the circumstances you describe.
  Mr. DURBIN. Is the Senator from Oregon aware of the fact that 
President Trump, during his campaign, released the list of 21 names of 
potential nominees for the Supreme Court, and then thanked the 
Federalist Society and the Heritage Foundation for preparing that list? 
The Federalist Society--a Republican advocacy group here in Washington, 
DC--now brags that every member of the Supreme Court appointed by a 
Republican President has either been a member of or cleared by the 
Federalist Society before they took the bench.
  Mr. MERKLEY. I am aware of that, and it disturbs me that the 
responsibility of the President to find the right person to place on 
the Court was farmed out, essentially, to these two groups the Senator 
mentioned.
  While often people will say: Did the President ask the nominee a 
particular question about how they might rule on XYZ, I am sure that it 
is quite likely that these groups did ask all sorts of questions in 
developing their list of 21 potential Justices.
  Mr. DURBIN. I wonder if the Senator from Oregon will yield for 
another question through the Chair.
  I ask, when it comes to the Federalist Society--of course, like so 
many of these dark money organizations, they refuse to fully disclose 
their donors. They say it is to protect their identity from harassment. 
It is also protecting the American people from the truth.
  Three that we do know have been actively involved would be the Koch 
brothers--a well-known group supporting Republican candidates--the 
Richard Mellon Scaife family foundation, as well as the Mercer family, 
now merging with millions and millions of dollars supporting these 
Republican causes.
  I ask the Senator: Is it a leap of faith for me to think that they 
would not be working so hard to put someone on the Court, unless they 
felt that person was going to rule along the lines that they believed?
  Mr. MERKLEY. I think that would not be a leap of judgment or 
analysis. Clearly, the groups like the Koch brothers believe that their 
interests are deeply connected to the decisions made in this body. And 
they have invested vast resources into the campaigns, so it is not just 
that they said: Well, let's go down and talk to people in the Senate 
about our particular interests as coal and oil billionaires. No, they 
decided to change the makeup of who sits in this body. In 2014, the 
investment involved going into Louisiana and Arkansas and North 
Carolina and Iowa and Colorado and Alaska and several other States, 
including my State, the State of Oregon. And they won most of those 
States that they invested in.
  Then they sent a message in January 2015 by saying: In the next 
election, we are prepared to spend the better part of a billion 
dollars. That was heard very loudly in this Chamber, and the first bill 
up was a Koch brothers' bill. You see their influence in all kinds of 
ways, indeed.
  I believe the reason we are here today in this conversation is in 
large part because those who invested in creating the majority that we 
now have in this Chamber wanted to make sure that there was a Supreme 
Court that would sustain the Citizens United ruling that allows this 
dark money of which the Senator speaks.
  Mr. DURBIN. I ask the Senator from Oregon through the Chair again: 
During the course of the Senate Judiciary Committee hearing, Senator 
Sheldon Whitehouse raised this question about dark money with Neil 
Gorsuch, the nominee for the Supreme Court, and asked if he was aware 
of the fact that millions were currently being spent on ad campaigns 
and mail campaigns across the United States to promote his nomination--
and whether Neil Gorsuch felt that the source of this money should be 
disclosed. As far as we could bring the judge on this subject, he said: 
Well, someone should ask about where the money is coming from. That, I 
guess, is a pretty bold statement because many Republicans don't 
believe that it is fair to even ask where the money is coming from.
  There was a time when even the Senate majority leader used to say: I 
am not going to complain about the amount of money. I just want to make 
sure it is all disclosed. Well, he is completely vacating that 
position. He doesn't want disclosure. He doesn't want the American 
people to know where the money is coming from.
  I don't know if the Senator from Oregon noticed the television 
advertising here in Washington, where there is a lot on an issue like 
this before us. But the television screens--at least for those morning 
talk shows--were inundated with advertising in favor of Neil Gorsuch 
from groups like the 45 Committee, Judicial Justice Committee. They 
make up these names right and left.
  I ask the Senator: When it comes to decisions like Citizens United, 
does

[[Page S2287]]

that give us clear evidence of why the Republicans are fighting so hard 
to make sure they put the right person on the Supreme Court?
  Mr. MERKLEY. I say to my colleague from Illinois that the entire 
situation we are in revolves around the issue of dark money and having 
a person on the Court who will sustain that flow. That Citizens United 
decision was a 5-to-4 decision. Four Justices laid out the case that 
these unlimited funds--and often secret funds--are corrupting our 
American political system. And if one wants an example of that 
corruption, simply look at the vast change--within a short period of 
years--of the position of our colleagues on the right side of the aisle 
in regard to the environment.

  We had many colleagues who were very concerned about carbon pollution 
coming from the extraction and burning of fossil fuels. They wanted to 
make sure that we had a sustainable planet to pass on to our children--
our children's children. It was following a Republican tradition of 
being involved in things like the Environmental Protection Agency 
creation with President Nixon and the Clean Water Act and Clear Air 
Act.
  In a short period of time, like a shallow pool beneath a hot sun, it 
just evaporated. That concern for the environment just disappeared and 
dissipated. The result is that today, we have virtually no support to 
take on this major environmental threat in a bipartisan fashion, and 
that corresponds to this flow of dark money from the oil and coal 
billionaires into the campaigns for the Senate in the United States of 
America.
  So it is a deeply disturbing situation in which absolutely a lot of 
the explanation as to why we have a stolen Supreme Court seat and why 
we have this nominee and why he is being rushed through in a way that 
no Supreme Court seat had been rushed through ever before.
  Yesterday--Tuesday--just shortly before I started speaking last 
night, the majority leader came to the floor and said that he was 
filing a petition to close debate. That is the first time in U.S. 
history that has been done on the first day of the debate. That is the 
type of, I guess, completely focused effort to complete the theft that 
began last year.
  Mr. DURBIN. I ask the Senator from Oregon if he will further yield.
  Neil Gorsuch, the judge from the Tenth Circuit who has been nominated 
for the Supreme Court, has had some noteworthy opinions. One was the 
Hobby Lobby case. It is an interesting parallel between Hobby Lobby and 
Citizens United. In Citizens United, the Supreme Court said: We believe 
that money is speech. And we believe that the protections of the First 
Amendment extend to corporations who should be treated like persons 
when it comes to their right of free speech.
  In the Hobby Lobby case, Neil Gorsuch, who is headed for the Supreme 
Court, reached a parallel decision, giving good credibility to the 
argument that the Republicans know why they are pushing for this man to 
go to the Court because this was a case where the Hobby Lobby company, 
which has stores across the United States owned by the Green family--
the Green family had their own special personal religious beliefs when 
it came to family planning and birth control. So they refused to 
provide for their 13,000 employees across the United States any health 
insurance plan that provided for methods of birth control, which they 
found personally offensive. They said that this was a corporate 
position they were taking--a company position.
  So it was Neil Gorsuch, with others on the Tenth Circuit Court, who 
decided to expand the definition of personhood--again to include 
closely held corporations like Hobby Lobby. The net result was that the 
owners--the Green family--were able to say: We are going to stand up 
for our religious beliefs when it comes to family planning. And to say 
to 13,000 employees that those employees' personal beliefs--the 
religious beliefs of each employee--really made no difference from the 
viewpoint of Judge Gorsuch. Once the owners of the company had decided 
what was good, principled religious conduct, they could impose that on 
their employees.
  So there is a parallel here where Citizens United said a corporation 
is a person. Judge Gorsuch and Hobby Lobby said that a closely held 
corporation is a person. And in the Citizens United case, he said this 
person--corporation person--has the right of free speech. In the case 
of Hobby Lobby, Judge Gorsuch said this corporation has the right of 
freedom of religion to exert their sincerely held religious beliefs.
  So I say to the Senator from Oregon: It is clear to me that they 
tested Judge Gorsuch in the Tenth Circuit, and he came out ahead when 
it came to the basic principle that corporations should somehow be 
treated as persons when it comes to rights under the Constitution. That 
to me is hard to imagine.
  I just can't fathom how they could stretch the meaning of person to 
include corporations when it doesn't say so expressly in any of the 
statutes that were referenced here. I haven't seen a lot of 
corporations pleading guilty and being sent to prison. It doesn't 
happen much.
  So my question to the Senator from Oregon is, when it comes to the 
clearance of Neil Gorsuch for the Supreme Court seat--this open seat on 
the Supreme Court--whether they found the Hobby Lobby decision 
something that said to them: This man would believe in Citizens United 
had he been on the Court at the same time.
  Mr. MERKLEY. I say to my colleague from Illinois that we will 
probably never know the full vetting that took place and the 
conversations that took place, but your observation that Hobby Lobby 
involves a parallel with Citizens United is absolutely right. In 
Citizens United, the Court said: The corporation gets these political 
rights; that is, the ability to spend money in campaigns, unlimited 
funds. And in Hobby Lobby, the corporation gets religious rights, if 
you will--the right to overrule, not just express them through the 
benefits they provide to their employees, but to trump the religious 
choices of their employees. It is kind of a super religious power, if 
you will, choosing the corporation over the people. In both cases, 
there is this element of choosing the corporation, promoting it, 
exalting it, over the rights of individuals.
  Jefferson made a comment in a letter where he talked about the 
philosophy of the mother principle. The mother principle said that the 
only way our government will proceed to fulfill the will of the people 
is if each citizen has an equal voice--not vote, but voice. ``Vote'' 
was a big piece of that, but he chose the word ``voice,'' as did 
President Lincoln on another occasion. The point he was making is that 
you have to have a place where everyone can weigh in, more or less, in 
equal fashion.
  The opposite of that is Citizens United, where an individual who is a 
multibillionaire can weigh in massively by buying up the air waves, the 
radio waves, the television waves, the web advertising, the social 
media, scrolling and so forth--all of these tools that didn't exist at 
the time they were formed. So there is this ability for the wealthiest 
to do a citizen sound equivalent of a stadium sound system that drowns 
out the voice of the people, just as you have this situation in Hobby 
Lobby where the religious preference of the corporate entity can trump 
the religious preferences of the employees.
  Mr. DURBIN. If the Senator from Oregon will yield further, when I 
started trying to find out the source of the money for these television 
ads that support Neil Gorsuch for the Supreme Court, I went to 
something--the 45 Committee, I mentioned to you. I had never heard of 
it before. I looked it up. There was a committee that sounds just like 
this. It is hard to keep track of them. The largest donor by far in 
terms of money was Sheldon Adelson, a man out of Las Vegas who has 
become rather celebrated, if not notorious, for putting millions of 
dollars into those political efforts on behalf of candidates from the 
right--some say from the extreme right.
  I would also ask the Senator from Oregon if, during the course of his 
review of Judge Gorsuch's record, he came across the TransAm Trucking 
case, which was really explored at length in the Senate Judiciary 
Committee. Many of us felt this was such a clear definition of the 
values of Neil Gorsuch, who tends to rule on the side of big business 
and corporate elites over and over again.

[[Page S2288]]

  The case involved a truck driver who was driving near Chicago on 
Interstate 88 in January a few years ago during a bitterly cold period 
of time. He had trouble with his trailer. He pulled it off to the side 
of the road and realized the brakes on the trailer were frozen. So he 
got on his cell phone and he called his dispatcher, and his dispatcher 
said: Whatever you do, stay with that truck and trailer. The repairman 
is on the way.
  So he waited a while. No one showed up. He fell asleep. By the time 
he woke up to a phone call from a member of his family, his legs were 
numb and he was having trouble breathing. It turned out there was no 
heater in the cab of the truck. So there he was, facing hypothermia and 
freezing in his truck. Again, the dispatcher told him: Stay there. 
Don't leave the truck.
  He decided that the idea of dragging this trailer down the interstate 
was dangerous and the idea of staying in this truck could threaten his 
own life, so he made what I consider to be a reasonable decision: He 
unhitched the trailer, took the truck to the gas station, filled it 
with gas, warmed up, and came back to the trailer. For that conduct, he 
was fired by TransAm Trucking. Because he was fired, he was blackballed 
from ever driving another truck.
  This man, whom I happened to meet in my office a few weeks ago, 
Alphonse Maddin, then did not know which way to turn. He couldn't make 
a living. He was a hard-working fellow out of Detroit.
  Somebody said: You can go to the Department of Labor, and you can 
file a complaint for unfair dismissal.
  I see the Senator has a photograph of Mr. Maddin there.
  He told me he went to the Department of Labor. They handed him the 
form. With a ballpoint pen, he filled it in as to what happened to him, 
protesting this dismissal and firing. He said he was shocked a few 
months later to get a letter in the mail that said: You win. You are 
right. They shouldn't have fired you.
  Well, he thought that was a pretty good thing and that he would get 
some backpay out of it. But then the appeals started, and it went in 
the Federal court system. By the time it got to the Tenth Circuit, 
where Judge Neil Gorsuch sat, seven different court judges and 
administrative judges had considered the case of Alphonse Maddin as to 
whether it was fair to fire him under these circumstances. Only one 
judge out of the seven said it was the right thing to do--Neil Gorsuch, 
the man who aspires to be on the Supreme Court.
  One of my colleagues--and I think it was Senator Franken--said to 
Judge Gorsuch: What would you have done if you were sitting in that 
truck? What would you have done if you faced freezing to death or 
dragging a disabled trailer out on a busy interstate, endangering the 
lives of others?
  Judge Gorsuch replied: I never really thought about it.
  He never really thought about it. To me, that really gets to the 
heart of what we are talking about here. He thought about it enough to 
rule against that truck driver who faced that terrible choice in his 
life, but he did not think for a moment what a reasonable, ordinary man 
would do under the circumstances. He reduced the situation to the 
absurd and decided to rule for the trucking company, for the 
corporation.
  When you consider that this Roberts Supreme Court has ruled on the 
corporate side, the U.S. Chamber of Commerce side, 69 percent of the 
time, it is pretty clear why they have this fond feeling for Neil 
Gorsuch as the next Supreme Court Justice.
  Does the Senator from Oregon see the linkage here between what the 
Republicans are looking for in a Supreme Court nominee and what they 
would find in this TransAm Trucking decision?
  Mr. MERKLEY. My colleague from Illinois brings up the frozen trucker 
case, as it has often been referred to, and how it demonstrates an 
effort to really twist the law away from its original purpose in order 
to find for the powerful over the individual.
  In this particular case, when he wrote his viewpoint, Neil Gorsuch 
revealed a whole lot because here was a law specifically crafted to 
protect truckers from being fired if they operated for personal safety 
or the safety of the public.

  Clearly, for him to have driven that trailer down the road, a fully 
loaded trailer without brakes because the brakes were frozen, would 
have been incredibly dangerous to all kinds of people. To stay in that 
cab freezing to death was dangerous to him. You can interpret the 
concept of operating a truck, and the law said refusing to operate a 
truck. Well, does refusing to operate a truck mean that you refuse to 
operate it in exactly the manner that you were told to? Does it mean 
driving the cab without the trailer or the cab with the trailer?
  Gorsuch zeroed in on the fact that, well, he did not refuse to 
operate because he drove the cab. He was operating. Well, no, he was 
not operating in any common person's understanding. He left the trailer 
there. He wasn't driving it down the road. But he searched for that 
slight little way that he could say: Well, that does not quite fit, and 
therefore I can find for the corporation.
  It just fits case after case after case in which the nominee who is 
before us now stretched the law, twisted the law, tortured the law, in 
order to try to find a victory for the powerful over a person.
  Mr. DURBIN. I thank the Senator from Oregon for yielding for 
questions.
  Mr. MERKLEY. I thank my colleague from Illinois for coming down to 
help focus on some of those cases. I appreciate the great knowledge he 
brings to Senate issues and the deliberations in the Judiciary 
Committee. I am not a member of the Judiciary Committee, so, as I 
listened to my colleagues commenting on the questions that were being 
raised and how they were being answered, I saw in the course of those 
hearings a trajectory in which many colleagues found, as they looked 
into the heart of these decisions, that there was an absence of heart 
reflected in the decisions.
  The ability to understand the full context of which something 
happened is so important. When I was a freshman in college, I had a 
course, a freshman seminar, and that seminar was taught by an esteemed 
professor of the law school. She would have us read the circumstances 
of a case, and then say: How would you have ruled on this case? We 
would write up our little memos, our short little memos, not really 
based on law because we didn't know the law but on common sense or 
whatever life experience would have brought to bear.
  Then the next week, we would read the Justice's opinions, their 
decisions on what they had found to be the case--did they sustain the 
argument for the defense or otherwise, and what arguments did they 
bring to bear?
  I was always struck that William O. Douglas seemed to have the best 
grip on being able to place himself into the mindset and the situation 
of folks who were bringing grievances forward to be addressed. I think 
a lot of that came from his life experience and the life experience in 
which he had basically lived in the wilderness part of the time. He had 
hung out with hobos, and he had ridden the rods underneath the railroad 
cars to get from one place to another. He had experiences that were not 
just inside the bubble--the billionaire bubble, the elite bubble, the 
gated community.
  The opposite of that is the situation when I was in New York back in 
2008 and I was speaking to someone about campaigning for the Senate. 
The individual said: I don't understand why you are so concerned about 
healthcare. Everybody has healthcare--everybody. Well, in his world, in 
his bubble, everybody had healthcare and everybody was wealthy, but 
that is not the entirety of the world.
  So it is so important to have people on the Court who can get inside 
the experience that others have and that diverse experience. You don't 
see that reflected in decisions that have been written by Neil Gorsuch.
  I thank my colleague from Illinois.
  The Guardian wrote an article titled ``The Guardian view of Trump's 
Russia links: a lot to go at.'' I will share this particular article, 
but before I do so, let us remember that we are here at this moment 
with three substantial issues.
  One issue is the fact that for the first time in U.S. history, a 
Supreme Court seat has been stolen from one President and delivered to 
another--the first

[[Page S2289]]

and only time. Sixteen times we have had a vacancy in a Presidential 
year, and 15 times the Senate has acted to consider the nominee, in 
some cases rejecting them, in some cases--in most cases confirming 
them, but always acting until last year.
  The second big issue is this Russia investigation, the investigation 
of the links between the Trump campaign and the Russians, this big 
cloud hanging over the legitimacy of the Presidency. It needs to be 
resolved. That certainly affects whether it is legitimate to be 
considering at this moment the President's nominee before that cloud is 
dissipated or resolved because this individual, whoever is confirmed 
for this seat, will quite likely serve for many decades. When it is a 
younger nominee, as it is with Neil Gorsuch, that could be five 
decades. It could be an extensive length of time with decisions that 
stretch far into the future.
  Rather than rush through this in a few days, we should be setting 
this aside until these issues are resolved to make sure that we have 
established the legitimacy of the President's role in office and gotten 
rid of this cloud hanging over him.
  The third, of course, is the nominee himself. I so much appreciate my 
colleague from Illinois proceeding to, through his questions, raise a 
number of the points about Neil Gorsuch's record. There is the case of 
the frozen trucker. We did not talk about the case of the autistic 
child, but that is very similar, where the law--and it is similar in 
this sense--the law was quite clearly written to promote a particular 
resolution of a challenge, and that is that every child, despite their 
disability, would have the opportunity to have an appropriate 
education. Neil Gorsuch managed to reduce that down to mere improvement 
over de minimus; that is, basically a tiny little bit of improvement 
over doing nothing. That was the Neil Gorsuch standard.
  That standard went to the Supreme Court. The Supreme Court just 
recently issued its decision, and it was not a confirmation that it is 
OK to have just a mere improvement over doing nothing, it was a 
wholesale rejection, because the law is very clear, and Neil Gorsuch 
tormented it and twisted it and tortured it to produce a position that 
you can do nothing and meet the standard of the law that says you have 
to do quite a bit.
  So it was 8 to 0. It was not six out of eight or seven out of eight, 
but eight out of eight. Every Justice, no matter where they were in the 
ideological spectrum, said: That is an absurd finding and overthrew the 
Neil Gorsuch decision.
  (Mr. BARRASSO assumed the Chair.)
  So we have these three substantial, major issues to consider, and 
that is why this conversation should be set aside until we resolve the 
Russia investigation.
  I will read ``The Guardian view of Trump's Russia links.'' It says:

       Why days before the presidential election did the FBI 
     announce it was reopening an investigation into Hillary 
     Clinton--when it was silent about its probe into Mr. Trump's 
     Russia ties?
       When the president's own staff turn up in Washington to 
     publicly rebut his accusations that he had been wiretapped by 
     his predecessor, it's not good news for the White House. Yet 
     the longer the director of the Federal Bureau of 
     Investigation, James Comey, and Mike Rogers of the National 
     Security Agency appeared in front of a committee of Congress, 
     the worse it got. Since last July, Mr. Comey said, the 
     president's campaign has been investigated for colluding with 
     Russia to influence the 2016 election. Donald Trump's 
     election machine is coating his White House with sewage.
       Yet Donald Trump, with the insouciance of a Bourbon 
     monarch, shows no sign of taking any notice of the facts. 
     Nor, it seems, will he retract false claims, nor will he be 
     held accountable for his dissembling. Mr. Trump is prepared 
     to carry on in disgrace. He spent the minutes after his own 
     intelligence officers called him out for peddling falsehoods 
     by trying to create a bizarre counter narrative with the 
     @POTUS twitter account that stretched his credibility so far 
     it snapped.

  Well, this article continues to go into how just an amazingly absurd 
situation this is at this moment.
  I was really struck that what seemed to have transpired just a few 
days ago was that the White House, some key advisers in the White 
House, some very top advisers, called up the chair of the House 
Intelligence Committee and said: Hey, come over here to the White 
House. We want to brief you on some information that shows that maybe 
there was some intelligence picked up on Trump in the course of other 
intelligence activities.
  So the chair goes over to the White House, gets briefed, comes back 
to the House, holds a press conference, and says that he has this 
information from a whistleblower, and he has to go back over to the 
White House to brief the President.
  The whole thing was phony. The information came from the White House. 
The whole thing was set up to look as though there was some magnificent 
new information that somehow confirmed some theme or line the President 
was advocating. I mean, this was Keystone Cops. That is the place we 
have come to in this administration. So those are certainly the 
concerns that I have.
  I think it is important to continue focusing on the Gorsuch 
nomination. Let us recognize the setting in which this is happening.
  Certainly we have a nominee who seems to want a 19th century judicial 
philosophy for the 21st century. The preamble to our Constitution 
states: ``We the People of the United States, in Order to form a more 
perfect Union, establish Justice.'' That is a vision that reminds us 
that we are a nation of laws, where individuals like the frozen trucker 
can go to the authorities and get a fair, square deal, a deal that 
reflects the fact he was unfairly fired, but he didn't get that from 
Neil Gorsuch. The type of system where an autistic child who, under the 
law, is supposed to be receiving an appropriate education receives that 
education, but he didn't get that fair square justice from Neil 
Gorsuch.
  We are a nation of laws, but we are also a nation of justice, and it 
sets us apart from so many other countries--that concept that average 
citizens, ordinary people have a way to pursue justice.
  During his confirmation hearing last month, Judge Gorsuch put on a 
great show, kind of a friendly, everyday-man show, but when it came to 
making decisions, the ordinary person lost out on these decisions time 
after time after time.
  We have a far right, extremist judge outside of the mainstream who, 
in case after case, has twisted the laws to deny average Americans the 
justice they deserve. He is so far out of the mainstream that he would 
be the most conservative Justice on the Supreme Court--further to the 
right than Justice Antonin Scalia or Justice Clarence Thomas, according 
to an independent analysis by the Washington Post. The Post came to 
this conclusion by examining the Tenth Circuit's opinions that have 
been delivered since Gorsuch joined the Court in 2006. The Post 
concludes:

       The magnitude of the gap between Gorsuch and Thomas is 
     roughly the same as the gap between Justice Sotomayor and 
     Justice Kennedy during the same time period. In fact, our 
     results suggest that Gorsuch and Justice Scalia would be as 
     far apart as Justices Breyer and Chief Justice Roberts.

  We can see this extremism by examining some of Judge Gorsuch's 
significant cases.
  Earlier, my colleague from Illinois came in and spoke about the 
frozen trucker case. Alphonse Maddin was a truckdriver who was 
transporting cargo through Illinois when the brakes on his trailer 
froze because of subzero temperatures, and he did the responsible 
thing. He got off the road. He pulled over. He refused to drive under 
hazardous conditions, and he called for help.
  After reporting the problem to the company, he waited 3 hours in 
freezing temperatures for a repair truck to arrive. He couldn't even 
wait in the cab of his truck to keep warm because the auxiliary power 
unit was not working. After those 3 hours, his torso went numb, and he 
began having difficulty breathing. He couldn't feel his feet. So he 
unhitched the truck--that is the trailer, the loaded trailer, and left 
it there. He drove the cab, seeking to find a place he could get warm, 
and then he returned to the truck when the repairman was arriving.

  The law is specifically written to say that you can't fire a 
truckdriver for refusing to operate a truck in a fashion that will 
cause dangers to others. And that is what he did; he refused to keep 
driving with those frozen brakes in order to avoid causing danger to 
others.

[[Page S2290]]

  Neil Gorsuch looked for a way to twist that, to say: Well, he didn't 
refuse to operate the truck. He drove the cab, and that is kind of like 
operating the truck.
  Well, I would tell Neil: It is not. Operating a cab unhitched from a 
trailer is not the same as operating a truck with the trailer. The 
purpose of the driver is to deliver the goods.
  So, quite frankly, he did exactly what he should have done for his 
personal safety and the safety of others. He was fired for it, which is 
what the law is written to stop. Everyone else got this, but not Neil 
Gorsuch.
  Neil Gorsuch looked for a strategy that he could possibly find to 
favor a company over an individual, and that is really of great 
concern.
  In his dissent--Neil Gorsuch was not in the majority. He wasn't 
making the decision. He wasn't writing the majority opinion. He had a 
dissent.
  He strained the reading of the statute. He went out of his way to 
minimize the words ``health and safety'' in the law. He stated that 
finding for the driver was improperly using the law ``as a sort of 
springboard to combat all perceived evils lurking in the neighborhood'' 
and that the objective to promote health and safety was ``ephemeral and 
generic.''
  Well, clearly the finding that a trucker who was fired because he 
refused to operate the truck--the cab and the trailer--in unsafe 
conditions because the brakes were frozen, when the law says you can't 
fire a trucker for refusing to operate a truck in unsafe conditions--
that is about not providing a very specific danger to the community.
  How do you get from that to say that finding for the driver was a 
framework ``to combat all perceived evils lurking in the 
neighborhood''? As if somehow deciding the case on the pure merits and 
the pure law, finding a case on behalf of an individual was somehow 
opening a Pandora's box of bad decisions that would affect other 
situations where maybe corporations that made a mistake would have to 
pay a fine. That would be unacceptable.
  I don't know what he meant by ``a sort of springboard to combat all 
perceived evils,'' but I know it is totally disconnected from the pure 
facts of the frozen trucker case and the law that guided it, and that 
is why the court found in the trucker's favor.
  In short, in reaching his conclusion, Judge Gorsuch took an extremely 
narrow view of the statute, remarking that it only forbids them from 
firing employees who refuse to operate a vehicle out of safety. That is 
exactly, of course, why he did it.
  I think that all along that case, you saw common sense, a clear view 
of the facts, and a clear view of the law on everyone's behalf, except 
for one individual, and that individual was Neil Gorsuch, who is before 
us.
  Let's turn to the case of the autistic child. Luke P, a young child 
with autism, began receiving special education services at his public 
school in kindergarten in 2000. He had an education plan specific to 
his needs, as required by the Individuals with Disabilities Education 
Act, the IDEA.
  The problem was that he wasn't making progress in generalizing 
skills, applying skills he learned at school to other environments. 
Despite his appropriate social interactions at school, he often had 
severe behavioral problems at home and public places, including 
violence. The public school's inability to meaningfully improve Luke's 
ability to generalize basic life skills put enormous stress on the 
family and exposed the limitations of what the school was able to 
provide.
  His parents found a program designed for children with this form of 
autism, a place that specialized in that, a place that knew how to 
approach it. They worked at getting him admitted, and they succeeded. 
It was a great opportunity for Luke to not only learn important life 
skills but to be able to apply them outside the classroom. Luke got in, 
and he began to flourish, getting the attention and specialized 
instruction that his condition merited.
  So Luke's parents, knowing that the IDEA requires that children with 
disabilities are entitled to a free education, applied to the school 
district for reimbursement of the new school's tuition, but the school 
district said they wouldn't fund that because they could meet the goals 
of Luke's updated education plan. But the problem was, they couldn't. 
That experience had already occurred, and the district had fallen 
short.
  At the due process hearing, the State level hearing, Luke's parents 
prevailed. They laid out their case. The hearing compared the situation 
to the law and the requirements in the law, and Luke's parents won.
  It went up to the Federal district court. Again, looking at the case, 
looking at the law, the parents prevailed. At each level, a hearing 
officer judge determined that Luke wasn't getting the help he needed at 
the public school. They concluded that, by failing to help him 
generalize his skills, they failed to provide him with the free 
appropriate education he was entitled to under the law.
  Each looked at the facts and said: Only the specialized residential 
school could provide the education he needed, and the school district 
must reimburse the family.
  Well, the school district appealed all the way up to the Tenth 
Circuit--Judge Gorsuch's Tenth Circuit. And what happened on the Tenth 
Circuit? Well, writing the opinion for the majority, Judge Gorsuch 
stated that ``the educational benefit mandated by IDEA must merely be 
more than de minimis.'' A way to translate that, ``merely more than de 
minimis'' means a tiny bit more than nothing. That is the standard. 
That is the Gorsuch standard. In effect, Judge Gorsuch argued that you 
meet the law designed to insist that disabled children get an 
appropriate education with a little bit more than nothing.
  Well, this was then appealed up to the Supreme Court, and what 
happened here just days ago? On March 22, Judge Gorsuch's ruling was 
overturned by the eight members of the Supreme Court. It wasn't a 5-to-
3 or 6-to-2 or 7-to-1 decision; it was 8 to 0.
  They felt that the standard Gorsuch put forward was totally 
incompatible with the way the law was written. That is a very telling 
situation to have eight Justices, through a large spectrum, see that 
the world is quite different from the world of Neil Gorsuch, where the 
law gets twisted to find for the powerful over the individual.
  Judge Gorsuch's ruling was overturned through a unanimous vote in the 
case of Endrew F. v. Douglas County School District during the final 
days of Judge Gorsuch's confirmation hearings, March 22. In that case, 
another autistic child, who also has attention deficit disorder, had 
been removed from public school since the fifth grade. Like Luke, he 
went on to make great progress in a private school. His parents said 
the education plan that the public school created was not helping, and 
they sued the school district to compel them to pay for the private 
tuition. It was basically a mirror example of Luke's case.
  In speaking for the Court, Chief Justice John Roberts said that Judge 
Gorsuch's de minimis standard was too low and that the Federal law 
demands more, that it requires an educational program that is 
reasonably calculated to enable a child to make progress appropriate in 
light of the child's circumstances.
  Chief Justice John Roberts went on to say in his majority opinion 
that it cannot be right that the IDEA generally contemplates grade 
level advancement for children with disabilities who are fully 
integrated into the regular classroom but is satisfied with merely more 
than de minimis progress.
  No. The IDEA contemplates grade level advancement, and it cannot be 
squared with the standard that Neil Gorsuch put forward in his saying 
``merely more than de minimis.''
  Speaking in front of the Court, the Solicitor General specifically 
noted that Judge Gorsuch's interpretation of the IDEA's requirement is 
not consistent with IDEA's text or structure with this Court's analysis 
or with Congress's stated purposes. Basically, that is the outline of 
the autistic child's case.
  Let's turn to the Utah en banc request, the Planned Parenthood 
Association of Utah v. Herbert.
  In August of 2015, Gary Herbert, Utah's Republican Governor, ordered 
the State to strip $272,000 in Federal funding from the Planned 
Parenthood Association of Utah in response to a series of hidden camera 
videos that were released by the Center for Medical Progress. They were 
attacking Planned

[[Page S2291]]

Parenthood's program for providing fetal research tissue to research 
institutions. These videos were found to have been doctored and the 
footage was inaccurate. The entire premise was debunked.
  Despite the fact that the videos had no merit, Governor Herbert stood 
by his order to cut Planned Parenthood's funding. Utah's Planned 
Parenthood Association decided to fight back by filing for and 
temporarily receiving a restraining order against the State.
  In spite of his continued claim--that is, the Governor's claim--that 
stripping funding was not to punish the organization for its stance on 
abortion but was in response to the videos, Governor Herbert eventually 
admitted, while responding to Planned Parenthood's motion for a 
preliminary injunction, that the events in the videos involved other 
Planned Parenthood affiliates in other States, not Planned Parenthood 
in Utah. There was not even an accusation that Planned Parenthood in 
Utah had strayed beyond the law.
  The organization in Utah does not participate in that research 
program that was attacked in that video. There was no connection--not 
geographically to Utah and not through the substance issue of a tissue 
research program. None of the Federal funds that go through the State's 
health department to Planned Parenthood fund abortions, which is an 
important point.
  Let me reemphasize that the accusations made by the videos about 
Planned Parenthood and its affiliates were false.
  What the Governor's response has made clear is that he was, in fact, 
punishing Planned Parenthood of Utah for its constitutionally protected 
advocacy and its services that include abortion. That is a very, very 
small part of what it does.
  A three-judge panel on the Tenth Circuit Court of Appeals granted a 
preliminary injunction to Planned Parenthood, concluding that Utah's 
Planned Parenthood was operating lawfully and that the Governor's 
personal opposition to abortion could likely be demonstrated as a 
motivation for blocking Federal funds. Therefore, the Governor was 
targeting a health organization, in violation of its constitutional 
rights.
  We have these basic concepts, like equality under the law. You cannot 
just choose and pick, basically, whom you like and dislike.
  Here is what happened. In spite of that Tenth Circuit's finding of 
those three judges, who all found on the side of Planned Parenthood, 
Judge Gorsuch dissented from the court's denial and requested that it 
be considered en banc--that is, by the entire Tenth Circuit set of 
judges. This is very unusual because the Governor who lost the case was 
not asking for it to be reconsidered, and Planned Parenthood was not 
asking for it to be reconsidered. It was a done deal. The arguments 
that the Governor had brought basically fell apart upon examination--
each and every argument. Planned Parenthood of Utah was not in the 
videos. The videos themselves were edited to create a false story. They 
did not even participate in the same research program and so forth--I 
mean, every piece of it. Yet Judge Gorsuch said: No, we should have the 
entire group of judges reconsider this--a judge pushing this forward 
when the defendant did not even push it forward. He was willing to 
ignore court practice and custom, to mischaracterize facts in law to 
ensure that Utah's Republican Governor could eliminate funding for 
Planned Parenthood.

  He made a reference to kind of the deference to elected opinion. 
That, in itself, is very strange. Isn't your job to find out whether 
the circumstances fit the law and, if someone has been shortchanged, to 
rule for him and not to defer to someone because he has the title of 
``Governor'' before his name?
  In the majority's opinion, Judge Mary Briscoe wrote separately to 
highlight the troubling nature of Judge Gorsuch's dissent. She noted 
first how unusual and extraordinary it would be for the Tenth Circuit 
to have one of its own make a motion for an en banc review when neither 
party to the litigation sought such a review. Second, Judge Briscoe 
emphasized that Judge Gorsuch repeatedly mischaracterized this 
litigation and the panel at several turns.
  Another judge in the majority pointed out that none of the parties 
asked for a rehearing within the time permitted and that there was no 
justification for polling the court on that question at all. 
Apparently, an unidentified judge had requested that the judges be 
polled.
  So we have here--as we have in the case of the autistic child, as we 
have in the case of the frozen trucker--another case of twisting the 
law to try to come out with an outcome that is not merited by the facts 
of the case or the plain language of the law. That really is a 
significant concern.
  Judge Gorsuch has been a lifelong ideological warrior. The quote from 
Henry Kissinger that he used in both his high school and Columbia 
yearbooks might have been intended as joke, but it warrants some 
consideration in light of his record:

       The illegal we do immediately. The unconstitutional takes a 
     little longer.

  In light of these cases, where in case after case he stretched the 
law, tortured the law, twisted the law to find for the powerful--the 
Constitution has a vision of equality before the law. Our Constitution 
has this vision of justice for all so that when a judge does not pursue 
equality before the law, does not pursue justice for all, then that 
really is kind of a venture into the unconstitutional. That is exactly 
what happened in the case of the autistic child, where the Court said: 
Your decision was unconstitutional. Your decision to say that a little 
bit more than nothing meets the standard of the IDEA is wrong. That is 
unconstitutional. That is wrong for the law.
  Indeed, it almost makes the hair on your neck stand to realize that 
he was writing that the unconstitutional takes a little longer.
  His world view really began to take shape at Columbia when he 
cofounded the Federalist, which was the school newspaper, and a 
magazine called the Morningside Review. In writing for the 
publications, Judge Gorsuch defended social inequality, saying it 
allows men of different abilities and talents to distinguish 
themselves, as they wish, without devaluing their innate human worth as 
members of society and arguing that a responsible system requires a 
governing class that is comprised of men of exceptional political 
ability and spirit of concern who craft laws and run the government.
  When I read this, it made me think of Plato's ``Republic.'' In 
Plato's ``Republic,'' he lays out a vision of the guardians, kind of 
this superior group of men who find just the right solutions. It sure 
sounds like that--a responsible system that requires a governing class 
that is comprised of men of exceptional political ability, spirit, and 
concern, who craft the laws and run the government--in other words, a 
government by the elite. Through his decisions, we see that it is not 
just by the elite and by the powerful, it is for the elite and for the 
powerful. That is a long way from equality under the law, and that is a 
long ways from justice for all. And he characterized efforts to fight 
racism as ``more demand for the overthrow of American society than the 
forum for the peaceable and rational discussion of these people and 
events.''

  We have a substantial amount of racism still embedded in our Nation, 
and we see it come out in unexpected ways. The first I was really aware 
of the racism that we have in our society was when I was a 19-year-old 
and I was an intern for Senator Hatfield here. I was assigned to open 
all of the letters each morning because I was the last of the three 
summer interns to arrive, and that job went to the last person. I 
started opening these letters, and the job was to sort them, to get 
them into different piles according to topic for the different 
corresponding legislative correspondents who would then write replies. 
But as I read the letters, I would read one letter and there would be 
an attack on Seventh Day Adventists. In another there would be an 
attack on African Americans. In another, there was an attack on 
immigrants, and so on and so forth. There were attacks on Mormons. 
There were attacks on every possible group.
  It made me think about how Oregon was at one time a territory that 
excluded African Americans, and at a later date it came to have the 
largest Ku Klux Klan in the Nation--Oregon. You wouldn't imagine that. 
I saw no signs of this racism growing up in the suburbs of Portland or 
down in

[[Page S2292]]

Roseburg, but these letters that people were writing were full of 
racism.
  We can't simply pretend that it doesn't exist. Over the course of 
this last year, we have seen this time and again. We have seen groups 
that kind of are still deeply wedded to racism and discrimination, and 
they have kind of come out and made themselves more publicly available. 
They have kind of shared their thoughts more readily, and they have 
engaged in more racist acts against others.
  So we have more people who have been attacked in parking lots because 
of their race, or we have more situations where graffiti has been 
scrolled on the side of buildings. We have mosques that have been 
burned. We have synagogues that have been defiled. We have individuals 
who look to be Middle Eastern being attacked because they are looking 
like they are Middle Eastern.
  So, clearly, as to racism, we are not discussing this challenge in 
America, pondering how we come to a full respect for each and every 
individual in our country. That cannot be characterized as a demand for 
the overthrow of American society, unless your concept of American 
society is one that is a White supremacist viewpoint, and then respect 
for everyone else perhaps is an overthrow of society.
  Now, I am not saying that Neil Gorsuch was coming from that 
particular viewpoint, but he certainly shows in his quote that he has 
great difficulty considering a conversation about racism to be a 
legitimate and important conversation for making America a better 
place, embracing the strengths of all of our citizens who come from 
diverse backgrounds. It can't be that this is ``more demand for the 
overthrow of American society than a forum for rational discussion of 
these people and events.'' It is a discussion that we need to have.
  Judge Gorsuch is absolutely coming into the Court with a view of 
expansive rights for corporations.
  For a long time in our Nation's history, our biggest businesses and 
corporations certainly ruled the roost, and we had the barons who came 
from Big Oil and Big Railroad and Big Copper, and their wealth and 
their station in life ensured that they really had a lot of power over 
the people around them. Over time, we gave and developed standards so 
that people couldn't be exploited to the extent that they were 
exploited under these barons. We had developed labor and safety 
standards, and we had developed minimum wages and 40-hour workweeks and 
overtime--really quite an amazing transformation of the workplace. We 
made great strides in the course of the 20th century. We recognized 
that American workers are entitled to be treated with respect in a safe 
working environment.
  But there are other cases other than the frozen trucker case where 
Judge Gorsuch has put the interest of the company or the corporation 
above the safety of the American worker. One of those is the case of 
the electrocuted construction worker, the mining construction worker.
  Encompass Environmental. The Occupational Safety and Health Review 
Commission fined employer Encompass Environmental because the company 
failed to properly train Chris Carter, a worker who was electrocuted. 
He did not recover. He died.
  Chris joined the construction project a week after it had begun. 
Because he was not trained in that specific work, he brought a piece of 
equipment in contact with an overhead line. This was specifically 
something the company had trained others to avoid, but he wasn't 
trained in it, and the result is he died.
  The Tenth Circuit on which Neil Gorsuch serves upheld the fine 
against the company for the failure to train, saying that it was 
``undisputed that Encompass did not give this employee any instruction 
on the fatal danger posed by the high voltage lines located in the 
vicinity of the work area.''

  The company's own job hazard announcements found a fatal danger from 
the high-voltage power lines involved and recommended training for 
employees that would instruct them to keep at least 20 feet away from 
those power lines. A lot of the employees got that training, but Chris 
Carter didn't, and he died.
  While all of the Tenth Circuit upheld the fine against the company, 
Judge Gorsuch dissented. He said that, as to the Occupational Safety 
and Health Review Commission, which fined the employer, that fine was 
yet another example of an administrative agency wielding remarkable 
powers and penalizing a company where no evidence existed. If it had 
been up to Neil Gorsuch, Encompass Environmental would not have had to 
pay this fine. It would never have been accountable for the negligence 
that ended in this tragic, unnecessary death.
  It is striking to me that despite the fact that the company itself 
knew about this hazard, and the company itself trained other employees 
to avoid the hazard but failed to provide the training in this case, 
Neil Gorsuch really somehow believes that there was no error made by 
the company; that, somehow, it is unfair if you are penalizing the 
company.
  The ultimate example of Gorsuch's efforts to expand the rights of 
corporations came in the Hobby Lobby case, which held that corporations 
are persons exercising religion under the purposes of the Religious 
Freedom Restoration Act. Therefore, according to the ruling, closely 
held, for-profit secular corporations could deny their female employees 
the legal right to contraceptive coverage as part of their employer-
sponsored health insurance plans.
  The Tenth Circuit upheld this position, but that wasn't enough. In a 
separate opinion he couched this expansion of corporate rights in a 
blanket of religious freedom writing:

       All of us face the problem of complicity. All of us must 
     answer for ourselves whether and to what degree we are 
     willing to be involved in the wrongdoing of others. For some, 
     religion provides an essential source of guidance both about 
     what constitutes wrongful conduct and the degree to which 
     those who assist others to commit wrongful conduct themselves 
     bear moral culpability.

  What that case really amounted to was saying that religious 
preferences of the employer--a corporation--trumped the religious 
choices of the employees--the individuals. That is the scary thing 
about Hobby Lobby--giving corporations expansive control while you 
diminish the realm of private rights.
  The Hobby Lobby decision has already been invoked--not only 
supporting curtailing employees' access to reproductive healthcare but 
also to justify noncompliance with child labor laws, anti-kidnapping 
laws, and anti-discrimination laws.
  As a lawyer, Neil Gorsuch wrote a brief in Dura Pharmaceuticals v. 
Broudo, urging the Court to ignore the statutory legislative history of 
the Securities and Exchange Act and advocating that the Court limit the 
availability of those who confronted the corporation to band together 
to seek redress.
  In a 2005 article, Gorsuch launched into an attack on plaintiffs' 
lawyers for such cases. The lawyers were just looking for a free ride 
to vast riches, he concluded. They involved frivolous claims, taking an 
enormous toll on the economy and on virtually every corporation in 
America at one time or another, costing businesses billions of dollars 
in settlements.
  So Neil Gorsuch has taken positions making it more difficult for 
class action lawsuits to proceed.
  Well, what is a class action lawsuit and why is it so important in 
our system to have class action lawsuits? Imagine that you are in a 
situation where, for example, maybe a telecommunications company gets 
involved in slamming charges onto your bill that you never asked for, 
and maybe that costs you $10 a month for some service put on your long-
distance bill or on your cable bill or on your worldwide net band bill, 
and you proceed to notice this, but they put this on without you 
authorizing it. Yet it is $10. You can't possibly afford to go to court 
to take on this predatory conduct of charging you for something you 
never ordered, but when you realize there are often tens of thousands 
of other people who have also been the victims of this illegal 
predatory action, then a class action lawsuit gives you the ability to 
band with those other folks to take on that predatory conduct by the 
corporation, and that helps to dissuade a corporation from being 
involved in predatory conduct to begin with.
  This can be involved in all sorts of things. It could be 
misrepresenting a product that is being sold, a physical

[[Page S2293]]

product, or not warning about its having a danger that any rational 
person should have warned you about, or misrepresenting stocks in some 
type of a scheme where thousands of people are sold something, but what 
they buy is not what they were promised, and so forth.
  So class action is a powerful tool for justice, but you see in case 
after case after case, complete disdain by Neil Gorsuch for class 
action lawsuits. He sees them as a burden on the corporate enterprise 
of America.
  Well, I believe that it is important to stop illegal predatory 
conduct, and in cases where you can't possibly afford to go as an 
individual, class action is an important strategy.
  In one case, Shook v. The Board of County Commissioners, he prevented 
a group of inmates with mental illnesses who were not receiving proper 
care from joining together to request that the jail meet its 
constitutional obligation to provide medical care. Shook may not have 
involved a corporation, but the same legal reasoning Judge Gorsuch 
applied in that case can be used to limit class action lawsuits brought 
against companies and against corporations. There were a number of 
other cases in that category, and there are cases that essentially 
highlight issues of discrimination and sexual harassment and Judge 
Gorsuch's views on that.
  In Pinkerton v. Colorado Department of Transportation, Judge Gorsuch 
joined an opinion discounting Pinkerton's evidence of discrimination 
and concluding that her performance, not discrimination, resulted in 
her termination.
  Betty Pinkerton was an administrative assistant. She alleged that her 
supervisor had made inappropriate, sexually explicit remarks to her 
over a period of several months and that she was fired when she 
reported the harassment. Pinkerton specifically alleged that her 
supervisor asked her whether she had sexual urges and asked about the 
size of things that a boss should not ask about, and he actually 
commented on a whole series of things which I don't think I will read 
into the Record but which were totally inappropriate in a workplace 
setting.
  After her supervisor asked to go to her house for lunch, Pinkerton 
called the internal civil rights administrator and complained and then 
made a formal written complaint 7 days later. An investigation that 
followed led to the supervisor's removal, but shortly after the 
supervisor was fired, Pinkerton was also fired. She sued, claiming that 
the department of transportation was liable for the hostile work 
environment imposed by the supervisor and that she had been fired 
because she had raised this issue and this conduct.
  There was a divided panel that affirmed a summary judgment in favor 
of the Colorado Department of Transportation, which held that Pinkerton 
had waited too long--2 months--to report the harassment, and Judge 
Gorsuch found with the majority.
  Judge Paul Kelly's majority opinion concluded it was Pinkerton's 
performance, not discrimination, that resulted in her termination, but 
the dissenting opinion said that it should be a jury who decides at 
what point Pinkerton's failure to report the harassment becomes 
unreasonable, that the termination just days after the investigation 
was completed raised a genuine issue of fact about her claim of 
retaliatory discharge, especially considering that the State department 
of transportation testified that the most serious error leading to 
Pinkerton's firing was an allegedly mishandled call from an employee's 
daughter that happened 4 years earlier, and the director tried to get 
Pinkerton another job with the State department of transportation only 
months before she was fired. But Judge Gorsuch joined the majority and 
did not give Betty Pinkerton the chance to confront her employers in a 
court of law in front of a jury. In other words, she wanted her day in 
court to make the case.
  The minority in that case said: Yes, she should get her opportunity 
to make her case. There is enough evidence, and it should be presented. 
She can make her case and the department can make their case--not to 
preempt the opportunity for her to have her day in court. But that is 
where Judge Gorsuch ended up.
  Then there is Strickland v. United Parcel Service, UPS. In this case, 
Judge Gorsuch concurred in part, while also dissenting in part from an 
opinion holding that Strickland provided ample evidence that she was 
regularly outperforming her male colleagues, and yet she was treated 
less favorably than they were.
  Carole Strickland was a female driver for UPS who alleged sex 
discrimination and quit under pressure. Two judges on the Tenth Circuit 
panel overturned a lower court decision granting UPS judgment as a 
matter of law. In doing so, they emphasized that Strickland provided 
ample evidence that she was regularly outperforming her male 
colleagues, and yet she was treated less favorably, including direct 
testimony of several of her coworkers that she was treated poorly or 
worse than others.
  Strickland's coworkers testified that supervisors treated her 
differently from her male colleagues. She met 93 percent to 104 percent 
of her sales quotas, was outperforming some of her coworkers on every 
measure, and yet she was singled out to attend individual meetings--the 
only one who had to make written sales commitments even though no one 
was at the 100-percent quota level.
  One of the men in her office had lower performance than Strickland in 
almost every sales measure but was not required to attend these 
meetings to discuss work performance and was not counseled on failing 
to reach 100 percent.
  Judge Gorsuch, unlike his two colleagues, dissented from the 
decision. He would have decided the case could not have gone to a jury, 
arguing that a reasonable juror could have found that Strickland was a 
victim of sex discrimination. He himself decided the essence of the 
case rather than giving her an opportunity to have her day in court, in 
spite of the substantial evidence she brought forward. He would have 
denied an employee the opportunity to hold a corporation accountable 
for their mistreatment.
  We see the theme in these cases, one after the other. When fellow 
judges found that a person had a reasonable right to make their case, 
he dissented and worked to block a chance for an individual to have 
their case heard.
  There is a list of cases we have been going through, but I want to go 
back and recap why we are here in the Senate hearing this nomination 
and deciding whether to confirm this individual, Neil Gorsuch. This 
story is one that really begins with the death of Antonin Scalia.
  Antonin Scalia died in February of last year. Within hours, the 
majority leader had decided to pursue a strategy of asking the Senate--
really, demanding the Senate--ensuring that the Senate not fulfill its 
constitutional advice and consent responsibility. If only at that 
moment my colleague the majority leader had thought: This is a big 
deal. Asking the Senate to not exercise its advice and consent 
responsibility--that is a big deal. Maybe I should wait a day and think 
about this.
  But no, there was a rush to the floor to lay this out, and that 
became the path this body has been on ever since.
  A month later, in March, the President did his job under the 
Constitution: He nominated Merrick Garland, and it was forwarded over 
here to the Senate. The normal thing would be for the Senate to start 
hearings, but the Republican majority leadership said: No. No hearings 
in the Judiciary Committee.
  Why not? It is our responsibility to provide advise and consent on 
nominations, and there is no nomination more important than the 
nomination to the Supreme Court of the United States of America. It 
isn't someone who just serves for a couple of years in the 
administration or maybe for a full 4 years of the administration; it is 
somebody who serves for life. And it is not someone like a district 
judge or a circuit judge who can write an opinion but then have it 
overturned at a higher level; the Supreme Court is the higher level. It 
is the highest level. The buck stops with the Supreme Court.
  Given the lifetime appointment and enormous power to set precedent 
for what the meaning of our Constitution is makes the Supreme Court 
nomination fantastically important. So it is shocking that we failed to 
do our job as a Senate--to hold hearings, to hold a vote, and to send 
the issue to the floor and hold a debate on Merrick Garland.
  Some Members said: This is in keeping with tradition for an election 
year.

[[Page S2294]]

  Well, no, it is not in keeping with tradition. We have had 16 
nominations during an election year. A few of them came after the 
election. Yet there was still a nomination, and the Senate still acted. 
On others, the vacancy occurred before the election, and the President 
chose not to fill or not to produce a nominee until after an election, 
and still the Senate said there is time to act. In nine other cases, 
the vacancy came before the election, the nomination came before the 
election, and in eight of those nine, the Senate acted. In 15 cases out 
of 15 cases before Antonin Scalia died, the Senate acted--confirming 
most, rejecting a few, but they acted. They exercised advice and 
consent. Then last year the Senate failed for the first time--the first 
time in U.S. history--to act.
  We can think of this as a kind of lengthy, lengthy filibuster of a 
Supreme Court nominee. Some of my colleagues have said: It doesn't seem 
right that a minority--41 Senators--can stop us from getting to a final 
vote. But it is right. It is a tradition that a 60-vote standard to 
approve a nominee to the Supreme Court is essential to make sure that a 
nominee has bipartisan support, that they are from the judicial 
mainstream, that they have judicial temperament, and that they fit this 
very important role, this task which they are going to be assigned to 
do and which they might do for many, many decades to come. That is why 
we have a 60-vote standard.
  What happened last year was a complete refusal to act and 290-plus 
days of failure to act--plenty of time to act to fulfill our 
responsibility. It would be different and we would be having a 
different discussion today if the Senate had considered the nominee and 
rejected the nominee.
  So why didn't the majority leader simply say: We don't like this 
nominee, so we are going to probably have a debate and we are probably 
going to vote the nominee down. The reason why is everyone loved 
Merrick Garland. He was right down the middle. He had great quotes of 
support from both sides of the aisle. He didn't have a history like the 
history I am describing with Neil Gorsuch, which raised eyebrows time 
and time again, or where he was kind of legislating from the bench. He 
didn't do that the way Neil Gorsuch has done.
  So that is the big issue, that we have a strategy of stealing a 
Supreme Court seat in order to pack the Court. It has never been done 
before, and we are in the middle of it now. And if this week goes as 
the majority leader said he was going to make sure that it went, then 
the theft is going to be completed by Friday.

  So I have been here through the night talking about this, to say how 
important this is that we not do this--that to proceed to fill this 
stolen seat will damage the Court for decades to come and will damage 
the Senate for decades to come. If you can steal one seat and get away 
with it, the temptation next time is to steal another seat--either to 
double down on the strategy or rebalance the first crime against the 
Constitution. And each and every time, it will deepen the divisions, 
and it will diminish the legitimacy of the Court. In the 5-to-4 
decisions that we see in the future from the Supreme Court, we are 
looking to say every single time that it is Justice Merrick Garland's 
stolen seat--President Obama's stolen seat. Every time that person is 
in the positive side--the winning side of a 5-to-4 decision--the Court 
would decide it differently if the seat weren't stolen, if the Court 
weren't packed. That decision doesn't really have legitimacy because it 
was the result of court-packing. That is not the way we want to be 
viewing the Supreme Court.
  We want to have a Court of wise, thoughtful individuals with great 
depth and knowledge of the law, combined with a terrific diversity of 
life experience. They can put themselves into the position and identify 
with the challenges faced in an authentic manner. That is important. 
That strengthens the Court. But it weakens the Court to have a Court 
packed as a crass, political tactic and to do it through a stolen seat.
  So that is why it matters--that it hurts the integrity of this body 
and it hurts the integrity of the Court. It involves the participation 
of the President because the President provided a nomination, and that 
hurts the integrity of the executive branch. In other words, it is a 
lose-lose-lose proposition. There is still time to take this train off 
the tracks and not result in this very unfortunate potential outcome.
  The second reason we are at this point is that this nomination is 
just being rushed through as quickly as possible--brought to the floor 
immediately after the committee vote. Then, for the first time in U.S. 
history, not only was it brought to the floor the day after the 
committee vote, but it was brought to the floor and then immediately a 
petition was filed to close debate. For the first time in U.S. history, 
on the first day of debate on a Supreme Court nominee, that a petition 
was filed to close debate. That petition, under our rules, forces a 
vote on whether to close debate on Thursday, long before the Senate has 
had a full chance for everyone to make all of their points and 
thoughts.
  Mr. President, a point of Parliamentary inquiry----
  The PRESIDING OFFICER. The Senator will please state his inquiry.
  Mr. MERKLEY. What is the agreed-upon schedule to resume the normal 
activities of the floor?
  The PRESIDING OFFICER. The Senate has a previous order to stand 
adjourned when the Senator is finished speaking until 9:30 a.m.
  Mr. MERKLEY. I appreciate that clarification. I am going to make this 
comment now, in case I might forget later. I want to give special 
thanks to the team of individuals who make this body work in order to 
provide for the opportunity for extended debate, sometimes here under 
extraordinary circumstances. Because I have been here through the night 
speaking, one of those extraordinary circumstances was this night that 
has just passed. The stenographers, the Parliamentarians, the pages, 
our doorkeepers, our caucus staff, the bill clerks, and others who 
staff the desks in the offices in the Democratic and Republican 
cloakrooms--I am excited to see the set of smiles on the pages' faces. 
I don't know if the same pages were here all night or not. Well, they 
will hopefully really get a lot out of this opportunity to serve here. 
But thank you to all the staff members who have labored during the wee 
hours of the night and into this morning.
  I was summing up the issues that we labor under and noting a 
significant one is the stolen Supreme Court seat and the damage that 
completing that theft will do to our institutions. I have been going 
through a number of cases that are related to the far-right, anti-we-
the-people vision of Neil Gorsuch, from the frozen trucker case, to the 
autistic child case, to the worker suffering sexual discrimination or 
gender discrimination at work--all of these cases that have come 
forward.
  We have the third issue, of course, being that cloud that is hanging 
over the Presidency because of the investigations underway at this 
moment into the role the Trump campaign may have played in 
communicating with or collaborating with the Russians in their 
extensive strategy to interfere with our Presidential election. So 
there are a lot of concerns.
  This should be the last case where we are cutting short the debate by 
filing a petition to close debate on the opening day, but there it is--
another first, another degradation of the institution.
  Dahlia Lithwick wrote in November:

       We are already hearing from Republicans and Democrats in 
     leadership positions that it is incumbent upon Americans to 
     normalize and legitimize the new Trump presidency. We are 
     told to give him a chance, to reach across the aisle, and 
     that we must all work hard, in President Obama's formulation, 
     to make sure that Trump succeeds. But before you decide to 
     take Obama's advice, I would implore you to stand firm and 
     even angry on this one point at least: The current Supreme 
     Court vacancy is not Trump's to fill. This was President 
     Obama's vacancy and President Obama's nomination. Please 
     don't tacitly give up on it because it was stolen by 
     unprecedented obstruction and contempt. Instead, do to them 
     what they have done to us. Sometimes, when they go low, we 
     need to go lower, to protect the thing of great value.

  I don't love the way that is phrased, that is for sure. Because in my 
mind, the point here is to guard our institutions and make them work 
better. That is the high road. That is not going lower; that is going 
higher. We must strengthen and defend these institutions that are being 
torn asunder by this strategy of stealing a Senate seat.
  That is an article from the Slate.

[[Page S2295]]

  The Miami Herald says: ``Supreme Court Nominations Will Never Be the 
Same.''

       The story of the Supreme Court in 2016 can be summarized in 
     a statistic: It's been 311 days since Justice Antonin Scalia 
     died on February 13, and his seat remains unfilled. That is 
     not the longest Supreme Court vacancy in the modern era, but 
     it's about to enter second place--and it will become the 
     longest if Donald Trump's nominee isn't confirmed about the 
     end of March.
       This striking fact will be front and center when the 
     history of the court in 2016 is written, but what really 
     matters isn't the length of the vacancy. It's the election in 
     the middle of it. The Republican Senate changed the rules of 
     confirmation drastically by refusing even to consider Judge 
     Merrick Garland's nomination. And against the odds, it paid 
     off for them.

  It is interesting because we talk about the nuclear option of 
changing the rules, but in a very de facto matter, the nuclear option 
went off the day the majority leader came to the floor and said that we 
are going to conduct ourselves in a totally different way than the 
Senate's ever conducted itself. Unlike every other time in U.S. 
history, when there was a vacancy during election year and the Senate 
acted, we are not going to act. We are going to essentially engage in 
stonewalling the President's nominee--no hearing, no discussion. That 
was a nuclear option. So, certainly, I think that is a point well made 
by this article.

       The history of the confirmation process is central to the 
     history of the court. There have been some important 
     landmarks in the last century. Louis Brandeis was the first 
     justice to have a confirmation hearing. Felix Frankfurter was 
     the first justice who had to testify at his confirmation.
       More recently, the confirmation process for Robert Bork in 
     1987 had epochal consequences. For the first time, judicial 
     philosophy was a focus.

  That was 1987.

       No one disputed Bork's intelligence or qualifications. 
     Instead liberals, including law professors like my colleague 
     Laurence Tribe, criticized Bork's conservatism, as opposition 
     to fundamental rights.

  Well, there is a whole host of commentary from all across America. 
Let's turn to the Pittsburgh Post-Gazette. ``The Senate's shame: 
Merrick Garland deserved a hearing for Supreme Court.''

       Judge Merrick Garland is returning to his work on the Court 
     of Appeals for the D.C. Circuit, his nomination for the 
     Supreme Court killed without a vote by a Republican Senate 
     majority more concerned with partisan politics than with 
     doing its job.
       The behavior of those who disposed of his nomination stands 
     in sharp contrast to his own record and reputation as a 
     nonideological judge.
       Judge Garland is a moderate jurist with a reputation for 
     careful reasoning. Mere days before President Barack Obama 
     announced Merrick Garland's nomination, Senator Orrin Hatch, 
     a Republican from Utah, told a conservative news site that if 
     the President wanted to pick a moderate, he ``could easily 
     name Merrick Garland, who is a fine man.''
       But Senate Majority Leader Mitch McConnell had already 
     announced, in February, that his caucus would block any Obama 
     nominee. ``This vacancy,'' he said, ``should not be filled by 
     this lame-duck President.'' So the Senate refused even to 
     hold hearings.

  Let's be clear. We have had 16 vacancies in the course of an election 
year during our 200-plus years of history, and never before did a 
majority refuse to exercise their advice and consent responsibility 
under the Constitution, arguing that it is a lameduck President. That 
is not embedded in the Constitution. It is not embedded in the Senate 
rules. It is not embedded in history. It is not embedded in any logic. 
When you elect a President, you elect him for 4 years.
  Obama was elected, not by a small margin, not by an electoral victory 
combined with a citizen majority loss. No, he won the citizen vote 
massively, as well as winning the electoral college. He won it twice. 
You can't look for a better endorsement for the role of a President and 
an affirmation in the face of the determined effort to ensure he did 
not get a second term.
  So that lameduck argument is lame. The argument that the President 
was a lameduck so, therefore, his Supreme Court nominee should not get 
a hearing is disingenuous and irresponsible. Mr. Obama had a year left 
in his term, and Presidents have their full constitutional authority 
until noon on inauguration day. They must perform all of their duties 
until then.
  Granted, a President must nominate justices the Senate can reasonably 
be asked to confirm. You can't ask a Senate dominated by the other 
party to confirm someone whose judicial philosophy could appeal only to 
someone who shares the President's politics. He must, when facing such 
a Senate, choose someone in the middle. Mr. Obama did that. He did his 
job. He picked the very judge Senator Hatch said would be a moderate 
choice.
  The Senate did not do its job. Its refusal to confirm Judge Garland 
was not based on any flaw in the nominee's character, any deficit in 
his abilities, or even any disagreement with his jurisprudence. It was 
pure partisan politics. Senate Republicans wanted to let a Republican 
President fill the vacancy, and they are going to get their way. But 
this refusal of the Senate to do its duty cost a good man a fair 
hearing, and, more importantly, it cost the Nation a potentially fine 
justice, one more faithful to the law than one of the political parties 
or particular judicial ideology.
  As a result of this abdication of responsibility, it will be harder 
to get Justices like that in the future. Indeed, the Senate has 
established a terrible precedent that makes it less likely that any 
President will be get a Senate controlled by the other party to confirm 
his or her Supreme Court nominees, however wise and well-qualified.
  This was a study of Washington politics at its worst--political and 
constitutional malpractice--and it will have a lasting consequence.
  Well, there is still time to change course and not have this legacy, 
as characterized by the Pittsburgh Post-Gazette, of ``political and 
constitutional malpractice with lasting consequences''. So one question 
we have not talked about too much in this debate through the night is 
how voters view this GOP maneuvering to push through Trump's 
ultraconservative Supreme Court nominee. This is a national survey of 
likely voters by Greenberg Quinlan Rosner Research. It notes the 
following:

       In the wake of President Donald Trump's nomination of Neil 
     Gorsuch to the U.S. Supreme Court, a new national poll shows 
     that voters believe that the nomination has real consequences 
     for the direction of the country. Voters strongly oppose 
     efforts by the Republicans to change the rules in order to 
     push through Trump's ultraconservative nominee.

  Americans see this as a fight that matters to them. When presented 
with potential consequences and rulings that could result from 
Gorsuch's confirmation, including overturning Roe v. Wade and leaving 
the flow of special interest money in politics unchecked, large 
majorities of voters say they are more likely to oppose the nominee.
  Key findings from the poll conducted January 27 through 31 on behalf 
of NARAL Pro Choice America Foundation, Every Voice, and End Citizens 
United, include:

       Voters overwhelmingly believe that Trump's nomination will 
     have a real impact on the country's future. Fully 72 percent 
     of voters think the nomination will have a big difference in 
     the direction of the country. Voters across the political 
     spectrum agree on the importance of this nomination, with 76 
     percent of Democrats saying it will make a big difference, 
     along with 75 percent of Republicans and 64 percent of 
     Independents.

  So, in short, basically roughly three out of four Americans recognize 
that it is a very big deal because out of this discussion could come a 
confirmed nominee, a ninth vote on the Supreme Court, and that 5-to-4 
votes of the Supreme Court steer the country in very different 
directions, depending on how that 5-to-4 voting occurs.
  If you are adding to the Supreme Court spectrum of conservatives who 
have this view of Merrick Garland and antipathy toward the ability of 
citizens to pursue justice through class action lawsuits, and an effort 
to always kind of torture the law in order to find for corporations 
over the individuals, and a love of arbitration agreements, and even 
inventing them as we heard last night--inventing an arbitration 
agreement where none exists--in order to prevent an issue from going 
forward in the courts--all of that is a real handicap for Americans in 
the future. So Americans understand this is a big deal.

       Americans strongly object to any GOP attempts to use 
     political tactics to strong-arm Trump's nominee through the 
     confirmation process. After hearing balanced messaging, seven 
     in 10 (69 percent) oppose Republicans changing the rules to 
     prevent a filibuster and allow the Senate to confirm a 
     nominee with just a simple majority instead of the required 
     60 votes, with 54 percent strongly opposing this proposal. In 
     fact, even 4-out-of-10 Trump voters (39 percent) oppose 
     Republicans trying to change the filibuster rules.

[[Page S2296]]

       Highlighting potential actions and rulings that could 
     result from confirming Trump's Supreme Court nominee makes 
     voters much more likely to oppose him. Large majorities of 
     voters say they are more likely to oppose Trump's nominee 
     when they hear a diverse set of issues that could be impacted 
     by a nominee like Gorsuch. Actions that create strong 
     opposition include:
       Upholding the Citizens United decision to allow 
     corporations, unions, and wealthy donors to spend more money 
     on elections.
       Overturning the Roe v. Wade decision that made abortion 
     legal.
       Eliminating or weakening environmental regulations that 
     protect air, water, and land from pollution.
       Refusing to uphold or eliminating rights and protections 
     for LGBT individuals.
       Failing to protect voting rights and making it more 
     difficult for Americans, particularly the poor and people of 
     color, to vote.
       Weakening the ability of labor unions to organize workers 
     to negotiate for better wages and working conditions.
       Voters strongly support legal abortion and oppose a Trump 
     nominee they believe could put that right at risk. Seven out 
     of 10 voters (69 percent) support a woman's right to choose, 
     and they recognize that Trump's Supreme Court nominee 
     jeopardizes the Roe v. Wade decision that made abortion 
     legal. More than half of voters (52 percent) think it is very 
     or somewhat likely that Roe v. Wade will be overturned if 
     Trump's nominee is confirmed. This possibility raises strong 
     opposition for voters, with 61 percent who say they are more 
     likely to oppose a nominee who wants to overturn Roe v. Wade.
       Voters have strong negative reactions to a Supreme Court 
     nominee who will continue to allow corporations and special 
     interests to use money to gain influence and drown out the 
     voice of individuals in politics. Opposition to a nominee who 
     wants no spending limits for corporations and wealthy 
     individuals in elections is broad and deep. Overall, 78 
     percent are more likely to oppose a nominee (56 percent much 
     more likely to oppose), including 92 percent of Democrats, 84 
     percent of Independents, and 59 percent of Republicans. Three 
     quarters of voters express a desire for their Senators to 
     oppose a Supreme Court nominee who was ruled in favor of 
     allowing campaign contributors to spend more money in 
     politics.
       Voters recognize this Supreme Court nomination is crucial 
     to the direction of the country and they strongly oppose any 
     efforts by Republicans to skirt the rules to push through 
     Trump's ultraconservative nominee.

  So the date of that Greenberg Quinlan Rosner Research poll was 
February 1. I think it really highlights that voters understand that 
what we are doing now--this process of considering the potential 
confirmation of a nominee--has huge consequences for this country and 
has a huge impact on a whole variety of issues--environmental issues, 
labor issues, discrimination issues, consumer issues, commerce issues, 
a whole host of a range of things that the Supreme Court regularly 
considers. So there is a lot of concern at this point.
  Here is another issue, and that is the potential impact on LGBT 
rights. This is an article by Rebecca Buckwalter-Poza entitled: ``Judge 
Gorsuch Threatens the Dignity of LGBT People.''

       Judges with Supreme Court aspirations tend to guard their 
     views, avoiding stances and statements that could impede a 
     nomination or a confirmation. Judge Neil Gorsuch has done 
     just that, leading observers to look to his influences rather 
     than his issuances. Among them is Justice Anthony Kennedy, 
     for whom he clerked. While Judge Gorsuch and Justice Kennedy 
     may share a bond, they part ways on several issues. One 
     lesser known but critically important point of potential 
     disagreement surrounds a somewhat nebulous legal principle 
     critical to lesbian, gay, bisexual, and transgender, or LGBT, 
     rights: the dignity of free persons.
       For decades, the Supreme Court has repeatedly affirmed that 
     individuals' due process right to liberty also protects their 
     dignity--and shields them from indignity. The concept of 
     dignity encompasses an individual's innate value as people 
     and their right to live free of interference; their right to 
     make important personal decisions; and their entitlement to 
     social recognition or protection from discrimination. This 
     notion of human dignity is at the heart of the Court's three 
     landmark LGBT rights cases: Lawrence v. Texas, United States 
     v. Windsor, and Obergefell v. Hodges.
       Judge Gorsuch's writing--both on the bench and in his book 
     against ``assisted suicide,'' based on his Oxford 
     dissertation--suggests he is, at a minimum, skeptical of the 
     principle from which the right to dignity derives: 
     substantive due process. To be clear, substantive due 
     process, which protects individuals from having their 
     fundamental rights violated without justification, has 
     been part of Supreme Court jurisprudence for more than 100 
     years.
       In one case, Judge Gorsuch made a point of incorporating 
     criticisms of substantive due process. He noted that ``some'' 
     believe if such a concept existed, it would reside elsewhere 
     in the Constitution. ``Others,'' he offered, question whether 
     substantive due process ``should find a home anywhere in the 
     Constitution.'' This critical aside, while mild, is unusual. 
     Judge Gorsuch hews to precedent on substantive due process 
     only grudgingly, after conceding that ``the Supreme Court 
     clearly tells us'' that substantive due process does have a 
     home in the Constitution.
       In his book, Judge Gorsuch went so far as to criticize the 
     Supreme Court for adhering to substantive due process 
     precedent in ``case after case.'' He also proposed an 
     alternative relevance for dignity, based in equal protection, 
     that could restrict rather than protect individual rights. 
     The recognition of innate human dignity is the foundation for 
     equality, Judge Gorsuch claimed, and equality makes 
     ``assisted suicide''--termed ``death with dignity'' in those 
     states that permit it--unacceptable because all people 
     created equal enjoy an inalienable right to life. This view 
     is troubling, not only in signaling an intent to 
     misappropriate the concept of dignity to restrict individual 
     choice, but also because of the implications for reproductive 
     access, rights, and justice.

  This article continues:

       Senators must press Judge Gorsuch to commit to upholding 
     Supreme Court precedent based on the recognition of dignity--
     or admit he would not respect this long-established, critical 
     principle.

  This goes on in a somewhat scholarly fashion.
  (Mr. BOOZMAN assumed the Chair.)
  I want to return to the core premise and review the fact that never 
before have we had a stolen seat in the United States of America.
  It is so important to drive this point home, that there is absolutely 
no foundation for what happened last year in American history. You have 
those 16 seats where a vacancy occurred in an election year. I am going 
to go through them so that it becomes absolutely clear what we are 
talking about here.
  There were three seats where the vacancy occurred after the general 
election. So the general election was in early November. One seat opens 
in December in an election year, one in November, another in December--
three seats that opened up after the election and for which the 
nomination was put forward.
  There wasn't a lot of time. In these cases, the President was still 
transitioning in March, rather than in January, so there was a little 
more time than you might anticipate. We shortened that with a later 
constitutional amendment.
  Here, the President put forward a nominee within 3 days. Grant put 
forward a nomination within about a week and just a single day for 
Hayes to put forward a nomination.
  So here you are after the election. The passions of the campaign are 
starting to settle down. You know who the next President is going to 
be. There is not a lot of time, but there is enough time for the Senate 
to act, and it did in all three cases.
  In all three of these cases where the seat became empty after the 
election, even then, the Senate found there was time enough to act. In 
all three of these cases, that action was a confirmation of the 
nominee--three out of three. So that is one set.
  John Jay was nominated by President Adams. Ward Hunt was nominated by 
President Grant. Williams Woods was nominated by President Hayes, but 
in one of those interesting little twists, in this case, the nominee 
actually declined it after he had been confirmed. I don't know that we 
have seen that very often in the history of Supreme Court Justices.
  Then there is that set of cases in an election year where the vacancy 
occurred before the election but the President, for a variety of 
reasons, didn't nominate until after the election. So you are kind of 
back in the same situation--a short amount of time. We have four cases 
that are in that category.
  We had the first case in 1828--a vacancy before the election, a 
nomination afterward. The Senate acts. The Senate didn't always confirm 
the nomination, but they always acted. In this case, they rejected the 
nomination by tabling it.
  Then we had President Buchanan, who nominated Jeremiah Black. In May, 
the seat became vacant, and the nomination didn't occur until February. 
The President would have transferred in March. The Senate again acted. 
The Senators of this body acted, and they rejected it. They rejected it 
by rejecting the motion to proceed.
  Salmon Chase, under Lincoln--the vacancy occurred just a month before 
the election in October. The President put forward the nomination a 
month after the election in December, and the Senate confirmed him.

[[Page S2297]]

  With Eisenhower and William Brennan, there was a vacancy a month 
before the election and a nomination that basically came 2 months after 
the election--getting very close to the transition date, yet he was 
confirmed.
  So those are seven of the nominations, of which five were confirmed 
and two were rejected--tabled and the motion to proceed was rejected. 
Then we have the remaining nine. These nine are closer--well, one of 
them is the seat that became open when Antonin Scalia died, but the 
historic additional eight seats--those seats are a little closer to the 
situation we have with Antonin Scalia dying and the President 
nominating Merrick Garland, because the vacancy came before the 
election in these eight cases, and the nomination came before the 
election.
  In fact, here we have the first case, under President Jefferson. He 
nominated William Johnson. But the vacancy occurred in January. The 
nomination occurred in March. It was pretty close to the situation we 
faced last year, yet the Senate acted, and they confirmed the nominee.
  President Tyler nominated Edward King. The vacancy occurred in April, 
the nomination in June, and the Senate acted. They rejected the 
nomination by tabling it.
  Edward Bradford was nominated by President Fillmore in July of 1852. 
The following month, the nomination was put forward before the 
election, and again the Senate acted, but they tabled it.
  So they didn't confirm in every case, but they acted in every single 
case.
  Melville Fuller was nominated by President Cleveland. There was a 
vacancy in March. The nomination was in May. He was confirmed.
  Under President Harrison, there was George Shiras. The vacancy 
occurred in January. Quite a few months passed. It was almost 6 months 
before the nomination was put forward in July by the President. The 
nomination was confirmed.
  Justice Brandeis was put forward by President Wilson. In this case, 
two vacancies occurred in an election year, both before the election--
one in January, one in June. The candidate was put forward quite 
quickly--within the month of January and a month later in the case of 
John Clarke--and both were confirmed.
  There was Benjamin Cardozo under President Hoover in 1932. The 
vacancy was in January. The nomination was in February. He was 
confirmed.
  So those are 8 additional, and we have now a total of 14.
  Then we have Merrick Garland. Obama put forward Merrick Garland. The 
vacancy was in February. The nomination was in March. No action. It is 
the only time there was no action in U.S. history.
  That is why we have all of these editorials from across the country 
noting that this is a stolen seat, that it has never happened before, 
and that it sets a terrible precedent. That is the problem we are 
looking at.
  Why is it a terrible precedent? Because once the Senate starts 
stealing a seat from one President and handing it to another in an 
effort to pack the Court, there is no end to the mischief that follows.
  If you can steal a seat in which there was plenty of time to consider 
in the final year of a Presidency, you can do it for 2 years. We saw 
this in terms of many comments that were made by Republican legislators 
before the November election. When they thought the Democratic nominee 
was going to win, they were saying: We are going to make sure that for 
4 years, it stays an eight-member Court, that no matter that the people 
will have spoken through an election, no matter that a nominee has been 
put forward who is credible, we are simply not going to consider it for 
4 years.
  This is a court-packing scheme through the theft of this Supreme 
Court seat. You can just think about if the Court is packed, then when 
the parties are reversed--and it always does go back and forth sooner 
or later--then does the other party say: We have to balance back out 
the Court, restore its integrity by stealing a seat back, stealing it 2 
years into a Presidency.
  It is terrible not only in terms of its impact on the Senate here 
because it now makes this incredibly partisan pitched battle out of 
what was supposed to be an advice and consent responsibility to deter a 
President from nominating people of unfit character--I use the phrase 
``of unfit character.'' That is a phrase Hamilton used. In the 
Federalist Papers, he lays out what this advice and consent 
responsibility was supposed to be all about. They needed to have a 
strategy for how they put key appointments into the executive branch to 
basically staff the Cabinet agencies.
  They thought at first: Maybe the check will be that we will have the 
appointments made by the Senate.
  So the executive branch will be headed by the President, but the 
appointments will be made by, as they referred to it, the assembly.
  Then they said: Well, there is a big problem with that because one 
Senator will get their best friend in one post in exchange for some 
other Senator's best friend in some other post. The public won't know 
why it happened. There will be no accountability. So that is not a 
great idea.
  So they said: A better idea is to have accountability and have the 
President make the appointments. But there is a problem. What if the 
President goes off-track and starts appointing people of unfit 
character? Well, we need a way to put a check on that.
  So they came up with this idea of the Senate's advice and consent, 
meaning that the Senate could block a nominee if the person was of 
unfit character. They anticipated this power to be used rarely because 
of the very nature and the very existence of the power of the Senate to 
block someone of unfit character would deter a President from 
appointing someone of unfit character.

  What did they mean by unfit character? Well, it could mean a host of 
things--that a President might be appointing somebody who had some 
conflict of interest or who was unacceptable, or maybe the President 
was appointing someone who had absolutely no knowledge of the issues or 
maybe appointing somebody who had an alcohol problem and wasn't capable 
of responsibly executing the task, the responsibilities of the office. 
There were a host of possibilities, but they thought it would be rarely 
used; that it wouldn't be applied as a tool to conduct warfare on the 
executive branch; that it wouldn't be used as a tool to be conducted as 
warfare on the judiciary; and it wouldn't be used as a tool to pack the 
Court and delegitimize the Court. Yet we have been seeing all of that 
from the past in recent years. So that really is something that we 
should be deeply concerned about.
  (Mr. FLAKE assumed the Chair.)
  We saw, back in 2013, the growing use of the supermajority as a 
weapon of mass legislative destruction or government destruction in 
trying to prevent the President from having a team with which he could 
act. The National Labor Relations Board was blocked from having its 
positions filled, and the Labor Secretary was unable to get a floor 
vote, and the list just went on and on and on--tons of district court 
judges and circuit court judges, to the point that we had to find a way 
to curb that destructive strategy, and that meant that we had to go to 
a simple majority. But we left in place the supermajority for the 
Supreme Court because it has powers no other institution has. It is the 
decider.
  One can have a district court make a decision that gets bumped to a 
circuit court, and a circuit court makes a decision, and it goes to the 
Supreme Court. They are ultimately the decider and they hold the 
positions for as long as they want. So they can hold it for decades. It 
is not an appointment to the executive branch that might be there for 2 
to 4 years. That is why it is so incredibly important that we get this 
right and why people who are observing what is going on are so 
concerned about the damage that is being done.
  This article is from the New York Times: ``Neil Gorsuch, the Nominee 
for a Stolen Seat.''

       It's been almost a year since Senate Republicans took an 
     empty Supreme Court seat hostage, discarding the 
     constitutional duty that both parties have honored throughout 
     American history and hobbling an entire branch of government 
     for partisan gain.
       President Trump had a great opportunity to repair some of 
     that damage by nominating a moderate candidate for the 
     vacancy, which was created when Justice Antonin Scalia died 
     in February. Instead, he chose Neil Gorsuch, a very 
     conservative judge from the federal Court of Appeals for the 
     10th Circuit whose jurisprudence and

[[Page S2298]]

     writing style are often compared to those of Justice Scalia.
       If Judge Gorsuch is confirmed, the court will once again 
     have a majority of justices appointed by Republican 
     presidents, as it has for nearly half a century. For 
     starters, that spells big trouble for public-sector unions, 
     environmental regulations and women's access to 
     contraception. If Trump gets the chance to name another 
     justice, the consequences could be much more dire. In normal 
     times, Judge Gorsuch--a widely respected and, at 49, 
     relatively young judge with a reliably conservative voting 
     record--would be an obvious choice for a Republican 
     President.
       These are not normal times.
       The seat Judge Gorsuch hopes to sit in should have been 
     filled, months ago, by Merrick Garland, the chief judge of 
     the Court of Appeals for the District of Columbia Circuit, 
     whom President Barack Obama nominated to the high court last 
     month. Judge Garland, a former federal prosecutor and 20-year 
     veteran of the nation's most important federal appeals court, 
     is both more moderate and more qualified than Judge Gorsuch.
       That meant nothing to Senate Republicans, who abused their 
     power as the majority party and, within hours of Justice 
     Scalia's death, shut down the confirmation process for the 
     remainder of Mr. Obama's presidency. There would be no 
     negotiations to release this hostage; the sole object was to 
     hold on to the court's conservative majority. The 
     outrageousness of the ploy was matched only by the 
     unlikelihood that it would succeed--until, to virtually 
     everyone's shock, it did.
       The destructive lesson Senate Republicans taught is that 
     obstruction pays off. Yet they seem to have short memories. 
     After Senate Democrats refused to attend votes on two of Mr. 
     Trump's cabinet picks on Tuesday, Senator Pat Toomey of 
     Pennsylvania said, ``We did not inflict this kind of 
     obstructionism on President Obama.'' Even absent such 
     dishonesty, any Democratic impulse to mimic the Republican 
     blockade by filibustering Judge Gorsuch would be 
     understandable. But Senate Democrats should be wary of 
     stooping to the Republicans' level, especially because any 
     such effort is likely to prove futile, since Republicans have 
     the votes to simply eliminate the use of the filibuster. . . 
     .

  You know, I think about the fact that it has been bandied about with 
such lack of gravity that the Senate majority may change the 60-vote 
requirement for the Supreme Court. It is an immediate tactical victory 
to do so, but it may turn out to be a tactical mistake in the bit 
longer term. President Trump may have a single opportunity to put in 
place a Supreme Court Justice, and the next President, who might be a 
Democrat, might have many chances to nominate a Supreme Court Justice. 
So lowering the standard from the 60 votes designed to have a judge 
down the middle could lead to very different consequences depending on 
when various judges retire, who they are, and where they are in the 
spectrum--something that none of us can predict. So it is certainly a 
strategy that has simply just been asserted as this: Well, we will just 
do it.

  Not only does it have high tactical risk, but it just is another blow 
of the ax, felling the trees in the forest of the integrity of the 
Court and the integrity of the Senate. It sets the stage for all these 
battles that are going to come over future nominees. The pure 
partisanship, short-term gains, grudges to be remedied rather than the 
advice and consent vision that was in our Constitution--the vision that 
Hamilton laid out which might have to be used rarely because it would 
deter Presidents from making nominations of people of unfit character.
  I am disturbed about where we are headed. There are many policy 
issues that seem important at the time as they come to this floor, and 
they are important. They are issues related to the ability of workers 
to get fair wages for the value they bring to the development of the 
products they make. There are certainly key issues about our 
transportation infrastructure and key challenges on healthcare. But a 
single Supreme Court seat can change policy on a huge spectrum of 
issues with the Supreme Court as the final arbiter.
  If we have a pivot point in which dark money--unlimited amounts of 
funds--are injected into the national campaigns forever more, well, we 
are never going to heal and get back to the point of the Senate being a 
great deliberative body, because that dark money will own this body and 
control this body, much as it does now after the entry of the Koch 
brothers into the national campaign contests.
  That is the impact of a single Supreme Court decision. It has huge 
impact on who serves here and what decisions they make. It has huge 
impact on whether we are a ``we the people'' government or a government 
by and for the most powerful.
  It might be interesting at this point to go back in time to sections 
of a speech by Senator Robert Byrd. Senator Byrd was still in the 
Senate when I came here in 2008. He was one of four Senators that were 
in the Senate when I was an intern in 1976.
  He says in his speech, delivered December 15, 1998, in the Old Senate 
Chamber:

       Clio being my favorite muse, let me begin this evening with 
     a look backward over the well-traveled road of history. 
     History always turns our faces backward, and this is as it 
     should be, so that we might be better informed and prepared 
     to exercise wisdom in dealing with future events.
       ``To be ignorant of what happened before you were born,'' 
     said Cicero, ``is to remain always a child.''

  So, for a little while, as we meet together in this hallowed place, 
let us turn our faces backward.

       Look about you. We meet tonight in the Senate Chamber. Not 
     the Chamber in which we transact our business daily now, but 
     the Old Senate Chamber where our predecessors wrote the laws 
     before the Civil War. Here, in this room, Daniel Webster--he 
     moved about the Chamber from time to time--Daniel Webster 
     orated, Henry Clay forged compromises, John C. Calhoun stood 
     on principle. Here, Henry Foote of Mississippi pulled a 
     pistol on Thomas Hart Benton of Missouri. Senator Benton 
     ripped open his coat, and said, ``Let the assassin fire!'' 
     And, ``Stand out of the way.'' Here the eccentric Virginia 
     Senator John Randolph brought his hunting dogs into the 
     Chamber, and the dashing Texas Senator Sam Houston sat over 
     here to my right; he sat at his desk whittling wooden hearts 
     for ladies in the gallery. Seated at his desk in the back 
     row, Massachusetts Senator Charles Sumner was beaten 
     violently over the head with a cane wielded by Representative 
     Preston Brooks of South Carolina, who objected to Sumner's 
     strongly abolitionist speeches and the vituperation that 
     Sumner had heaped upon Brooks' uncle, Senator Butler of South 
     Carolina.
       The Senate first met here in 1810, but, because our British 
     cousins chose to set fire to the Capitol during the War of 
     1812, Congress was forced to move into the Patent Office 
     Building in downtown Washington, and later into a building 
     known as the Brick Capitol, located on the present site of 
     the Supreme Court Building. Hence, it was December 1819 
     before Senators were able to return to this restored and 
     elegant Chamber. They met here for 40 years, and it was 
     during that exhilarating period that the Senate experienced 
     its ``Golden Age.''
       Here, in this room, the Senate tried to deal with the 
     emotional and destructive issue of slavery by passing the 
     Missouri Compromise of 1820. That act drew a line across the 
     United States and asserted that the peculiar institution of 
     slavery should remain to the south of the line and not spread 
     to the north. The Missouri Compromise also set the precedent 
     that for every slave state admitted to the Union, a free 
     state should be admitted as well, and vice versa. What this 
     meant in practical political terms was that the North and the 
     South would be exactly equal in voting strength in this 
     Chamber, and that any settlement of the explosive issue of 
     slavery would have to originate here in the Senate. As a 
     result, the Nation's most talented and ambitious legislators 
     began to leave the House of Representatives to take seats 
     here in the Senate Chamber. Here, they fought to hold the 
     Union together through the omnibus compromise of 1850, only 
     to overturn these efforts by passing the fateful Kansas-
     Nebraska Act of 1854.
       The Senators moved out of this room in 1859, on the eve of 
     the Civil War. When they marched in procession from this 
     Chamber to the current Chamber, they marked the last time 
     that leaders of the North and South would march together. The 
     next year, the South seceded, and Senators who had walked 
     shoulder to shoulder here parted to become military officers 
     and political leaders of the Union and of the Confederacy.
       This old Chamber that they left behind is not just a 
     smaller version of the current Chamber. Here, the center 
     aisle divides the two parties, but there are an equal number 
     of desks on either side--you will count 32 on one side and 32 
     on the other, not because the two parties were evenly 
     divided, but because there was not room to move desks back 
     and forth, depending on the size of the majority, as we do 
     today. That meant that some members of the majority party had 
     to sit with members of the minority. It did not matter to 
     them. The two desks in the front row in the center aisle were 
     not reserved for the majority and minority leaders as they 
     are now, because there were no party leaders at that time. No 
     Senator spoke for his party; every Senator spoke for himself. 
     There were recognized leaders among the Senators, but only 
     unofficially. Everyone knew, for example, that Henry Clay led 
     the Whigs, but he would never claim that honor. Clay 
     generally sat in the last row at the far end of the Chamber 
     so he could talk to Senators as they came in to vote.
       The Senate left this Chamber because it outgrew the space. 
     When they first met here in 1810, there were 32 Senators. So 
     many states were added over the next four decades

[[Page S2299]]

     that when they left in 1859, there were 64 Senators. Yet, 
     while the Senate increased in size, it was essentially the 
     same institution that the Founders had created in the 
     Constitution. Today, another century and four decades later, 
     and having grown to 100 Senators, it is still essentially the 
     same institution. The actors have changed; the issues have 
     changed; but the Senate, which emerged from the Great 
     Compromise of July 16, 1787, remains the great forum of the 
     states. This is so, largely, because as a Nation, we were 
     fortunate to have wise, cautious people draft and implement 
     our Constitution. They were pragmatists rather than 
     idealists. James Madison particularly had a shrewd view of 
     human nature. He did not believe in man's perfectibility. He 
     assumed that those who achieved power would always try to 
     amass more power, and that political factions would always 
     compete out of self-interest. In ``The Federalist Papers,'' 
     Madison reasoned that ``in framing a government which is to 
     be administered by men over men, the great difficulty lies in 
     this: You must first enable the government to control the 
     government; and, in the next place, oblige it to control 
     itself.'' Madison and other Framers of the Constitution 
     divided power so that no one person, no single branch of 
     government could gain complete power. As Madison explained 
     it: ``Ambition must be made to counteract ambition.''
       However, ambition has not always counteracted ambition, as 
     we saw in the enactment by Congress of the line-item veto in 
     1996. Just as the Roman Senate ceded its power over the purse 
     to the Roman dictators, Sulla and Caesar, and to the later 
     emperors, thus surrendering its power to check tyranny, so 
     did the American Congress, the Senate included. By passing 
     the Line-Item Veto Act the Congress surrendered its control 
     over the purse--control which had been vested by the Founding 
     Fathers here in this legislative branch.
       This brings me to the first point I would like to leave you 
     with this evening. It is this: The legislative branch must be 
     eternally vigilant over the powers and authorities vested in 
     it by the Constitution--eternally vigilant. This is vitally 
     important to the security of our constitutional system of 
     checks and balances and separation of power. George 
     Washington in his Farewell Address of September 17, 1796, 
     emphasized the importance of such vigilance: It is important 
     likewise that the habits of thinking in a free country should 
     inspire caution in those intrusted with its administration to 
     confine themselves within their respective constitutional 
     spheres, avoiding in the exercise of the powers of one 
     department, to encroach upon one another. The spirit of 
     encroachment tends to consolidate the powers of all the 
     departments in one, and thus to create, whatever the form of 
     government, a real despotism. . . . The necessity of 
     reciprocal checks in the exercise of political power, by 
     dividing and distributing it into different depositories, and 
     constituting each the guardian of the public weal against 
     invasions of the others, has been evinced by experiments 
     ancient and modern. . . . To preserve them must be as 
     necessary as to institute them.
       Each Member of this body must be ever mindful of the 
     fundamental duty to uphold the institutional prerogatives of 
     the Senate if we are to preserve the vital balance which 
     Washington so eloquently endorsed.

  Senator Byrd continues:

       During my 46 years in Congress, and particularly in more 
     recent years, I have seen an inclination--I think I have--on 
     the part of many legislators of both parties to regard a 
     chief executive in a role more elevated than the Framers of 
     the Constitution intended. We as legislators have a 
     responsibility to work with the chief executive, but it is 
     intended to be a two-way street. The Framers did not envision 
     the office of President as having the attributes of royalty. 
     We must recognize the heavy burden that any President bears, 
     and wherever and whenever we can, we must cooperate with the 
     chief executive in the interest of all of the people. But let 
     us keep in mind Madison's admonition: ``Ambition must be made 
     to counteract ambition.''
       As Majority Leader in the Senate during the Carter years, I 
     worked hard to help President Carter enact his programs, but 
     I publicly stated that I was not ``the President's man''; I 
     was a Senate man. For example, in July 1977, I opposed 
     President Carter's plan to sell the AWACS (Airborne Warning 
     and Control System) to Iran. Iran was then a military ally of 
     the United States, but I was troubled over the potential 
     security risks involved with the possibility of compromising 
     highly sophisticated technology in this volatile region. I 
     was concerned that the sale ran contrary to our national 
     interests in maintaining a stable military balance and 
     limited arms proliferation in the Middle East. Both Houses of 
     Congress had to vote disapproval resolutions to stop the 
     sale. I enlisted the support of then Republican Minority 
     Leader Howard Baker. Senator Baker was someone who could rise 
     above political party when he believed that the national 
     interests required it, just as he did in the Panama Canal 
     debates. The Carter administration chose to withdraw the sale 
     of AWACS temporarily. Shortly afterwards, the Iranian 
     revolution occurred and the Shah was replaced. Had that sale 
     gone through as planned, those sophisticated aircraft would 
     have fallen into the hands of an unfriendly government. As so 
     often has happened in our history, individual courage and 
     character again chartered our course.

  I want to return to Senator Byrd's point about Republican Minority 
Leader Howard Baker. It says: ``Senator Baker was someone who could 
rise above political party when he believed the national interests 
required it, just as he did during the Panama Canal debates.'' The 
debate over those treaties was intense because they were a valuable 
asset controlled by the United States. Many thought of them as a 
possession of the United States, and we were turning them over to 
Panama after a long period of negotiations. But to be able to rise 
above partisanship to pursue a national interest--that is what we need 
now as we face the potential of this devastating change in Senate 
conduct over the selection of a Supreme Court nominee.
  I hope we can find a way to rise above partisanship or political 
party and pursue the national interests because I have seen so little 
of the desire to strengthen our institutions. I am not optimistic, but 
I do think it is worth noting that it is possible. We could take this 
train off the tracks--because of the shadow hanging over the 
Presidency, because of the far-right views of Neil Gorsuch, because it 
is a stolen seat and we haven't remedied that situation with a plan.
  Senator Robert Byrd continued:

       This brings me to my second point. On the great issues, the 
     Senate has always been blessed with Senators who were able 
     to rise above party, and consider first and foremost the 
     national interest. There are very worthy examples in 
     Senate history.
       When I came to the Senate in 1959, artists were at work 
     painting five porthole portraits in the Senate reception 
     room. The Senate had appointed a special Committee chaired by 
     Senator John F. Kennedy to select the five most significant 
     Senators in Senate history. This was no easy task, because 
     there were many potential candidates.
       In setting the criteria, the Committee looked to Senators 
     who had stood firm for principle, who had not blown with the 
     winds, and who made personal sacrifices for the national 
     good. They were not saints, nor were they perfect men.
       Daniel Webster's personal financial dealings left an 
     eternal blot upon his record; yet, he deserved to have his 
     portrait in the Senate reception room, not simply as a great 
     orator, but as a man who sacrificed his own political 
     standing by endorsing the compromise of 1850, which was 
     deeply unpopular in his home State of Massachusetts, but 
     which he realized was the best chance to hold the Union 
     together.
       In my almost 46 years in Congress, I have seen other 
     courageous Senators.
       I have already referred to the courage demonstrated by 
     former Senator Howard Baker during the Panama Canal debates. 
     Without Senator Baker's support, the Panama Canal Treaties 
     would never have been approved by the Senate. We needed two-
     thirds; we were swimming uphill. The odds were against us. 
     The killing of American servicemen in Panama would have gone 
     on, but Senator Howard Baker threw his shoulder behind the 
     wheel and helped to construct what he and I referred to as 
     leadership amendments, amendments which protected U.S. 
     interests in that region, and we both worked shoulder to 
     shoulder against great odds, as indicated by the polls.
       We did so because we believed, after careful study, that 
     the treaties were in the best interests of the United States. 
     There were people in my own State of West Virginia who still 
     don't believe that. But I was convinced of it.
       Howard Baker knew what my old majority leader, Mike 
     Mansfield, and all students of the Senate's institutional 
     role know.
       Political polarization--too much emphasis on which side of 
     the aisle one sits, is not now, and has never been, a good 
     thing for the Senate. I am talking about politics when it 
     becomes gamesmanship or when it becomes mean-spirited or when 
     it becomes overly manipulative, simply to gain advantage.
       I am not talking about honestly held views or differing 
     political positions. Those things enrich our system. 
     Americans have always loved a good debate. And that is what I 
     believe and wish for now: More substantive and stimulating 
     debate and less pure politics and imagery.
       But I well understand history and its ebb and flow, and I 
     well know that we live in an age of imagery. It is simply my 
     wish that, sometime soon, the rising tide of imagery and 
     partisanship will begin to ebb rather than to flow quite so 
     freely.
       Washington, in his farewell address, warned us against the 
     ``baneful effects of the spirit of party'' when he said:
       ``. . . in governments purely elective, it is a spirit not 
     to be encouraged. From their natural tendency, it is certain 
     there will always be enough of that spirit for every salutary 
     purpose. And there being constant danger of excess, the 
     effort ought to be, by force of public opinion, to mitigate 
     and assuage it. A fire not to be quenched, it demands a 
     uniform vigilance to prevent its bursting into a flame, lest 
     instead of warming, it should consume.''
       So, I believe that the American people are more than tired 
     of partisan warfare. I believe

[[Page S2300]]

     they wish for less of it from the Congress, especially in the 
     Senate, where more statesmanship and a longer view are still 
     expected.
       Declining participation in elections, and repeated public 
     surveys which indicate weariness, distrust, and alienation 
     within our system ought to serve as a harbinger to be ignored 
     at our peril.
       It must be a matter of concern to all of us that all too 
     few Americans look to officeholders for inspiration in these 
     troubled and turbulent times.
       How can we attract the talent needed to serve in public 
     office in future years if elected officials continue to be 
     held in such low esteem?

  Continuing to read Senator Byrd's speech in the Old Senate Chamber:

       I would very much like to see a rekindling of basic faith 
     in our leaders, and a renewal in politics and of public 
     service. But the existence of inspiring leadership by public 
     officials is fundamental to a shoring up of that faith.
       In fact, I think the American people are in desperate need 
     of some old-fashioned heroes. Now, it seems, today's heroes, 
     if we want to loosely use the term, are merely celebrities--
     rock stars who spout deplorable messages, or sports figures 
     who mass fortunes advertising baggy clothes at exorbitant 
     prices.
       I'm not talking about Sammy Sosa. I'm not talking about 
     Mark McGuire. They were my heroes, too, as was Babe Ruth in 
     1927. Not much to look up to here, I say. Not much to build 
     dreams on.
       Look hard at the content of our popular culture. There is 
     really nothing much to inspire and look up to. And 
     regrettably there also is not much to counter the empty 
     commercialism which is so prevalent today. It has become the 
     norm.

  Senator Byrd continued:

       So where are we in all of this? What is our role? What part 
     can we as Senators--authority figures, statesmen representing 
     the people--play while we simultaneously endeavor to carry 
     out our 200-year-old mandate, bequeathed to us by some of the 
     most brilliant men of their age, or of any age before or 
     since?
       Well, we can show up for our roll call votes, carry out our 
     committee assignments, issue the obligatory press releases, 
     dutifully follow up on constituent requests, and answer our 
     mail.
       All of these are necessary and to a greater or lesser 
     degree important.
       But a reemphasis by the Senate on our strict institutional 
     role is certainly something which I would like to see. It is 
     a sobering and heavy responsibility all by itself, and its 
     very weightiness tends to cool the over-heated passions of 
     political demagoguery. After all, that role is, in a 
     constitutional sense, the reason we are here. The Framers 
     expected a zealous defense of our powers to keep the tyrants 
     at bay. But there is still another role--an intangible 
     something--that we who are privileged to sit in this body, 
     and indeed leaders in the private sector, as well as those 
     who write and reflect upon the news, are called upon to play. 
     I call it the duty beyond our duties.
       The duty I am talking about is the duty to endeavor to 
     inspire others and to demonstrate, through personal example, 
     that public service of all types ought to be an honorable 
     calling. Contrary to what many believe, it is absolutely the 
     wrong place for the slick and the insincere.
       Serving the public in a leadership role demands honesty, 
     hard work, sacrifice, and dedication from those who dare to 
     ask the people for such an awesome trust. Those who ask to 
     shoulder that mantle also shoulder a much larger personal 
     obligation than many of us may regularly contemplate.
       Mr. Leader, we all have a clear responsibility to serve as 
     role models to inspire our people, and particularly our young 
     people, to be and to do their best.
       On that score, we politicians, as a group, generally miss 
     the mark.
       Perhaps it's because power, whether it be the power of 
     political office, or the power to run giant corporations, or 
     the power to report and analyze events, is a very heady 
     thing. It can lead to arrogance, self aggrandizement, 
     disregard for playing by the rules, and contempt for the 
     people who send us here. It can lead us to forget that we are 
     servants, not masters.

  Senator Byrd continued:

       In the real world, exemplary personal conduct can sometimes 
     achieve much more than any political agenda. Comity, 
     courtesy, charitable treatment of even our political 
     opposites, combined with a concerted effort to not just 
     occupy our offices, but to bring honor to them, will do more 
     to inspire our people and restore their faith in us, their 
     leaders, than millions of dollars of 30-second spots or 
     glitzy puff-pieces concocted by spin-meisters.
       These are troubling times for our nation and our people on 
     both the national and international fronts.
       For our country to weather the rough seas ahead, we must 
     use our most tempered judgment and seek out our best and most 
     noble instincts.
       Our example here can be a healing element--a balm to salve 
     the trauma of distrust and disillusionment too long endured 
     by good people. Let each of us follow his or her own 
     conscience when it comes to issues, but as we do so, may we 
     be ever mindful that our people watching us, and the people 
     who sent us here can take us back home again.
       Let us be aware of the sublimely uplifting which the 
     example of simple dignity, decency, decorum, and dedication 
     to duty can play in the life of a nation.

  Senator Byrd had yet more words to share.

       Let us also remember that even after two hundred years, the 
     Senate is still the anchor of the Republic, the morning and 
     evening star in the American constitutional constellation.
       It has had its giants and its little men, its Websters and 
     its Bilbos, its Calhouns and its McCarthys. It has been the 
     stage of high drama, of comedy and tragedy, and its players 
     have been the great and the near great, those who think they 
     are great, and those who probably never will be great.
       It has weathered the storms of adversity, withstood the 
     barbs of cynics and the attacks of critics, and provided 
     stability and strength to the nation during periods of civil 
     strife and uncertainty, panics and depressions.
       In war and in peace, it has been the sure refuge and 
     protector of the rights of the state and of a political 
     minority because great and courageous Senators have always 
     been there to stay the course and keep the faith.
       And it can do so again as long as we are ever blessed in 
     this august body with those who hear the clear tones of the 
     bell of duty, the Senate will continue to stand--the great 
     forum of the constitutional American liberty!

  That is a lot of good advice. As we sit here in these troubled times 
and ponder how we are going to rise above the passions and politics of 
the moment to restore the functionality of the Senate, that is the 
challenge we have. I believe Byrd--with his experience, with his 
articulate language--is calling to us from the past to say that we can 
do it. We can do better. We can rise above the situation in which we 
have put ourselves, the situation in which one team, for the first time 
in U.S. history, has stolen a Supreme Court seat to pack the Court.

  To now be in this position of considering a Senate nomination at the 
exact moment that the person making the nomination and his team are 
under investigation for potentially traitorous conduct against the 
United States--but we don't have the answers yet.
  (Mr. PAUL assumed the Chair.)
  Here we are with a nominated judge who is way outside the mainstream, 
and we therefore have a challenge. It is exactly what the filibuster 
was designed for--to keep judges who are outside the judicial 
mainstream from being nominated. So that is a lot for us to wrestle 
with in the next few days.
  The New Yorker did an analysis of where Neil Gorsuch lies. The 
subtitle says: ``Every sign suggests that he would be at least as 
conservative a judicial activist as Samuel Alito.'' This is a different 
source, but that is the same basic point, showing an analysis that 
places Neil Gorsuch to the right side of the right peak in terms of 
ideology.

       Ruth Bader Ginsburg, the diminutive liberal colossus of the 
     Supreme Court, has built a distinguished record as a Justice, 
     but her legacy as a nominee is more dubious. In her 
     confirmation hearing before the Senate Judiciary Committee, 
     in 1993, she refused to answer most questions about how, if 
     confirmed, she would rule. In an oft-quoted phrase, she vowed 
     to give ``no hints, no forecasts, no previews.'' Nominees 
     have invoked this stonewall ever since.
       Last week, Neil Gorsuch, Donald Trump's choice to fill the 
     seat of the late Antonin Scalia, proved an especially ardent 
     follower of what has come to be known as the Ginsburg rule. 
     Asked repeatedly by members of the committee about his views 
     of such cases as Roe v. Wade and Citizens United, Gorsuch not 
     only refused to answer, but went on to say that his feelings, 
     if he had any, were of no consequence: ``It's not a matter of 
     agreeing or disagreeing. It's a matter of it being the law, 
     and my job is to apply and enforce the law.'' Gorsuch 
     portrayed himself as a kind of judicial automaton, obligated 
     to pay mindless obeisance to the Court's prior rulings.
       This interpretation of the role of Supreme Court Justices 
     is, to put it charitably, incorrect--they can and do overturn 
     their earlier holdings. And Trump didn't nominate Gorsuch 
     simply because he knows how to follow precedent. He nominated 
     Gorsuch because his career resembles a lab experiment 
     synthesizing every trend in modern conservative thought.
       A ruggedly handsome Coloradan--this President cares a great 
     deal about appearances--Gorsuch has an appealing manner and 
     an impressive resume. He did well in good schools, held 
     prestigious clerkships, worked at a fine law firm, took a 
     senior post in the Department of Justice, and for the past 
     decade has served in the Tenth Circuit Court of Appeals. From 
     his boyhood days as a Republican Senate page to his decades 
     of volunteer work for GOP candidates, Gorsuch has been

[[Page S2301]]

     a strong party loyalist. (Like many Republican pols, he 
     refers to the ``Democrat,'' rather than the Democratic, 
     Party.)
       His background also includes a dose of pro-corporate, 
     deregulatory libertarianism, as reflected in his close 
     relationship with the billionaire Philip Anschutz, a client 
     turned mentor. A sampling of authoritarianism can be seen in 
     Gorsuch's service in George W. Bush's Justice Department, 
     where he helped craft a proposal for the treatment of 
     detainees at Guantanamo. (The Supreme Court later ruled it 
     unconstitutional.) There's social conservatism, too, evident 
     in his one book, a critique of death-with-dignity laws and 
     physician-assisted suicide. ``All human beings are 
     intrinsically valuable,'' he wrote, ``and the intentional 
     taking of human life by private persons is always wrong.'' 
     It's easy to read the book as a coded attack on abortion 
     rights.
       To the extent that Gorsuch said anything of substance at 
     his hearing, he put himself across as a mainstream figure. He 
     said he participated in some 2,700 cases on the appeals 
     court, and had voted with the majority in 99 percent of the 
     them. This proves only that most cases are routine. (Even the 
     Supreme Court issues unanimous rulings more than half the 
     time.) The hard cases are the ones that matter, and it's 
     reasonable to project how Gorsuch would vote in them. He 
     would oppose abortion rights. (Trump promised to appoint a 
     ``pro-life'' Justice.)
       His predilection for employers over employees is such that 
     it yielded a circuit-court opinion of almost Gothic cruelty. 
     When subzero temperatures caused a truck driver's trailer 
     brakes to freeze, he pulled over to the side of the road. 
     After waiting three hours for help to arrive, he began to 
     lose feeling in his extremities, so he unhitched the cab 
     from the trailer and drove to safety. His employer fired 
     him for abandoning company property. The majority in the 
     case called the dismissal wrong, but Gorsuch said the 
     driver was in the wrong.
       As a Justice, Gorsuch would embrace a deregulation of 
     campaign finance symbolized by the Citizens United decision. 
     (He argued in an opinion that judges should evaluate limits 
     on political contributions using the same tough standards 
     that they apply to racial discrimination.)
       His most famous Tenth Circuit decision had him taking a 
     side in the culture wars. In Hobby Lobby Stores v. Sebelius, 
     he ruled that a multibillion-dollar corporation could 
     withhold federally guaranteed rights to birth control from 
     thousands of female employees because of religious beliefs of 
     the corporation's owners. (His position was upheld, 5-4, by 
     the Supreme Court.)
       In an embarrassing coincidence, on the second day of 
     Gorsuch's testimony, the Court unanimously rejected one of 
     his holdings in the Tenth Circuit, ruling that it denied 
     adequate educational opportunities to students with 
     disabilities.
       Every sign suggests that Gorsuch would be at least as 
     conservative a judicial activist as Samuel Alito.
       It's also clear what Neil Gorsuch is not: Merrick Garland. 
     Gorsuch's nomination is inextricable from its shameful 
     political context. When Scalia died, more than 11 months 
     remained in Barack Obama's Presidency, but Senate Republicans 
     refused to give his nominee even a hearing. This departure 
     from norms is all the more outrageous because a tactic was 
     used to block a moderate; the Republicans denied Obama his 
     constitutional right in order to trade a Justice who might 
     have been less liberal than Stephen Breyer for one who might 
     be as radical as Clarence Thomas.
       Such a turnabout seems especially disturbing given that the 
     FBI and other agencies are now investigating the very 
     legitimacy of the Trump Presidency. Indeed, Chuck Schumer, 
     the Democratic leader in the Senate, has called for a delay 
     in the Gorsuch vote until there is some clarity about the 
     Trump camp's ties to Russia. Last week, he also promised to 
     lead a filibuster against Gorsuch's confirmation, but 
     Republicans, in response, vowed to change the Senate rules to 
     allow them to confirm the nominee by a simple majority.
       The Supreme Court is, as political scientists like to say, 
     a counter-majoritarian institution: The President and members 
     of the Congress must answer to voters; the Justices, who 
     serve for life, answer only to the commands of the 
     Constitution. But, in doing so, it's their duty to speak for 
     those who lack political power. The Trump era has already 
     meant trouble for these people--the poor, the sick, the 
     dissenters, immigrants--and Gorsuch, for all his intellectual 
     distinction, has shown scant regard for their concerns. 
     There's little reason to believe that he would as a Justice 
     either.

  The L.A. Times wrote the story titled ``Another judicial dirty trick 
from Senate Republicans.''

       One of 2016's most spectacular examples of government 
     dysfunction was the U.S. Senate's outrageous refusal to 
     consider President Obama's nomination of Judge Merrick 
     Garland to replace the late Antonin Scalia on the Supreme 
     Court. That dereliction of duty by the Republican majority 
     not only denied the sitting President his constitutional 
     prerogative to fill vacancies in the court (so that the 
     appointment would go instead to a hoped-for Republican 
     successor.) It also prevented the court from resolving a 
     handful of cases because of a 4-4 split and probably 
     discouraged the justices from accepting other cases because 
     of the possibility of a similar deadlock.
       Less well known is the fact that the Senate also failed to 
     hold 4 votes on 24 Obama nominees for lifetime federal 
     judgeships who had been cleared by the Senate Judiciary 
     Committee. They are among 59 aspiring judicial appointees 
     whose nominations will expire when the 144th Congress fades 
     into history this month.
       Of the 24 nominees left stranded, three had been selected 
     to federal appeals courts, two for U.S. Court of 
     International Trade, and 19 for federal district courts. Some 
     of the nominees have been waiting for Senate action for 
     months, including U.S. district judge Lucy Haeran Koh, who 
     was nominated to the San Francisco Bay's U.S. 9th Circuit 
     Court of Appeals by Obama in February and recommended by the 
     committee in September.
       Sen. Patrick Leahy of Vermont, the ranking Democrat on the 
     Judiciary Committee, accused Senate Republicans of setting a 
     record for inaction on judicial nominations. Whereas the 
     Democratic-controlled Senate confirmed 68 of George W. Bush's 
     judicial nominees in the last two years of his presidency, 
     only 22 nominees had been confirmed in the comparable period, 
     Democrats note.
       Republicans countered by citing other statistics, such as 
     the fact that Obama has had more judicial nominees confirmed 
     overall than Bush did in his two terms--329 to Bush's 326.

  It is also true that the Democratic-controlled Senate ended its 
business in 2008 without having confirmed 26 Bush judicial nominees. 
Both parties have a history of refusing to act on highly qualified 
judicial nominees proposed by a president of the other party. Yet 
Leahy's indictment is on point.
  As with Senate Majority Leader Mitch McConnell's stonewalling the 
Garland nomination, the failure to act on the lower court nominations 
is extreme and inexcusable.

       As we noted above, it represents a partisan attempt to 
     prevent Obama from exercising his right, as the Constitution 
     puts it, to appoint judges by and with the advice and consent 
     of the Senate. Sabotaging the exercise of that authority is 
     offensive, not only because it undermines the Constitution 
     but because it perpetuates a partisan grudge match over the 
     Federal courts.

  It would be utterly understandable if Senate Democrats now retaliated 
by making it difficult for President-Elect Donald Trump to win 
confirmation for his judicial nominees, especially those slotted for 
seats that Obama had every right to fill. Democrats will be especially 
reluctant to support a Trump nominee to the Supreme Court who likely 
would move the court to the right after the Republicans cheated Obama 
out of his opportunity to shape the Court in a more liberal direction 
by appointing Garland.

       We recognize that the selection of Federal judges is an 
     inherently political process, one of which both Presidents 
     and Members of the Senate consider not only a nominee's 
     technical qualifications and legal philosophy but also his or 
     her ideology and party label. Even so, both parties need to 
     eventually find a way back to a state of affairs in which a 
     president, regardless of party, will receive prompt Senate 
     consideration of his judicial nominees and an affirmative 
     vote if they are well-qualified and not extreme in their 
     philosophy (as we fear some Trump nominees might be). That 
     should be the process, regardless of which party controls the 
     Senate.
       That is important because denying qualified judicial 
     nominees a vote harms the federal judiciary--by denying it 
     needed personnel and by telling lawyers who might aspire to 
     the bench that their nominations could languish for months 
     and ultimately perish not because of any failing on their 
     part but because of partisan gamesmanship. And it isn't 
     lawyers and judges who suffer. As White House Counsel W. Neil 
     Eggleston told the Washington Post: ``There is a real impact 
     on real people. There are people and companies who are not 
     having their cases heard because there are no judges 
     around.''
       Trump can make a significant gesture toward restoring a 
     measure of normality to the confirmation process. He should 
     resubmit the names of the nominees who received bipartisan 
     support in the Judiciary Committee but were left stranded 
     because of the delaying tactics of his fellow Republicans.

  This article is by Paul Gordon, titled ``Gorsuch and the Senate GOP's 
Alternative Universe.'' As I am reading these articles, let's not 
forget the basics. The basics are that 16 seats have become open on the 
Court in the history of the United States of America. Each and every 
time, up until last year, the Senate acted on the nominee put forward 
by the President. This is 9 of the 16. These are the nine that most 
resemble the situation we had with Merrick Garland, where the vacancy 
occurred before the election and the nomination occurred before the 
election.
  For example, with Merrick Garland, the vacancy was in February and 
the nomination was in March. It is not so different from the first name 
on the

[[Page S2302]]

list, William Johnson, under Jefferson, when the vacancy was in January 
and the nomination was in March.
  In each and every one of these cases--the cases that occurred where 
the vacancy was after the election and the nomination, obviously, was 
after the election as well--there were vacancies before the election 
but then the President waited to nominate until after the election, and 
those cases that are more like Merrick Garland, where both the vacancy 
and nomination occurred beforehand. In virtually every case--well, 
actually, in every case, in all 15 cases preceding the death of Antonin 
Scalia, the Senate acted.
  Of those 15, they confirmed 11 and they defeated 4. That brought us 
to last year. As you can see on this chart, there is no action for the 
first time in U.S. history. It wasn't just an alternative way of doing 
things. It was a strategy to pack the Court, to try to send the 
nomination into the future in the hopes that there would be a 
conservative President who would nominate a conservative member of the 
Court.
  I think most folks who are participating in this Court-packing scheme 
didn't really think it would work because it wouldn't have worked if 
Democrats won the Presidency or gained control of the Senate. They were 
considered at least to have a 50-50 shot at each. It was a surprise to 
everyone that suddenly we were where we are, but there was no decision 
even at that late date after the election that we could have had time 
to vet and vote on the nominee.
  There is a whole set of these nominations that occurred after the 
election. It would have been totally possible after the November 
election to go ahead and still at that point consider Merrick Garland.
  We wouldn't be in this deep, difficult hole right now had we done so, 
but we didn't. It was a deliberate strategy to pack the Court, which is 
now on the verge of succeeding if we go through with the vote this week 
and if the rules are changed.
  If the rules aren't changed, then we will do what has been done over 
the decades. If your candidate doesn't have the votes, they get 
withdrawn. You change the candidate. You don't change the rules. The 
rule of 60 votes to close debate is designed to ensure that there is 
some bipartisan support for the nominees being put forward.
  That is an important issue in terms of integrity of the Court. We 
have to resolve this stolen seat. One way we can do that is to say: 
Hey, we are going to put this on hold. We are going to put it on hold 
until the investigation is done with the President, and we are going to 
put it on hold until we have a second open seat. At that point, the 
President could propose Merrick Garland for one of the seats--the first 
seat where he should have been duly considered to begin with--and a 
judge for the second seat that is more to his liking, off of his list, 
if you will.
  That would get us out of this quagmire. That would protect the 
credibility of the Senate, and it would protect the legitimacy of the 
Court.
  This article, ``Gorsuch and the Senate GOP's Alternate Universe'' is 
by Paul Gordon.

       In their efforts to get the ultra-conservative Neil Gorsuch 
     onto the Supreme Court, Senate Republicans have moved beyond 
     creating ``alternative facts.'' They've created an entire 
     alternative universe.
       If Gorsuch has earned so little bipartisan support that he 
     cannot get the support of 60 Senators (as all six successful 
     nominees of the past three presidents were able to do), Mitch 
     McConnell is threatening to change the Senate rules to allow 
     Supreme Court nominees to be confirmed by party-line majority 
     votes. He and his colleagues portray Judge Gorsuch as 
     mainstream, the absence of consultation as bipartisanship, 
     and themselves as victims of unprecedented and unprincipled 
     partisan obstruction from the Democrats. Republicans don't 
     want to trigger the ``nuclear option,'' they claim through 
     crocodile tears, but will have no choice but to do so if 
     those mean Democrats insist on a 60-vote threshold.
       Listening to them, you'd think they were the injured party. 
     You'd never know that:
       Republicans refused to even hold a hearing for Merrick 
     Garland, President Obama's nominee for this very vacancy. To 
     justify this unprecedented move, they claimed that it had 
     been decades since any president was permitted to immediately 
     fill a vacancy that arose in a presidential election year. 
     They were careful not to mention the reason for that: It's 
     rare for justices to die in office, and Justice Scalia was 
     the only justice since 1950 to pass away during an election 
     year. The refusal to even consider Judge Garland for the 
     Supreme Court was unprecedented, a pure power play that drew 
     wide condemnation.
       Republicans insisted on a 60-vote threshold for three of 
     President Obama's D.C. Circuit nominees, regardless of who 
     they were, and even announced their demand before any 
     nominations were made. They made it clear that they would 
     block President Obama from filling any of the three vacancies 
     on the 11-member court. (It was this extreme, unprecedented, 
     unprincipled, and anti-democratic putsch that forced the 
     Democrats to drop the 60-vote requirement for lower court 
     nominees.)
       Republicans defended the 60-vote margin during the Obama 
     years as a safety mechanism to encourage presidents to 
     consult with Senators of the opposing party and select 
     judicial nominees with bipartisan support.
       Conservatives claim that Democrats should support Gorsuch 
     because his nomination was a culmination of the most 
     transparent Supreme Court selection process in history, since 
     Trump listed his potential nominations before the election.
       In fact, this may have been the least transparent selection 
     process in history, designed to lead to an extremist nominee 
     rather than one who could garner bipartisan support.
       Trump outsourced his Supreme Court selection to two of the 
     most influential and well-funded right-wing ideological 
     organizations in the country: The Federalist Society and the 
     Heritage Foundation. Their selection process is the one that 
     matters, and it was anything but transparent. What 
     conversations did they have with Gorsuch that led them to 
     include him on their list? When Sen. Blumenthal asked Gorsuch 
     if he'd had any conversations about Rowe v. Wade or abortion 
     in general with the Heritage Foundation, Gorsuch only said 
     that no such conversations had occurred after the election 
     (long after he'd been included on the list).
       We have seen transparent and bipartisan selection processes 
     before, and they looked nothing like what we have seen with 
     the current nomination. For instance, President Clinton 
     consulted closely with Orrin Hatch, then the ranking 
     Republican on the Judiciary Committee, before making his two 
     Supreme Court nominations. And that consultation was genuine: 
     Based on Sen. Hatch's advice, Clinton passed over his 
     original first choice, acting transparently and in a manner 
     to encourage bipartisanship.
       Republicans can posture as a principled, wounded party, 
     forced to trigger the nuclear option, but that simply isn't 
     reality. Since the death of Justice Scalia--indeed, since the 
     moment President Obama took office--they have time and again 
     escalated their partisan approach to the selection of judges. 
     They held Obama circuit court nominees to a 60-vote 
     threshold, then refused to allow votes at all on three D.C. 
     Circuit vacancies regardless of who they were, and then 
     refused to even hold a hearing for a Supreme Court nominee.
       Senate Republicans did not enter this presidency with clean 
     hands.
       And while much of the GOP obstruction since 2009 had 
     nothing to do with the nominees themselves, Democrats' 
     opposition to Gorsuch is based on his record. Democrats have 
     not said that they will oppose anyone who Trump nominates. In 
     fact, as Senate Minority Leader Chuck Schumer has said 
     numerous times, if Gorsuch cannot earn 60 votes, the solution 
     is not to change the rules, but to change the nominee.
       It's clear that Senate Republicans have created an 
     alternative universe worthy of a Star Trek episode.

  The Brennan Center for Justice published an article by Ciara Torres-
Spelliscy titled ``Neil Gorsuch Understands Campaign Finance--And 
That's The Problem.''

       It's Supreme Court prediction season with Tenth Circuit 
     Judge Neil Gorsuch's nomination to fill the late Antonin 
     Scalia's seat by President Trump (Or by whomever he 
     outsourced the job. I'm looking at you, Federalist Society 
     and Heritage Foundation.) Now everyone (including me) is 
     poring over his past decisions to see what they could mean 
     for the laws most in flux before the Supreme Court.
       I've hunted for clues about what Gorsuch believes about 
     money in politics. He presides at the Tenth Circuit, which 
     covers Wyoming, Colorado, Utah, New Mexico, Kansas and 
     Oklahoma. From a campaign finance perspective, most of the 
     cases come from Colorado, which has tried to improve its 
     campaign finance laws both through statute and by amending 
     its state constitution.
       Various aspects of the Colorado campaign finance laws have 
     landed in the Tenth Circuit, which is not known for being a 
     particularly hospitable venue for reformers. One 2014 case 
     called Riddle v. Hickenlooper has a concurrence written by 
     Gorsuch. So what can we learn from this opinion about his 
     style of judging, his views of campaign finance reform, and 
     what he might do if he is elevated to the Supreme Court?
       Riddle v. Hickenlooper involved three candidates vying for 
     a seat in the Colorado House of Representatives. There were 
     two major party candidates and one write-in candidate. 
     Individual contributions to the Republican and Democratic 
     candidates were capped at $400, while the limit for the 
     write-in candidate was $200. The reasoning for the law was 
     that major party candidates (typically) have to go through a 
     primary while minor and write-in candidates do not. The 
     write-in candidates sued, claiming that the lower cap was a 
     violation of contributors'

[[Page S2303]]

     rights under the Fourteenth Amendment's equal protection 
     clause. The district court dismissed the claim, saying that 
     contribution restrictions were constitutional. But a three-
     judge Tenth Circuit panel (consisting of two Republicans and 
     one Democrat) unanimously reversed the lower court, finding 
     that the disparities in contribution limits were, indeed, a 
     violation of the equal protection provision.
       Gorsuch took the time to write a separate concurring 
     opinion. What's encouraging about Gorsuch's opinion is that 
     he accurately discusses complex campaign law, and this takes 
     time and skill. Trust me, I've read plenty of lower court 
     opinions in campaign finance cases where the lower court 
     judges . . . can't follow the ins and outs of the exceptions 
     to the exceptions in campaign finance law.
       These details do not stump Gorsuch. He writes thoughtfully 
     and incisively about how the Supreme Court has been unclear 
     about exactly which level of scrutiny applies to equal 
     protection objections to differential campaign contributions. 
     In the end, he concludes that whether the standard is strict 
     scrutiny or intermediate scrutiny, the Colorado law cannot 
     justify allowing major party candidates to raise twice as 
     much as minor party candidates.
       Gorsuch also deserves credit for crafting his opinion 
     narrowly and taking the time to note the limits of the case's 
     holding. As he wrote, ``[h]aving said this much, it is worth 
     pausing to emphasize what isn't said in these pages. Nothing 
     in what I've suggested or what the court holds intimates that 
     Colorado must adopt a per-election-cycle rather than a per-
     election approach to the regulation of campaign 
     contributions.'' This limiting language appears to display 
     sensitivity to the fact that Colorado has great latitude to 
     choose its own means of election administration and campaign 
     finance. This shows judicial incrementalism and a laudable 
     degree of modesty.
       But there are a few words from Gorsuch's opinion which 
     should give campaign finance reformers pause. For one, he 
     wrote, ``[n]o one before us disputes that the act of 
     contributing to political campaigns implicates a `basic 
     constitutional freedom,' one lying `at the foundation of a 
     free society' and enjoying a significant relationship to the 
     right to speak and associate, both expressly protected First 
     Amendment activities.''
       In other words, Gorsuch is maintaining the link between 
     political money and free speech. He added, ``[t]he plaintiffs 
     before us don't complain that Colorado's contribution limits 
     violate their First Amendment rights because, say, the limits 
     are too low for everyone.''
       This last quote is ambiguous. It is not clear whether there 
     is an inadvertently missing word ``they'' before ``say'' 
     which would mean he was attributing this statement to the 
     plaintiffs in the case. But the way it is written sounds like 
     Gorsuch himself is saying that contributions are too low for 
     everyone. The limits at issue were $400 for major party 
     candidates and $200 for minor party and write-in candidates. 
     If this is his true belief, it would demonstrate hostility to 
     one of the basic pillars of campaign finance reform since 
     Watergate: modest contribution limits.
       So the good news is Gorsuch can navigate his way through a 
     tangle of precedent--a basic qualification for a jurist. The 
     bad news is he may harbor antipathy to regulating money in 
     politics. If Gorsuch is elevated to the Supreme Court, he can 
     help conservatives move the goal post to script scrutiny so 
     that Colorado's and other States' attempts to temper the role 
     of money in politics will be far more difficult to justify in 
     court.

  So let me return to where I started yesterday evening. We are facing 
three very significant problems. The first problem is that for the 
first time in history, we are considering a nominee for a stolen 
Supreme Court seat. That alone should be reason for everyone who cares 
about this institution to turn down this nominee and to convey to the 
President that the only legitimate nominee for this open seat is 
Merrick Garland, because as a Senate we have a stake in the legitimacy 
of our work and that of the Court. To confirm anyone but Merrick 
Garland to this seat confirms the Senate as the thief who took the seat 
for the first time in U.S. history and transported it to another 
President in an effort to pack the Court.
  Furthermore, if there is a person confirmed to this seat other than 
Merrick Garland, it will cast a shadow over every 5-to-4 decision that 
individual participates in, in the years to come. It destroys the 
public credibility of the position. It makes the Supreme Court simply 
into a political body to which clever campaign tactics have delivered a 
majority for one ideological vision over another. Let's not enter into 
that position of destroying the credibility of the Senate process and 
the integrity of the Court in one fell swoop.
  Second of all, we should not be considering a nominee from a 
President who is under investigation for conspiring with Russia to 
change the outcome of an election. We don't know where those 
investigations will lead, but what we do know is that this places a big 
cloud over the legitimacy of him holding the office. Let's clear up 
that cloud. Let's answer the questions that were raised when, a week 
ago Monday, FBI Director Comey came to Capitol Hill to talk to the 
House and say: Yes, those investigations are underway.
  We know what the diabolical practices of the Russians were. We know 
they created fake news. We know they had a team of roughly 1,000 people 
sending out contrived social media messages to comment on the events of 
the day, to make it look like American citizens were commenting and to 
make one candidate look very good and the other candidate look very 
bad.
  Finally, this is an extreme nominee from the far right who does not 
believe in the fundamental vision of ``we the people'' and makes 
decision after decision through tortured, twisted, contrived arguments 
to find for the powerful over the people. That is unacceptable.
  The PRESIDING OFFICER (Mr. Cotton). Under the previous order, the 
time until 11 a.m. will be controlled by the majority.