[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2353-S2358]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  Ms. STABENOW. Mr. President, I rise this evening to talk about an 
issue that will affect families all across Michigan, which is the 
nomination of Judge Gorsuch to the Supreme Court. He has a long record 
of siding with special interests and institutions instead of hard-
working Americans, and this is of great concern to me. That matters.
  I am concerned with his rulings that fail to protect children and 
students with disabilities in schools, and I am worried that he will 
limit access to critical healthcare for women and that he is not a 
mainstream candidate. I can't support a nominee whom I believe is 
disconnected from the challenges faced by families in Michigan and 
across America every day.

  There is one important example which relates directly to someone from 
Michigan that Judge Gorsuch has ruled on. People from Michigan have 
been hurt by Judge Gorsuch's narrow judicial philosophy.
  In 2009, a Michigan truckdriver named Alphonse Maddin was trying to 
complete a shipment driving all night, and his brakes froze in subzero 
temperatures--which we have. The heater in his cab broke as well. He 
called his company to report the issue and waited for help to arrive.
  While he was waiting for hours in the freezing subzero temperatures, 
he realized he was having trouble breathing and his body was going 
numb. He called his company to report that he needed to get somewhere 
warm, but they told him he needed to either wait for the repair person, 
or drag his trailer even though the brakes were frozen. Worried he 
might freeze to death, he finally unhitched the trailer from his truck. 
Mr. Maddin drove off to seek help, returning in just 15 minutes with 
assistance. He did what any of us faced with a life-threatening 
situation would do.
  A week later, Mr. Maddin was fired from his job, even though he was 
transparent in his actions and completed his delivery. He completed his 
delivery, despite the issues caused by his frozen brakes and the broken 
heater.
  Two different entities within the Department of Labor ruled that what 
the trucking company did was illegal, and that Mr. Maddin was protected 
under Federal law because his life was in danger. Thankfully, a 
majority of the Tenth Circuit judges agreed. Judge Gorsuch, however, 
disagreed, arguing the law did not protect workers who drove away to 
avoid freezing to death.
  According to Judge Gorsuch's interpretation, Mr. Maddin would have 
had to choose between his job and his life. What is deeply concerning 
to me is that when he was asked at his nomination hearing what he would 
have done, he said he really hadn't thought about it. Judges should 
think about what is happening to people in situations as they are 
ruling in a fair and impartial way. This does not look like the ruling 
of a mainstream nominee.
  His rulings don't only affect Michigan workers. I am very concerned 
about Judge Gorsuch's rulings on legal protections for individuals with 
disabilities. We passed the Individuals with Disabilities Education Act 
to make sure that children with disabilities got the education they 
deserved, and that the education would be free and available to all 
children.
  Luke, a young boy from Colorado with autism, was not able to receive 
the education he needed from his public school. His parents were able 
to enroll him in a private residential program specializing in children 
with autism that was more suitable for his needs so he could get what 
he needed for his development.
  His parents applied to the school district for reimbursement, as was 
appropriate, but the school district refused. His parents went to 
court, and an administrative judge and a district judge both ruled that 
the school did not provide Luke with the necessary education to meet 
the needs that IDEA required. However, Judge Gorsuch ruled in favor of 
the school district, saying that all the school district had to do was 
provide an education that was more than just the bare minimum--just the 
bare minimum. He set a very low bar for Luke and for students like 
Luke, like my nephew Barry.
  Just to show how disconnected Judge Gorsuch is from the lives of 
everyday Americans, look at the Supreme Court ruling which occurred at 
the same time as Judge Gorsuch's confirmation hearings. In a different 
case on the very same issue, the Supreme Court challenged and rejected 
the standard and interpretation that Judge Gorsuch believed should be 
provided for children and students with disabilities. They unanimously 
rejected the standard that he approved. This is not the view of a 
mainstream nominee. This is not the view of a mainstream nominee.
  I am also deeply concerned about Judge Gorsuch's opinions and how 
they could affect women's access to healthcare. In the Tenth Circuit's 
Hobby Lobby decision, Judge Gorsuch endorsed the idea that corporations 
can deny their employees access to essential healthcare services, 
including birth control. His concurring opinion suggested that he 
supported the notion that for-profit corporations have the right to 
deny women insurance coverage or any form of contraception an employer 
disagrees with. This is both alarming and unacceptable. It once again 
shows how disconnected Judge Gorsuch is from what women in Michigan and 
around the country experience.
  Judge Gorsuch did not recognize the impact of denying coverage to 
women employees and their families, and putting those decisions in the 
hands of their employers. Women in Michigan should not have to pay 
higher costs for healthcare than men, and they should not be denied 
essential healthcare services. These dangerous interpretations will 
continue to take us down a path of permitting and protecting 
discrimination by corporations and institutions over the rights of 
workers and consumers. Again, that is not a mainstream nominee.
  When it comes to supporting women--not just in healthcare, but in the 
workplace--Judge Gorsuch has had some extremely troubling rulings. In 
2003, a woman named Betty Pinkerton experienced several instances of 
disgusting sexual harassment from a male supervisor at the Colorado 
Department of Transportation. Every time she made it clear his comments 
were not acceptable in any way, they continued over the course of 
months.
  She went to her office's civil rights staff and submitted a written 
complaint, and he was removed as her supervisor. She was fired about a 
week

[[Page S2354]]

later. She sued. But Judge Gorsuch upheld a ruling that claimed she 
waited too long--she waited too long to report harassment--and believed 
that Pinkerton's firing was performance based--How often do we hear 
that in these situations?--despite not being able to produce any real 
evidence that this was the case. He ruled that she couldn't go to trial 
and present her case in front of a jury.
  So when it comes to protecting women in the workplace, we know that 
Judge Gorsuch has come up short. This is not a mainstream position and 
not acceptable, in my judgment, for any Supreme Court nominee, and not 
acceptable for what I want to see happen for the people in Michigan.
  I wish to end my speech on the importance of consensus because that 
is what we should do here. That is how we get things done.
  For decades, we have confirmed our Supreme Court nominees with 
consultation and consensus. We have said--and I think it is the right 
thing--that we should have to have more than just a simple majority to 
confirm judges to the highest Court in the land for a lifetime 
appointment. So it makes sense that we come together to do that. In 
fact, seven of the eight current U.S. Supreme Courts Justices on the 
bench today received 60 votes or more somewhere in their process--both 
President Bush's and President Obama's nominees, as well, those now on 
the Court.
  President Clinton, President Bush, and President Obama talked to 
Senators from both parties about their picks to get input as to whom 
would likely be supported and not supported. This did not happen with 
Judge Gorsuch. President Trump had a list chosen by very narrow special 
interests and did not ask opinions of key people on our side of the 
aisle as to what would make sense to get the consensus to get 60 votes.
  I do not believe Judge Gorsuch will be fair and impartial, giving a 
fair shot to the workers and families in Michigan as well as around the 
country. My test is very much about what is best for the people I 
represent in Michigan. Who will be fair and impartial and give them a 
fair shot?
  Because I do not believe he can do that, I cannot support his 
nomination. He is not the right choice for this vacancy. We can come 
together. I urge my colleagues to go back to the drawing board and 
bring in a consensus mainstream nominee.
  In the past, we have basically had a practical rule of saying if the 
nominee cannot get 60 votes, we change the nominee. We don't change the 
rules. It is extremely concerning that this would not be the approach 
at this time.
  I urge that we come together, get a mainstream nominee, and be able 
to work together to get this done.
  The PRESIDING OFFICER (Mr. Gardner). The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I rise this evening to speak about the 
nomination of Judge Gorsuch to be an Associate Justice of the U.S. 
Supreme Court.
  Every Member of the United States Senate has an obligation to review 
this nomination thoroughly and to make a determination. I believe the 
advice and consent duty of a Senator--certainly in my case, when I make 
decisions about any judge for confirmation, but especially for the 
Supreme Court--has to be a decision grounded in a review of a number of 
considerations. I think they are generally the same no matter who the 
nominee is, but sometimes they can vary. I think in this case there are 
probably additional considerations that I weighed.
  Of course, we want to look at the nominee's character and their 
integrity, certainly their judicial temperament. Someone can be very 
capable as a judge and very learned in the law, but they may not have 
the temperament or the integrity.
  I don't think there is any question that there is nothing in the 
record that indicates that Judge Gorsuch doesn't have the experience or 
the character and integrity to do this job, and to do it with the kind 
of temperament we have the right to expect from any judge.
  I also believe at the same time, though, that you have to do a review 
of the cases decided by the nominee--in this case, a judge on the Tenth 
Circuit Court of Appeals, a very similar kind of job to that which the 
Supreme Court Justice does. You are reviewing cases on appellate court. 
In Judge Gorsuch's case, it is the Tenth Circuit--not the Supreme 
Court, but still appellate court decisions.
  Part of that inquiry I believe is a review of an assessment, really, 
of this individual's judicial philosophy. That is where I will spend 
most of my time tonight. I will also talk about the rule change that 
might be upon us.
  While reading Judge Gorsuch's opinions, I developed very serious 
concerns about his rigid judicial philosophy. Judge Gorsuch's opinions 
indicated, in my judgment, an extremely conservative judicial 
approach. This leads him to come down disproportionately on the side of 
powerful interests, against workers in many cases, and consumers in 
other cases--a cause for particular concern at a time when the Supreme 
Court itself, under Chief Justice Roberts, has become an ever more 
reliable ally to big corporations.

  A major study published by the Minnesota Law Review in 2013, found 
that the four conservative Justices currently sitting on the Court are 
among the six most business friendly Supreme Court Justices since 1946. 
A review by the Constitutional Accountability Center shows the 
consequences of the Court's corporate tilt, finding that the national 
Chamber of Commerce has had a success rate of 69 percent in cases 
before the Roberts Court, a significant increase over previous courts. 
These are cases of serious importance to everyday Americans--cases 
involving rules for consumer contracts, challenges to regulations, 
ensuring fair play in labor standards, and attempts by consumers to 
hold companies accountable for product safety and much more.
  Another concern I have about his nomination is that at some point in 
the campaign of last year, the Republican nominee was given a list of 
names from which he should choose, were he to be elected President. I 
would hope that there would be a list of names that any President would 
consider beyond what we are told in published reports was just 21 
names, developed by organizations on the far right. And that fact alone 
causes me great concern--that the President is permitted, according to 
this arrangement, this understanding, only to consider a list of 21 
names that those organizations developed.
  The record of this judge indicates also that he would only exacerbate 
the problem that I pointed to with regard to the corporate tilt of the 
current Roberts Court. In my judgment, by doing so, it would further 
stack the deck against ordinary workers and families. It starts with 
his basic judicial philosophy. He employs the narrowest possible 
reading of Federal law and shows extreme skepticism--even hostility--
toward executive agencies or what some might call administrative 
agencies, agencies that carry out the law in areas like labor or 
consumer protections and the like.
  Many have expressed concerns about his opinion in the Hobby Lobby 
case, where Judge Gorsuch endorsed the idea that owners of for-profit 
corporations can assert corporate religious liberty rights, opening the 
door potentially to widespread discrimination against LGBT Americans 
and other Americans as well. But a variety of other cases are equally 
illustrative of Judge Gorsuch's troubling approach to the law.
  I will give you just a few examples. One case involved the tragic 
death of a trench hand who was electrocuted while working as part of an 
excavation crew. The court reviewed a ruling by the Department of 
Labor, punishing the mining company for failing to provide proper 
safety training to the worker. Judge Gorsuch mocked the Department of 
Labor's ruling as nothing more than a ``Delphic declaration'' devoid of 
necessary proof, and he concluded that the agency was wrong to penalize 
the company following the worker's death. Fortunately, a majority of 
the Tenth Circuit disagreed and affirmed the Department of Labor's 
ruling.
  Another case involved a truckdriver who was stranded on the side of 
the road at night in subzero temperatures, with the brakes on his 
trailer frozen and the heater in his cab broken. He called dispatch for 
help multiple times, but after hours of waiting in the freezing cold, 
this truckdriver was having

[[Page S2355]]

trouble breathing, and his torso and his feet were numb. Worried about 
his safety, he unhitched his trailer, drove the truck away, and then 
later the company fired him for abandoning the trailer.
  Three different authorities within the Department of Labor ruled 
against the company. Judge Gorsuch disagreed, parsing a Federal statute 
to argue that the driver was not protected in his decision to drive 
away, despite the risk of freezing to death if he stayed put. Again, 
fortunately, the majority of the Tenth Circuit Court disagreed, 
describing the judge's labored interpretation of the statute as 
``curious,'' and ruling in favor of the truckdriver.
  I have a basic disagreement with Judge Gorsuch's rulings regarding 
the legal protections for individuals with disabilities, especially 
students with disabilities. In one case, he ruled against parents who 
believed their autistic child was not receiving an adequate education 
at his public school. A hearing officer, an administrative law judge, 
and a U.S. district court all found in favor of the family, ruling that 
they were entitled to reimbursement for tuition at a residential 
program tailored for children with autism.
  Judge Gorsuch reversed the rulings and, instead, articulated an 
extremely narrow interpretation of Federal law--this particular Federal 
law that protects students with disabilities, the IDEA law, the 
Individuals with Disabilities Education Act.

  In 2004, Congress amended the IDEA, in part, based upon findings that 
its implications have been ``impeded by low expectations.'' 
Nevertheless, Judge Gorsuch ruled that because the student in this case 
made some progress in public school, even though he could not 
generalize his learning to settings outside of school--which is the 
goal of the Individuals with Disabilities Education Act--the family, 
the judge believed, was not entitled to tuition reimbursement. That 
decision happened a number years ago.
  It just so happens that the U.S. Supreme Court, the current Court 
with only 8 members, voted 8 to 0 against the basic position that Judge 
Gorsuch had in that education case--a different case but the same 
question about what is the duty owed by a school district to a child 
with a disability. That ruling happened to be announced during the week 
that Judge Gorsuch was in front of the Judiciary Committee--in fact, on 
one of the very days he was in front of the committee. A unanimous 
Court disagreed with his approach to those kinds of cases involving 
children with disabilities in a public school.
  These cases and others are illustrative of a broader trend in the 
judge's jurisprudence, whether it is a case involving an employee 
seeking redress for work place discrimination, hospital staff fighting 
for back pay after an unlawful reduction in the work hours, or a victim 
of improper conduct by a medical device company looking for justice. 
Judge Gorsuch's approach produces rulings disconnected from the lived 
experience of those they impact.
  Therefore, after review of many of his cases, after consideration of 
his judicial philosophy, and after a review, as well, of the current 
state of this Court--especially the corporate tilt of this current 
Roberts Court--I have concluded that I could not support Judge 
Gorsuch's nomination to the Supreme Court.
  I wanted to add some comments before concluding tonight about what 
this vote may mean to the Senate and the rules of the Senate. It is my 
belief--others, of course, disagree--but it is my belief that if you 
seek to become an Associate Justice on the most powerful Court in the 
world, you ought to be able to garner the support of at least 60 
members of the U.S. Senate. If your nomination to the Court is the 
subject of such consensus, you ought to be able to get 60 votes in the 
U.S. Senate. If both your nomination and your judicial philosophy is 
seen as such a mainstream nomination, you ought to be able to get 60 
votes. Despite that, it is a point in time when we are having a debate 
about how we arrived at this question of a potential change in the 
rules. I believe that the reason we got here is because of substantial 
and unyielding obstruction by Republicans in the U.S. Senate over a 
number of years.
  Just consider this: From the founding of our Nation, through 
President Obama's first term when Senate Republicans were in the 
minority, cloture--the motion to cut off debate and proceed to a final 
vote--has been filed in a total of just 147 nominations. Just 147 times 
in the total history of the U.S. Senate, the minority forced the 
majority to file cloture. Of all the Presidents before President Obama 
combined, cloture needed to be filed only on 68 of these nominations, 
but in President Obama's first term before Republicans took the 
majority of the Senate, Republicans refused to consent to votes and 
forced the Democratic leader to file cloture on 79 nominations--over 50 
percent of all the cloture motions ever filed on nominations in the 
history of the U.S. Senate. So half of those cloture petitions were 
filed just in the last couple of years. That doesn't even include what 
I think was an outrageous obstruction that continued once Republicans 
took the majority, culminating, of course, in their refusal to consider 
Judge Merrick Garland's nomination. So Judge Garland, of the District 
of Columbia Circuit, the chief judge who had great support, I think, on 
both sides of the aisle--Judge Garland had maybe a few meetings, no 
vote, and not even a hearing before the Judiciary Committee.
  According to the Congressional Research Service, President Obama is 
the only one of the five most recent Presidents whose first term was 
marked by nominations that languished for over half a year on average. 
Also in his first term, he was the only President of the previous five 
under whom the district court vacancies increased, unaccompanied by the 
creation of new judgeships to meet the demand. In fact, President 
Obama's district court nominees, during his first term, waited an 
average of 60 days longer for confirmation than those of President 
George W. Bush.
  I think the evidence is overwhelming. Senate Republicans' obstruction 
of judicial nominations reached historic levels under President Obama. 
So we are here at this point, and we have to make a decision. My vote 
will be to insist on 60 votes; therefore, I will be voting no on 
cloture and also voting no on the nomination of Judge Gorsuch.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I come to the floor to join my 
colleagues in speaking on the nomination of Judge Neil Gorsuch to serve 
as an Associate Justice on the Supreme Court. As you know, Senators 
have a solemn obligation to advise and consent on a President's nominee 
for the Supreme Court, and I take that obligation very seriously.
  My goal during the hearing as a member of the committee was to 
understand the judge's view on the law, his judicial record, and his 
philosophy. We needed to know what kind of Justice he would be and what 
that would mean for Americans.
  Although many cases decided by the lower courts are less complicated, 
even though some of them are complicated, many of them are more 
straightforward than the ones that come before the Supreme Court. The 
cases that go before the Supreme Court are the hardest cases. They 
involve the most complicated legal gray areas.
  I have heard my colleagues many times talk about some of the 
unanimous decisions that the judge was involved in. I know that. But 
when I look at the kinds of cases that come before the Supreme Court, 
those are different kinds of cases. As I looked over the judge's 
record, I tried to focus on situations where he faced hard cases like 
those he might decide as a Supreme Court Justice. In my mind, the 
question was this: What would Judge Gorsuch do if he were appointed to 
the Supreme Court? What kind of philosophy would he have?
  In difficult cases, one judicial approach is to try to find consensus 
by ruling on the narrowest possible grounds. Judge Merrick Garland, who 
was nominated last year, was known and praised for that approach by 
Senators on both sides of the aisle.
  Congress actually provides a helpful analogy. When Democrats and 
Republicans pass legislation, we try to find common ground. We often 
have different views, but we do find areas of consensus. Sometimes that 
ground is narrow, but we can find agreement and then come together.

[[Page S2356]]

  In reviewing the judge's record, I saw that he often took a different 
approach, one where he often tried to go a step further than the 
consensus opinion, sometimes really further than the consensus opinion 
by suggesting a provocative change in the law or by making a broader 
ideological leap, which I felt was not consistent with the precedent 
and was not consistent with the kind of philosophy of a judge that, 
regardless of their political beliefs--I did not expect to agree with 
everything he said or how he answered the questions, but what I saw was 
a strikingly different philosophy.
  Many of the judge's opinions presented opportunities for narrow 
judicial consensus, but the judge decided more than the case in front 
of him. That is what concerns me if he were to be confirmed to the 
Supreme Court, where he would have to decide the toughest cases and 
hardest legal questions facing our country.
  So after thorough examination and consideration of his answers and 
the record, I have decided not to vote in favor of the judge's 
nomination. His judicial approach and his record on critical cases, 
including the rights of children with disabilities, campaign finance, 
and preserving health and safety protections, have led me to conclude 
that I cannot support his nomination to the Supreme Court.
  Let me make this clear. Again, I did not expect to agree with every 
opinion he wrote or everything he said. I certainly did appreciate the 
introductions of the Presiding Officer, as well as Senator Bennet, and 
the support he had from Colorado. That meant something to me. But then 
when I looked at the record, what I saw time and time again was a judge 
who clearly demonstrated the contrast between a narrow consensus-based 
approach and a more far-reaching one.
  One area where the judge has gone further to issue broad rulings that 
would have profound consequences on people's lives is in the case he 
decided on children with disabilities. During the hearing, because this 
case had been decided by the Supreme Court right before I got to ask 
questions, I asked a lot of questions about this case on the IDEA, also 
known as the Individuals With Disabilities Education Act.
  The IDEA was passed to ensure that students with the disabilities are 
supported in school. In my State, 124,000 children rely on this 
critical protection. I occupy the Senate seat once held by Minnesota's 
own Hubert Humphrey--someone who, of course, was never at a loss for 
words. In fact, this very desk that I am standing behind was the desk 
Hubert Humphrey signed and used. He delivered a speech 40 years ago, 
and one line of that speech is just as appropriate today as it was back 
then.
  He said: ``The moral test of government is how that government treats 
those who are in the dawn of life: the children; those who are in the 
twilight of life: the elderly; and those who are in the shadows of 
life: the needy, the sick, and the disabled.''
  The Supreme Court has honored that principle. On the day of the 
judge's hearing, the Supreme Court, in an 8-to-0 unanimous decision, 
ruled against the narrow interpretation of the IDEA embraced by Judge 
Gorsuch--an interpretation that limited the educational opportunities 
of children with disabilities. I could not agree with the 8-to-0 
decision more.
  All children, particularly those with disabilities, deserve the tools 
they need to succeed in life, and every Justice on the Supreme Court 
has a duty to protect these kids. So when the Supreme Court ruled that 
morning and overturned the standard that the judge had embraced in this 
Tenth Circuit case, I asked him about his ``merely more than de 
minimus'' standard that he wrote into that opinion back in 2006.
  In explaining his ruling, the judge said that he was bound by 
precedent to use the narrow standard that he used in that case. He 
cited a 1996 case from the Tenth Circuit--his circuit--that he said he 
was bound to follow. Now, he was not on the court back in 1996, but 
when he did the case in 2006, he used that 1996 case. So I looked at 
that case.
  During the hearing and at the Judiciary Committee business meeting 
earlier this week, my Republican colleagues repeated those words. They 
said that the judge was bound by precedent to use his narrow, ``merely 
more than de minimus'' standard that had, in fact, been rejected by the 
Supreme Court just this past month. So I looked to see if, in fact, 
that was true. Was he truly bound by precedent? That is pretty 
important to me. There have been a number of decisions where he has 
gone much further than he needed to, where he, in my mind, has 
abandoned precedent.
  I thought, well, here we have a case that is fresh, right before us, 
and he has said that he was simply following the precedent, that he had 
no choice at all. Here is what I found: While the 1996 case made a 
number of findings and concluded that the school district satisfied the 
requirement in the IDEA statute of providing an appropriate education, 
the case never actually turned on the standard that the judge said he 
was bound by, that the judge said was precedent. Here is why: The 1996 
case only mentioned the de minimus standard once. It was a passing 
reference. Even in that mention, the de minimus language is from a 
different circuit; it was from the Third Circuit.
  In that 1996 case that he claimed he was bound by and that my 
Republican colleagues keep mentioning that he was bound by, there is no 
discussion about whether the benefits provided to the high school 
student satisfied that standard. The case simply did not turn on the de 
minimus language. I know this seems in the weeds, but the court in 1996 
never relied on the de minimus standard to reach the result that it 
did.
  Was that enough? No. In the one passing mention in the 1996 case, 
which was not binding, the language actually says ``more than de 
minimus,'' but the judge went out of his way to add the word ``merely'' 
to that standard, which had never even been in the case that was not 
binding on him to begin with. So he changed it and said ``merely more 
than de minimus,'' that that is all the kind of education a kid with 
disabilities in that school district in Colorado would have to get. 
This is like if you say more than empty--the gas tank is more than 
empty, which means it could be a lot more than empty. Adding ``merely'' 
puts it closer to empty. You just say it is merely more than empty. The 
addition of a single word made it more difficult for children with 
disabilities to get help at school.
  That is why it is hard for me to understand why the judge said that 
the ``merely more than de minimus'' standard was binding on him when he 
wrote that opinion in 2006. It was not. He added the word ``merely,'' 
and then he used a standard that did not even decide that 1996 case; 
that was from a different circuit.
  When interpreting the IDEA, the judge once again went a step further 
instead of deciding the case on a narrow ground. That matters because 
decisions like this have a dramatic impact on the lives of children and 
families, which is exactly what Justice Roberts noted when he wrote the 
opinion 8-to-0 rejecting the standard that Judge Gorsuch had used.
  I have heard from families in my State, and so many of them tell me 
how IDEA has made a real difference for them.
  My mom taught second grade in the Minnesota Public Schools until she 
was 70 years old. I know from her how much she worked with those kids 
with disabilities and how much she cared about them.
  Here is an example I just learned about from my State. A mom from 
Watertown, MN, told me about her son, who was born with Down syndrome. 
She is so thankful for IDEA because its protections ensures that he can 
have everyday life experiences. IDEA allows her son to be fully 
integrated with the rest of the students in his school. As a result, he 
has made many friends and built a strong social network. When she asks 
her son whether he likes school, he always says, in a resounding voice: 
Yes. Those are the stakes of this legal debate.
  Second, I wanted to focus on campaign finance. In my view, one of the 
most troubling court decisions in recent years is Citizens United. 
Since Citizens United, dark money has been spent in extraordinary sums, 
adding up to an estimated $800 million in just the past 6 years. This 
continues to have an outsized influence on our politics, distorting our 
representative democracy and hurting, in my mind, campaigns on both 
sides of the aisle.

[[Page S2357]]

  How does this apply to the judge? It applies to the judge because of 
an opinion he wrote that is very relevant to this area of the law. That 
case, which is called Riddle v. Hickenlooper, is a narrow case about 
how campaign finance laws apply to certain kinds of contributions in 
Colorado, about if they are a major party or not major party.
  The judge again decided that a narrow consensus decision was not 
enough. It was part of that decision, but then he went out of his way 
to write a separate concurring opinion to suggest that the court 
should, in fact, apply strict scrutiny to laws restricting campaign 
contributions. If the Supreme Court adopted the approach in the judge's 
opinion, it would compromise the few remaining campaign finance 
protections that are still on the books, and it would make it even more 
difficult for Congress to pass future reforms.
  The notion that Congress has little or no role in setting reasonable 
campaign finance is in direct contradiction with where the American 
people are. In recent polls, over three-quarters of Americans have said 
that we need sweeping new laws to reduce the influence of money in 
politics. While polls may not be a judge's problem and should not be a 
judge's problem, democracy is. When unlimited, undisclosed money floods 
our campaigns, it drowns out the people's voices, and it undermines our 
elections and shakes the public's trust in the process.
  My colleagues and I repeatedly asked the judge about his views on 
campaign finance laws and public disclosure requirements. He declined 
to tell us what the proper legal standard would be for evaluating 
campaign finance laws. He also would not give us a real sense of his 
views on public disclosure of campaign contributions, although a 
majority of current Justices support this.
  During our exchange on campaign finance, I was reminded of Justice 
Scalia's support for greater public disclosure and his comments on that 
topic. Justice Scalia said:

       Requiring people to stand up in public for their political 
     acts fosters civic courage, without which democracy is 
     doomed. For my part, I do not look forward to a society 
     which, thanks to the Supreme Court, campaigns anonymously and 
     even exercises the direct democracy of initiative and 
     referendum hidden from public scrutiny and protected from the 
     accountability of criticism. This does not resemble the Home 
     of the Brave.

  The most striking example of a judge choosing not to decide a case 
narrowly based on the facts was the one last year in which he wrote the 
opinion and then wrote a concurrence to his own opinion. As I noted at 
the Judiciary hearing, it is better to write a concurrence to your own 
opinion than write a dissent to our own opinion. But still he felt 
compelled to write a concurrence to what was an opinion that he wrote. 
Mostly, judges are happy when they get their peers to agree to a 
decision, but in this case, he went a step further.
  In Gutierrez--the name of the case--the judge went beyond the facts 
to suggest overturning the long-established precedent of Chevron.
  Chevron is a 33-year-old Supreme Court case that ensures that the 
most complex regulatory decisions are made by the experts who are best 
equipped to handle them, not by judges or lawyers without any relevant 
technical knowledge.
  Justice Scalia again embraced the Chevron doctrine, and it has been 
used in more than 13,500 decisions. Chevron ensures that Federal 
health, safety, and education rules stay on the books. These rules 
protect everyone, from the hard-earned pension of an hourly Minnesota 
grocery store worker, to the clean water in our Great Lakes, to the 
difference between life and death for Minnesota iron ore workers.
  The judge's approach would have titanic, real-world implications on 
the daily lives of Americans. When the judge wrote an opinion that 
suggested it might be time to ``face the behemoth,'' he suggested a 
change in the law that would jeopardize countless rules, compromise 
important protections, and create widespread uncertainty in our laws.
  I asked the judge about the uncertainty that would result from 
overturning Chevron. I asked what he would replace it with. I didn't 
get a direct response. The judge even said that he ``didn't know what 
all the consequences would be'' and that he ``wasn't thinking about 
being a Supreme Court justice'' when he was writing the decision.
  So what does all of this mean? It means that the judge has repeatedly 
gone beyond the facts of the case, issuing separate concurrences with 
far-reaching effects or, as in the disability decision, writing 
opinions with profound consequences.
  When I read these opinions, I am reminded of Justice Byron White, who 
I know Judge Gorsuch clerked for and greatly admired. Justice White has 
been described by many as a Justice who was focused on deciding only 
the case in front of him. Here is a quote: ``Time and again, Justice 
White avoided broad, theoretical bases for a decision, when a narrow, 
fact-specific rationale would suffice.''
  There is a reason we have judges to apply the law to the facts of a 
case. It is because answers aren't always as clear as we would like 
them to be, and sometimes there is more than one reasonable 
interpretation of the law. The cases that get to the Supreme Court are 
not the ones where everyone agreed at the lower court level. They are 
the really hard cases.
  It is that discretion in making those decisions that makes it so 
critical that Justices interpret the law evenly, without fear or favor 
and with the humility to recognize the gravity of the office, to 
respect the role of the judiciary, and to understand the impact of 
their decisions on people's lives.
  As I look back at the judge's record and his answers in the hearing, 
I am again reminded that it wasn't a law professor or a Federal jurist 
who was helped by a court's reliance on Chevron in interpreting a Labor 
Department rule. It was an hourly Minnesota grocery store worker who 
got to keep his hard-earned pension after the Eighth Circuit Court 
relied on Chevron.
  When the Supreme Court stripped away the rules in the Citizens United 
case that opened the door to unlimited super PAC spending, it was not 
the campaign financiers or the ad men who get paid to write these ads 
who were hurt. It was the grandma in Lanesboro, MN, who actually 
thought it mattered when she sent her Senator a $10 campaign 
contribution.
  When Chief Justice Roberts wrote the unanimous opinion just this past 
month, rejecting the ``merely more than de minimis'' standard that 
Judge Gorsuch had used to limit the help kids with disabilities can get 
at school, the Justice said: ``When all is said and done, a student 
offered an educational program providing `merely more than de minimis' 
progress from year to year can hardly be said to have been offered an 
education at all.'' That is what the Supreme Court said about how the 
standard that Judge Gorsuch wrote in his opinion in the Tenth Circuit 
affected students with disabilities.
  In the end, I believe we need Justices who understand that the law is 
more than a set of dusty books in the basement stacks of a law library. 
It is the bedrock of our society. Above all, we need Justices who 
understand and will uphold the motto on the Supreme Court building, to 
ensure all Americans achieve ``Equal Justice Under Law.''
  That is why I won't be supporting the judge's nomination to be an 
Associate Justice of the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. SCHATZ. Mr. President, what is the purpose of the Senate? The 
authors of the Constitution laid the foundation of the Senate without 
really knowing what it would look like once it was standing. They knew 
it would rival and restrain the House of Representatives. After all, 
the Senate has a higher age requirement, Members serve 6-year terms, 
and they have to represent not just a district but an entire State. But 
it was clear from the beginning of the formation of the Senate that it 
would take time before the purpose of this body was truly realized.
  For several decades in our Nation's history, it was the House of 
Representatives--not the Senate--that hosted the great debates and 
introduced major legislation. It wasn't until the Nation began to 
splinter in the shadow of slavery that the Senate came into its own. 
While the rules of the Senate gave us its basic structure, it was the 
Members of the Senate--the people who made up this body--who had to 
stand up and lead. We remember them today as lions

[[Page S2358]]

of the Senate: Daniel Webster, John Calhoun, and Henry Clay. This body 
owes its status to them and their leadership because they began to 
define the Senate in a way that no one had before.
  Over time, this place became one that valued bipartisanship, 
deliberation, and compromise. It has become a Chamber that balances the 
right to debate with demands for action.
  In some of the toughest moments in our history, the Members of the 
Senate have used this body to lead, particularly when the President has 
faltered.
  Take President Nixon. The Watergate scandal had weakened the 
Presidency in ways that do-nothing Presidents never had. But the 
Senate, led by a Member of the President's own party, didn't stand by 
and watch the void, unmoved. They filled the vacuum for the good of the 
country.
  It is this kind of history that has shaped the Senate into what it is 
today, a body that examines, considers, and protects.
  Senator Byrd, the longest serving Senator in U.S. history once said: 
``The Senate is a source of wisdom and judgment--both on the actions of 
the lower house and on the executive.''
  That is what the Senate is for. That is our purpose. We achieve that 
purpose through customs and traditions; through members who serve 6-
year terms and represent whole States; through rules that force 
bipartisanship, deliberation, and compromise.
  Now the majority leader has placed one of those rules on the chopping 
block because they can't get to 60. He can't find the 60 votes needed 
to end debate on the President's nomination to the Supreme Court.
  We shouldn't be surprised to find ourselves here because, after all, 
back in February, President Trump told the majority leader to change 
the rules if he had to. Now, as this administration closes in on its 
first 100 days without passing a single piece of major legislation, the 
Senate majority leader is ready to fulfill the President's request and 
change the rule, instead of changing the nominee.
  The question I have for this body is this: Should we change the rules 
in order to give the President a win before spring break? Should we be 
weakening the Senate at a time when the executive branch is so weak? 
Isn't it our obligation to assert ourselves into this void, instead of 
receding from responsibility?
  I can think of no instance in the history of any great legislative 
body in which a legislature decides to diminish its own power. This is 
beyond strange in the world's greatest deliberative body, in the 
world's most powerful legislative Chamber. For what good reason would 
we give up our own prerogatives?
  This administration has been ineffective. Now the Senate majority 
leader is suggesting that the Senate respond to this executive weakness 
by weakening ourselves. This is wrong. The purpose of the Senate is 
achieved through bipartisanship, deliberation, and compromise. The 60-
vote threshold for Supreme Court nominees preserves these ideals. 
Changing this rule will make it harder to get there.
  Look at the House of Representatives. Look at the way the House 
Intelligence Committee has dissolved so quickly into partisanship, 
unable to do its job.
  Look at the country. Look at the campaign last year. We are a country 
divided. Polarization is at an all-time high. Now is not the time to 
crush a cornerstone of the Senate's foundation.
  I don't think this is inevitable. This is not unstoppable. This is up 
to all of us. It is up to the Members of the Senate to decide if we are 
going to damage the world's greatest deliberative body at a time when 
the country needs us the most.
  The Senate has always been defined by its Members. The rules, the 
customs, and the traditions--they help. But at the end of the day, it 
is the Members of the Senate--like Calhoun, Webster, Clay, Kennedy, 
Inouye, Hatch, McCain--who make the Senate relevant and necessary.
  We are going to find out who we are, as Senators. I would ask that at 
a minimum, the Senate take its time on this decision. Don't rush. That 
is not who we are. That is not how we get to the best decisions. This 
is about the future of the Senate and the future of the Court. The 
nuclear option will mean nominees for the Supreme Court won't have to 
even meet with the minority party to be confirmed. It will mean that 
the Senate's habit of being slow--sometimes maddeningly slow--will go 
away. That tradition that allows the center to hold--not just in this 
Chamber but across the country--will be undermined.
  So to my Republican colleagues, please take a few weeks before you 
decide to change the Senate forever. Take your time here. This is 
probably one of the most serious decisions that you are ever going to 
make as a Senator because it is about the Senate itself. This is worth 
talking about. This is worth deliberating over. It is worth thinking 
over.
  Go home and talk to your constituents. If you want to do this, you 
have the votes. You can do this three Mondays from now, anytime you 
want. But for goodness sake, there is no harm in thinking about it. All 
we need are three members of the Republican Party to go to the majority 
leader--either publicly or privately--and say: Give us some time to 
find another way to do this. Otherwise, you will make the Supreme 
Court, this place, and this country more extreme and more divided. You 
will answer this difficult moment in history by weakening one of the 
last bastions of bipartisanship, and I believe you will regret it.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SULLIVAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.