[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2372-S2373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Order for Recess

  Mr. GARDNER. Mr. President, if there is no further business to come 
before the Senate, I ask unanimous consent that it stand in recess 
under the previous order, following the remarks of Senator Cantwell for 
10 minutes, Senator Franken for 30 minutes, Senator Murphy for 30 
minutes, and Senator Hirono for 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GARDNER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, I rise to oppose the nomination of Neil 
Gorsuch and to oppose cloture on this nomination.
  I take seriously the responsibility to give advice and consent, and I 
take seriously the President's remarks that he planned on nominating 
someone to the Court who would overturn Roe v. Wade.
  A U.S. Supreme Court nominee requires 60 votes, and if a nominee 
can't clear 60 votes, then I agree with my colleague, the Senator from 
New York, that it is the nominee who should be changed and not the 
Senate rules.
  If confirmed, Judge Gorsuch will have a lifetime appointment to the 
U.S. Supreme Court and have an impact on many, many Americans' lives. 
When people say lifetime, I think that doesn't quite accurately reflect 
this issue and nomination. Lifetime, in this case, may mean 30 to 35 
years.
  It is hard for me in an information age to think of all the issues 
that are going to occur in the next 30 to 35 years and what issues this 
nominee might rule on. But I know this: Right now, privacy rights and 
how they affect the lives of many Americans are critical, not just to 
my constituents but to people all over the country.
  Judge Gorsuch is commonly referred to as a proponent of originalism 
and textualism. He believes the U.S. Constitution should be interpreted 
by the original intentions of those who drafted it as closely as 
possible. As someone who knows well the record of the former Supreme 
Court Justice who wrote the Griswold v. Connecticut decision, I doubt 
that one would say that he was an originalist.
  Some legal scholars have even called Judge Gorsuch a selective 
originalist, favoring some textual provisions while overlooking others. 
And while no one expects Judge Gorsuch to reveal how he would vote on a 
particular case. During his Senate confirmation hearing, he did not 
give Senators enough background about his judicial philosophy. In our 
private meeting, he did not give me enough of an assurance of his 
philosophy as it relates to these issues on privacy for my constituents 
in Washington.
  Whether we are talking about access to healthcare or we are 
protecting individuals' privacy rights from unwanted corporation or 
government intervention, these issues are critically important. Judge 
Gorsuch told the Senate Judiciary Committee that he does recognize 
privacy rights. However, his earlier writings on unenumerated 
constitutional rights contradict this statement. This contradiction 
raised questions with me, and I worked to try to further clarify his 
judicial philosophy on this issue.
  I told him that my State had actually codified the rights of women to 
have access to reproductive healthcare.
  He said: Oh, you mean your State legislature did that.
  And I said: No, Judge Gorsuch, I mean the people of Washington voted 
on these issues and voted to protect a woman's right to access to 
reproductive healthcare.
  When it comes to the right to privacy, I work hard to understand 
where our judiciary is coming from, and if it is for the next 30 to 35 
years, I guarantee you these privacy rights are going to be of critical 
importance.
  In the longstanding precedent known as the Chevron doctrine, judges 
should defer to reasonable agency interpretations of ambiguous 
statutory language. It allows agencies to get expert input on their 
decisions and regulations. By overturning this doctrine, it could make 
it easier for courts to challenge important agency decisions protecting 
health and the environment. This issue is also important to my State. 
We fought the Enron case to make sure that the Federal energy 
regulators did their job in protecting the ratepayers of Washington 
from, at the time, what was, in my opinion, a violation of the Federal 
Power Act on just and reasonable rates. We had to go to a great extent 
to make sure that the agencies' decisions were carefully considered to 
make sure we didn't become the deep pockets.
  Making sure that this doctrine is continued and not overturned is 
important. I find it troubling that Judge Gorsuch concluded that this 
precedent from Chevron v. the Natural Resources Defense Council should 
be overturned.
  Also, yesterday was Equal Pay Day, and there was a lot of discussion 
about how women still face unequal wages. What would Judge Gorsuch do 
about equal pay?
  As a professor, he told his students that women manipulate family 
leave policies for their own benefits. As a judge, he frequently ruled 
against women and their rights. In Hobby Lobby v. Sebelius, a privately 
held company, which was a store chain, challenged the Affordable Care 
Act's birth control benefit. The Affordable Care Act required health 
insurance plans to provide women with birth control coverage with no 
cost sharing.
  Judge Gorsuch joined the Tenth Circuit majority, holding that an 
employer's religious beliefs could override an employee's right to 
birth control coverage. Judge Gorsuch also supported an effort to 
defund Planned Parenthood, an important provider of women's health 
services. In Planned Parenthood Association of Utah v. Herbert, the 
Tenth Circuit upheld an injunction to prevent the Governor of Utah from 
defunding Planned Parenthood. However, Judge Gorsuch dissented and 
pushed for a rehearing of this case by the full court.
  Judge Gorsuch has had a narrow interpretation of the laws meant to 
protect workers against discrimination. In another case, a worker 
alleged that she had been unlawfully discriminated against based on 
gender because she took 2 weeks of leave under the Family

[[Page S2373]]

Medical Leave Act. She claimed that her employer had a higher 
performance standard for women than for her male coworkers. The Tenth 
Circuit ruled in her favor and found that the employer had 
discriminated against her. However, Judge Gorsuch dissented, arguing 
evidence of discrimination was entirely absent.
  These issues and rulings make me concerned about Judge Gorsuch's 
judicial philosophy as it relates to what I now believe is an accepted 
standard.
  Judge Gorsuch has also ruled against LGBTQ individuals seeking fair 
and nondiscriminatory treatment. Lambda Legal and other groups have 
called his record openly hostile toward the LGBTQ community. Judge 
Gorsuch has held that a transwoman's constitutional rights were not 
violated, citing the absence of any medical evidence.
  Also, as many of my colleagues have talked about, Judge Gorsuch has 
had a pattern of ruling against the little guy. My colleague from 
Hawaii noted that he seems to favor corporate interests over workers' 
rights and private interests over public interests.
  Look at the outcome in many of these cases, which have been cited 
frequently since his nomination--none more than the case involving the 
Individuals with Disabilities Education Act. I think it is so important 
that it needs to continue to be talked about.
  This case, which was recently rejected by the U.S. Supreme Court, 
limited the opportunities for children with disabilities. Judge Gorsuch 
had concluded that to comply with the law, the school's responsibility 
to the student was to make progress that was ``merely more than de 
minimis.'' That is to say that those children in our education system 
who have a special need, whether it be autism or something else, 
through our education system need to make progress, and it could be no 
more than de minimis.
  This ruling impacts hundreds of thousands of students all across 
America, including in the State of Washington. He wrote the majority 
opinion and used the word ``merely.''
  I asked Judge Gorsuch about this because of the cases I mentioned 
earlier on Federal energy regulators and the fact that we needed strong 
anti-manipulation laws, and we needed people to interpret the standards 
to make sure that they were upholding the interests of the public. We 
had quite a long discussion about this issue. Judge Gorsuch suggested 
that he was bound by a previous decision.
  I know some of my colleagues have also noted this, but when Justice 
Roberts wrote the unanimous opinion rejecting these ``merely more than 
de minimis'' standards that Judge Gorsuch used, Justice Roberts 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 said to have been offered an education at all.'' On this point, 
I agree with the Chief Justice.
  Not having a deeper understanding about his judicial philosophy and 
given my great concerns for the right to privacy issues that will 
remain constant in our society for the next 30 years and given these 
issues around regulatory standards that are so important, I cannot 
support this nomination nor support cloture to move ahead.
  I yield the floor.
  Mr. President, 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. FRANKEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.