Congressional Record, Volume 163 Issue 58 (Tuesday, April 4, 2017)

[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2373-S2381]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Chemical Attack in Syria

Mr. FRANKEN. Mr. President, before I begin my remarks on Judge
Gorsuch, I just want to take a minute to talk about the chemical attack
in Syria.
Words cannot describe these vicious attacks against civilians. We
have all seen the horrific footage of the victims, many of whom were
children. These are innocent men, women, and children who, through no
fault of their own, are caught in the middle of a bloody civil war,
stuck between a brutal regime, armed groups, and foreign powers. My
heart goes out to the victims and their families.
The world has come together and unequivocally condemned these acts
and their perpetrators. We must work together to find a path toward
peace and stability in Syria, and the United States must take a
leadership role in that effort.
Mr. President, I rise in opposition to the nomination of Judge Neil
Gorsuch to serve as an Associate Justice on the Supreme Court. After
meeting with the nominee, carefully reviewing his record, and
questioning him during his confirmation hearing, I have come to the
conclusion that elevating Judge Neil Gorsuch to the Supreme Court's
bench would merely guarantee more of the same from the Roberts Court--a
sharply divided, already activist Court that routinely sides with
powerful corporate interests over the rights of average Americans.
I think it is important to start by acknowledging just exactly how it
is that Judge Gorsuch came to be before the Senate; namely, this body's
failure to fulfill one of its core functions. Immediately following the
death of Justice Scalia, in a move as cynical as it was irresponsible,
Senate Republicans announced that they would not move forward with
filling the vacancy until after the Presidential election. Before
President Obama had even named a nominee, the majority leader said:
``The American people should have a voice in the selection of their
next Supreme Court Justice.'' The only problem with the majority
leader's reasoning was the American people did have a voice in the
decision; they had voted to make President Obama the President of the
United States. Nonetheless, Republican members of the Judiciary
Committee gathered behind closed doors and vowed to defy the eventual
nominee a hearing. Many Republicans refused to even meet with the
nominee. They said it didn't matter who the President nominated; they
said this was about principle.
But Senate Republicans had a difficult time justifying their
obstruction--that is, until they decided to mischaracterize a speech
delivered by former Judiciary Committee chairman Joe Biden in June of
1992. In that June of 1992 speech, then-Senator Biden discussed the
possibility of a Supreme Court Justice resigning in an election year in
order to ensure that a President of the same party could name a
replacement. Under those circumstances, he said, the President should
refrain from nominating a replacement and the Senate should not hold
confirmation hearings until after the election.
My Republican colleagues seized upon this small portion of Senator
Biden's speech and dubbed it the ``Biden rule.'' Chairman Grassley said
the Senate ought to abide by the Biden rule, which he said holds that
there are ``no presidential Supreme Court nominations in an election
year.''
The majority leader said: ``As Chairman Grassley and I declared . . .
the Senate will continue to observe the Biden Rule so that the American
people have a voice in this momentous position.'' So in order to
justify a truly unprecedented act of obstruction, my Republican
colleagues pointed to the so-called Biden rule and said they were
standing on principle. That was the principle. But my Republican
colleagues chose to overlook a few important details.
First of all, the scenario Senator Biden described in his 90-minute
speech was not the situation our country faced last year. No one
strategically resigned last year. A Justice died. No one dies to game
the system.
Second and most importantly, my Republican colleagues ignored the
actual point that Senator Biden made in that speech. If they had
bothered to read the entire speech--and I suspect they actually had--
they would have found that further down, Senator Biden said--and this
is important. This is what Senator Biden said in the speech used as the
justification not to take up Merrick Garland. Senator Biden said in
that speech, ``If the president [then George H. W. Bush] consults and
cooperates with the Senate or moderates his selections absent
consultation, then his nominee may enjoy my support, as did Justices
Kennedy and Souter.''
Allow me to dwell on that for a moment. Senator Biden said that if a
Supreme Court vacancy arose during an election year and the President
consulted with the Senate or, absent consultation, put forward a
moderate, consensus candidate, that candidate

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should enjoy the support of the Judiciary Committee's chairman. That is
the Biden rule. That is the Biden rule.
If Senate Republicans had actually followed the Biden rule, we
wouldn't be here today. Merrick Garland would be sitting on the Supreme
Court bench.
Over the past few days, I have heard my Republican colleagues
denounce Democratic opposition to Judge Gorsuch by claiming that there
never has been a partisan filibuster of a Supreme Court nominee. But if
the shameful and unprecedented obstruction that Republicans used to
effectively block President Obama from appointing a Supreme Court
Justice wasn't a partisan filibuster, then I don't know what is.
Perhaps my Republican colleagues were concerned that President Obama
would seek to replace Justice Scalia--a reliably conservative member of
the Court--with a jurist whose view would place him or her on the
opposite end of the ideological spectrum. That seems to be the concern
that my good friend Senator Hatch expressed when he said:

[T]he President told me several times he's going to name a
moderate, but I don't believe him. [President Obama] could
easily name Merrick Garland, who is a fine man. He probably
won't do that because this appointment is about the election.
So I'm pretty sure he'll name someone the [Democratic base]
wants.

But as it turns out, in recognition of the forthcoming election and
the Republican-controlled Senate, President Obama did exactly what
then-Senator Biden said a President should do: He named a moderate,
consensus candidate. He named Merrick Garland.
Judge Garland was supremely well qualified for the job. Here is a guy
who was his high school's valedictorian, who attended Harvard on a
scholarship, won clerkships with legal legends like Second Circuit
Judge Henry Friendly and Supreme Court Justice William Brennan, and
left a partnership at a prestigious law firm to become a Federal
prosecutor during the George H.W. Bush administration. He later joined
the Justice Department, where he prosecuted the men responsible for
bombing the Oklahoma City Federal Building in 1995, and Merrick Garland
kept in touch with the survivors' and the victims' families. That is
the reason why one of the very first of three Republicans agreed to
meet with Judge Garland--Senator Jim Inhofe of Oklahoma, a staunch
conservative--because people of Oklahoma had such regard for Merrick
Garland.
After Judge Garland was confirmed to the DC Circuit in 1997, he
earned a reputation for working with his colleagues from across the
ideological spectrum to identify areas of agreement and to craft strong
consensus opinions, often by deciding a case on the narrowest grounds
possible.
Judge Garland was the right choice at the right time. He wasn't a
partisan warrior or a partisan political animal; he was a judge's
judge, and everyone knew it. That is why my Republican colleagues had
to hide behind new and misleading so-called rules in order to deny him
a hearing and a vote.
Judge Gorsuch is no Merrick Garland. Judge Gorsuch is a creature of
politics. That is not what Judge Gorsuch told me when I met him earlier
this year. I asked Judge Gorsuch if he was bothered by the way the
Senate treated Merrick Garland. He responded by telling me that he
tries to stay away from politics. But documents that the Judiciary
Committee received from the Department of Justice, including emails
between Judge Gorsuch and Bush administration officials, show that
Judge Gorsuch was very heavily involved in politics. A resume he sent
to President Bush's political director in November 2004--back when
Judge Gorsuch was looking for a job--detailed his work on Republican
political campaigns dating back to 1976 and highlighted an award he
received from Senate Republicans for his work to advance President
Bush's judicial nominees. Ken Mehlman, the former chairman of the
Republican National Committee, later recommended Judge Gorsuch for a
post at the Justice Department and described him as a ``true
loyalist.''
Understand, being politically active or being a Republican is not a
disqualifying characteristic in a Supreme Court nominee, at least not
in my book, but Judge Gorsuch's resume is relevant here because,
contrary to what he told me, his resume establishes that he is not just
intimately familiar with politics; he knows the politics of the
judicial nominations process and he knows it well. Let me explain why I
think that is important.
During the campaign, then-Candidate Trump spoke openly about his
litmus test and what kind of a judge he would appoint to fill Justice
Scalia's seat on the Court. He said that he would ``appoint judges very
much in the mold of Justice Scalia.'' During the final debate, he said,
``The justices that I'm going to appoint will be pro-life. They will
have a conservative bent.''
Part of the reason that then-Candidate Trump could say that with such
conviction is because he had already outsourced the job of coming up
with a list of potential nominees to the Federalist Society and the
Heritage Foundation, both rightwing organizations. The groups produced
a list of 21 conservative judges for then-Candidate Trump, a list that
included Judge Gorsuch. Presumably, the Federalist Society and the
Heritage Foundation knew something about the judicial philosophy of the
men and women who it had decided to include on that list, given Judge
Gorsuch's previous work to push judicial nominees through the Senate. I
am sure he knew a thing or two about the Heritage Foundation and the
Federalist Society, as well.

In fact, Judge Gorsuch first learned that he was under consideration
for the vacancy from the Federalist Society's vice president, who was
working with the transition team. Judge Gorsuch went on to interview
with a host of other members of the transition team, including now-
White House Chief of Staff Reince Priebus and Chief Strategist Stephen
Bannon. Weeks later, President Trump had officially nominated Judge
Gorsuch. Both Mr. Reince Priebus and Mr. Bannon appeared before
rightwing activists at CPAC and talked about his nomination. Mr.
Priebus told the crowd that Justice Gorsuch would bring about ``a
change of potentially 40 years of law.'' He said: ``Neil Gorsuch
represents . . . the type of judge that has the vision of Donald Trump,
and [his nomination] fulfills the promise that he made to all of you,''
gesturing to a crowd of conservative activists.
So whether Mr. Priebus was suggesting that, if confirmed, Judge
Gorsuch would unsettle 40 years of precedent--like Roe v. Wade or
Chevron--or whether he was suggesting that Judge Gorsuch would be a
reliably conservative vote for the next 40 years, it seems clear to me
that confirming Judge Gorsuch is central to President Trump's political
agenda.
Now, my Republican colleagues would have you believe that nothing
could be further from the truth. In their view, they say that judges
call balls and strikes--nothing more, nothing less. Earlier this week,
for example, Senator Cruz said: ``Conservatives understand that it is
the role of a judge, and especially the role of a Supreme Court
Justice, simply to follow the law.'' He said that Senate Republicans
``are not confirming someone who will simply vote with our team on a
given issue.'' It is Democratic judges, according to Senator Cruz who,
``by and large view the process as achieving the result they want and
view the process of adjudicating a case as a political process.''
Let me explain why I take issue with that. If my Republican
colleagues truly believe that a judge's proper role is to call balls
and strikes and to decide cases narrowly, they would have confirmed
Merrick Garland, a judge with a proven track record of crafting
consensus opinions built on narrow holdings. But a judge who calls
balls and strikes isn't really what my colleagues want. Contrary to
what Senator Cruz said, what my Republican colleagues want is a
results-oriented judge. Why else would they hold open a seat on the
Supreme Court bench? Why else would they turn to the Heritage
Foundation and the Federalist Society for candidates? Why else would
they trample on the traditions of the Senate? What my Republican
colleagues really want is a judge who will vote with their team, and
that is the judge they will get by confirming Neil Gorsuch. That is
what this is all about. That is what this is about.
Unlike Merrick Garland, Judge Gorsuch has little interest in reaching
consensus or in citing cases narrowly.

[[Page S2375]]

Now, Judge Gorsuch took great pains to paint himself as a mainstream
nominee. He pointed out that the Tenth Circuit ruled unanimously 97
percent of the time, and that he was in the majority 99 percent of the
time, but that is not unusual, and it doesn't provide any insight into
his approach to being a judge. After all, the Courts of Appeals are
required to follow Supreme Court precedent in all circuits around the
country, and the vast majority of their cases are decided unanimously.
So in order to really understand Judge Gorsuch's approach to deciding
cases--in order to really understand how he views the law--it is
critically important to look at the cases where he chose to write
separate concurrences or dissents. These concurring and dissenting
opinions offer the clearest window into how he really thinks. Judge
Gorsuch tends to write a lot of concurring and dissenting opinions.
Even when Judge Gorsuch agrees with the majority and joins their
decision, he frequently writes his own concurrence, setting out his own
views. Judge Gorsuch has done this 31 times, including writing two
concurrences to majority decisions that he, himself, had written. That
is not seeking out consensus. That is holding his nose to join a
consensus opinion, and then writing separately in order to point the
way to broader, more sweeping rulings that other courts might issue in
future cases--other courts like the Supreme Court, which doesn't have
to follow precedent, which he is now poised to join and where he will
not be restrained by precedent.

Judge Gorsuch is a results-oriented judge, and his record
demonstrates that he approaches cases with a very specific outcome in
mind. Contrary to what my Republican colleagues would have you believe,
he doesn't hide that judicial philosophy. Whether it is his concurrence
in Hobby Lobby or his dissent in TransAm Trucking, Judge Gorsuch wears
that philosophy on his sleeve. It only underscores a disturbing
pattern: siding with corporate interests over average Americans.
That philosophy was on full display in the dissent that Judge Gorsuch
wrote in TransAm Trucking. It seems clear to me that Judge Gorsuch
approached this case with a specific outcome in mind, which was siding
with a company over a worker. And in order to just justify that outcome
in his dissent, Judge Gorsuch twisted himself into a pretzel.
You may have heard this story, but I want to lay it out as
efficiently as possible because I think it reveals a great deal about
Judge Gorsuch's philosophy, and it helps to explain exactly why I am
voting against him. In this case, trucker Alphonse Maddin is driving a
rig on the interstate through Illinois. He is pulling a long trailer
that is fully loaded. He makes a stop. He takes a break. Then, at 11
p.m., he is about to pull back onto the interstate, but discovers that
the brakes on his trailer are locked. It is 14 below zero out. These
brakes are literally frozen. So he calls his dispatcher to ask for
repairs. And he waits.
While he is waiting, the heater in his cab stops working, and he
falls asleep and is awakened by a call from his cousin. When Maddin
sits up to answer the phone, he realizes that his torso is numb, and
that he can't feel his feet. He is having trouble breathing. His cousin
later says that Maddin's voice is slurred, and he wasn't tracking.
According to the Mayo Clinic, these are all symptoms of hyperthermia.
Maddin calls into the dispatcher again. He is told to hang on. He says:
I can't. His boss tells him he has two choices, wait there until the
repair truck comes, or he can take the whole rig on the road, including
the trailer with frozen brakes. Those are the two options he is given
by his boss. Maddin knows that if he waits, he may very well freeze to
death. That is his first option, or he can go out on the interstate at
2 o'clock in the morning, dragging a fully-loaded trailer with frozen
brakes at 10, maybe 15 miles per hour max, posing a safety hazard to
other drivers at the interstate. Remember, it is 2 o'clock in the
morning. It is dark. It is probably icy. Imagine a car going 80, 85
miles per hour--as people do at 2 o'clock in the morning on an
interstate--coming up over a hill behind that rig, and then coming down
and seeing this rig going 10 or 15 miles per hour, where you are going
80, 85. That would be like suddenly coming down on a stopped tractor
trailer while you are going 70 miles per hour. That is his second
option.
Instead, Maddin does what any of us would do. He unhitches the
trailer and drives down the interstate to find someplace warm, and he
does get warm. Then he returns to the trailer when the repair truck
finally shows up, and he is fired. He is fired for abandoning his
cargo. Now, there is a law to protect people in Maddin's situation. So
he files a case. When it gets to the Tenth Circuit, a three-judge panel
agrees with him, with Maddin. They find that the trucking company
shouldn't have fired Mr. Maddin, but one judge dissented--Judge Neil
Gorsuch.
So during my question, I asked Judge Gorsuch a very simple question:
What he would have done if he had been the truck driver; if he had been
driving that truck. I asked: Which would you have chosen? What would
you have done? And here is Judge Gorsuch's response: ``Oh, Senator, I
don't know what I would have done if I were in his shoes.''
Now, is there anyone here who would not have done what that driver
did? I don't think so. Of course, you would unhitch the trailer and
find someplace warm as quickly as possible--of course. But Judge
Gorsuch said he didn't know what he would have done? Is that possible?
I asked him if he had even thought about what he would have done if
he were Maddin. You know, he had heard the case. He did not answer. So
I asked him again. I asked him, given the choices of sitting there and
possibly freezing to death or going on the road with an unsafe vehicle,
or doing what Mr. Maddin did, and Judge Gorsuch responded: Senator, I
don't know. I was not in the man's shoes.
Judge Gorsuch said he decides cases based on the facts and the law
alone. ``I go to the law,'' he said. But so, in fact, did the majority.
Here is the operable law. Here is the law: ``A person may not discharge
an employee who refuses to operate a vehicle because the employee has
reasonable apprehension of serious injury to the employee or the public
because of the vehicle's hazardous safety or security condition.''
The majority ruled that the company could not fire the truckdriver
because he had refused to operate the rig, the entire rig, because it
was unsafe. But Judge Gorsuch said no. While operating the cab, he was
operating the vehicle. Therefore, he did not refuse to operate a
vehicle.
Judge Gorsuch said he made that decision by applying the plain
meaning rule. I pointed out that the plain meaning rule has an
exception: ``When using the plain meaning rule would create an absurd
result, courts should depart from the plain meaning.'' It is absurd to
say that this company was within its rights to fire him because he
refused to choose between possibly dying by freezing to death or
possibly killing other people by driving a semi on an interstate at 10
miles an hour at 2 in the morning. Frankly, the company is fortunate
that Mr. Maddin made the choice he made because otherwise they may very
well have faced a wrongful death claim.
Everyone who was in the hearing knows what Judge Gorsuch would have
done in Alphonse Maddin's situation. If Judge Gorsuch had answered
honestly, he would have said that he would have done exactly, exactly
what the driver did. Everyone would. Judge Gorsuch just did not want to
admit it. That is because there is no good answer.
If Judge Gorsuch said that he would do the very same thing that Mr.
Maddin did, that would make his dissent look pretty bad. But if he had
said ``I would have done what the company told me to do,'' that would
be an absurd answer. That would make you question the man's judgment.
No one would believe it. So, instead, Judge Gorsuch said: I don't know
what I would have done. But of course he did. He just was not being
honest. Judge Gorsuch approached Mr. Maddin's case with an outcome in
mind, siding with the corporation, and the dissent that he wrote makes
that perfectly clear.
When I joined the Senate back in 2009, I arrived here in June, a
little later than the rest of my class. Just a few days later, my fifth
day in office, Judge Sonia Sotomayor appeared before the Judiciary
Committee for her

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first day of her confirmation hearings for the Supreme Court. I have
been thinking a lot about Justice Sotomayor's hearings because the
concern I expressed about the direction of the Court back then is just
as relevant as today. Back then, almost 8 years ago, I voiced concern
about it becoming more difficult for Americans seeking a level playing
field to defend their rights and get their day in court, from bringing
a discrimination claim to protecting their right to vote.
Back then, I said: ``I am wary of judicial activism and I believe in
judicial restraint. Yet looking at recent decisions on voting rights,
campaign finance reform, and . . . other topics, . . . there are
ominous signs that judicial activism is on the rise.''
That was my first opening statement, the first opening statement that
I ever delivered at the first confirmation hearing that I ever
attended. But in the years that followed, my concerns have proved to be
justified in one 5-to-4 decision after another. We have seen the
Roberts Court go out of the way to answer questions not before it, to
overturn precedents, to strike down laws enacted by Congress, and to do
all of this at great cost to consumers and to workers and to small
businesses and to middle-class Americans.
In decisions such as Shelby County, the Court gutted one of our
landmark civil rights laws, 5 to 4. During the oral argument, Justice
Scalia suggested that when the Voting Rights Act had last been passed
97 to 0 in the Senate, the Senate had done it because of the name of
the Voting Rights Act. How could you vote against the Voting Rights
Act? What a great name. He was showing contempt for this body. What is
more judicially active than overturning a law voted on unanimously in
the Senate because the Senate just liked the name?
Of course what that did was get rid of preclearance. What is
preclearance? Preclearance said that those States that had a history of
suppressing the votes of minorities had to preclear any new voting law
with the Justice Department.
These were States that had a history of suppressing the votes of
racial minorities. Well, that gets overturned. Boom. States like North
Carolina, Texas, start passing new laws--voter ID laws. The second
section of the Voting Rights Act still stayed, so you could appeal to a
Federal court. But it takes a while to work its way through.

So finally, in early 2016, a circuit court, the Fourth Circuit I
believe, ruled that North Carolina had targeted African Americans with
almost surgical precision to suppress their votes. That is why you have
preclearance. That is why you want preclearance. But in a 5-to-4 vote,
preclearance was struck down. That is one 5-to-4 case. Concepcion, a 5-
to-4 decision, allows corporations to force consumers into mandatory
arbitration. There are a whole host of 5-to-4 decisions that make it
impossible for people to get into the courts.
But the most egregious of all 5-to-4 decisions was Citizens United--
another 5-to-4 decision that paved the way for individuals and outside
groups to spend unlimited sums of money in our elections.
In each one of those 5-to-4 decisions Justice Scalia sided with the
majority. So now this body considers replacing him with Judge Gorsuch.
I think it is important to understand the extent to which he shares
Justice Scalia's views. Judge Gorsuch's record demonstrates that he is,
in President Trump's words, a judge very much in the mold of Justice
Scalia.
During his time on the Tenth Circuit, Judge Gorsuch has consistently
ruled in favor of powerful interests. He has sided with corporations
over workers, corporations over consumers, and corporations over
women's health.
A study published in the Minnesota Law Review found that the Roberts
Court is the most pro-corporate Supreme Court since World War II. If
the Senate confirms him, Judge Gorsuch guarantees more of the same from
the Roberts Court, and I do not believe that is a Court that our
country can continue to afford.
So I oppose Judge Gorsuch's nomination. I urge my colleagues to take
a close look at his record of siding with powerful corporate interests
over average Americans, to consider carefully how he stands to impact
the Court, and to reject his nomination.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Kennedy). The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. MURPHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MURPHY. Thank you, Mr. President.
Mr. President, confirming a Supreme Court Justice is one of the if
not the most important responsibilities we have as Senators. It is a
vote we cast knowing full well that the tenure and the influence of the
nominee who is before us will likely be greater and much more long-
lasting than our own in the Senate.
After meeting with Judge Gorsuch and reviewing hours of his testimony
before the Judiciary Committee, I have decided to oppose his
nomination, and I come to the floor this evening to talk about the
reasons why.
I am deeply concerned about the politicization of the Supreme Court
and its recent capture by corporate and special interests. I am
convinced that Judge Gorsuch would exacerbate that slide and continue
the activist bent of the existing Court, and for that reason I won't be
supporting him in the vote tomorrow.
There is no doubt that Neil Gorsuch is a well trained, very
intelligent lawyer who likely has the right disposition to serve on our
Nation's highest Court, but that is not the end of the analysis that I
or any of us are required to conduct. I am concerned about Judge
Gorsuch's record of putting corporate interests before the public
interests. His past decisions demonstrate a resistance on his part to
put victims' and employees' needs above those of large corporations. He
has regularly sided with employers over workers, corporation's rights
over the rights of employees to make personal healthcare decisions.
While he admirably claims to rest his decisions on the law rather than
his political views, his consistent support for the powerful over the
powerless doesn't seem coincidental.
The Roberts Court, in my mind, has swung dramatically in favor of the
rights of corporations and special interests over those of individual
Americans. I would have supported a mainstream nominee, but the risk
that Judge Gorsuch will inject his political judgment over a process
that already too often favors the rights of corporations over
individuals is too great a risk for him to earn my support. That was
the statement I released upon making my decision. I wanted to begin my
remarks with it.
I want to talk a little bit about the elements inherent in my
decision to vote against Judge Gorsuch because I don't take that
decision lightly. I have said throughout the beginning of President
Trump's tenure that I do believe we owe some degree of deference to a
President in making choices as to who will serve him in his
administration, and I think that likely applies to the question of whom
a President chooses for the Supreme Court as well. I think I voted that
way. I certainly voted against many of President Trump's nominees, but
I voted for many of the nominees with whom I had very deep
disagreements with over policy as well. So it is not a question of
whether Judge Gorsuch would be my choice; it is a question of whether I
think he is going to be in the mainstream on the Supreme Court or
whether I think he is going to be an outlier and bring potentially
radical views into the courtroom.
But it is kind of silly for us to pretend this debate is happening in
a vacuum. I am making my mind up on Judge Gorsuch, as I will try to
outline this evening, based upon my review of his record and my belief
about who he will be as a Justice.
We would all be lying if we said as Democrats that we don't remember
what happened on the floor of the Senate all throughout 2016. Merrick
Garland should be on the Supreme Court today, or if not Merrick
Garland, someone else who was nominated by President Barack Obama. The
Supreme Court vacancy occurred with nearly 12 months left in his term--
25 percent of a term that he was elected to by the people of the United
States. The Constitution doesn't allow for 3-year terms. It

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doesn't say the President becomes illegitimate once he hits the final
12 months. The Framers of our Constitution were hopeful that the
President would be President for all 4 years. That last year was robbed
not just from President Obama but from the American people by
Republicans in the Senate when they treated Judge Garland with such
disrespect.
It would have been one thing to simply vote against him because you
didn't want to let the President of an opposing party fill that seat,
but to not even give him a hearing, to not give him a vote, to not even
take meetings with him, which was the decision of many Republican
colleagues, that was a show of disrespect to Judge Garland that I don't
think any of us could have imagined. It was a show of disrespect to
this Chamber, to the traditions of this body that those of us who may
have supported Judge Garland remember. That bad taste still sits in our
mouth.
So I am here to state that my vote against Judge Gorsuch is not
payback for the way in which Merrick Garland was treated, but I
remember what happened.
To the extent that my Republican colleagues are suggesting that we
should vote for Judge Gorsuch or at least vote for cloture tomorrow as
a means of upholding the traditions of the Senate--spare me. Spare me.
There isn't a lot of interest on this side of the aisle in upholding
the traditions of the Senate if we are the only ones doing it.

Some people say: Well, if you voted for cloture on Gorsuch tomorrow
and let it go to a final vote, then maybe Republicans would keep the
rules as is.
That is belied by the facts. Last year, the Republican majority made
it pretty clear that they were willing to break all tradition, all
precedent, and all comity in the Senate in order to get their person on
the Supreme Court. That wasn't just a 2016 issue; that is the new
normal for Republicans in the Senate. So whenever Democrats raised an
objection to a nominee to the Supreme Court, the rules were going to
change because Republicans made it clear that their first priority is
to get their people on the Supreme Court and their second priority is
to think about and try to preserve the way in which the Senate has run.
I am not voting against Neil Gorsuch because I am mad about what
happened, but to the extent that I have heard Republicans in the Senate
lecture us about violating the traditions of the Senate, it makes my
blood boil because I was here in 2016. I saw what the Republican
majority did to Merrick Garland.
Maybe we can sit down after this is done and talk about how the
Senate just doesn't get into a giant vortex of devolvement, tit for
tat, such that all of the reasons why people run for the Senate--the
individual prerogatives that Senators have, the demand to find
consensus in a way that doesn't exist in the House--all vanish. Merrick
Garland is still here, and it would be silly for us to try to pretend
he isn't.
One of the reasons I am so worried about Judge Gorsuch is because of
his enthusiasm for a brand of judicial interpretation called
originalism. It doesn't sound that radical, right, originalism? The
idea is that one interprets the Constitution as the Founding Fathers
intended it to be; one doesn't place it in the context of today. Simply
think to yourself, what would those White men who wrote those words--
what would they think about the case before us? What did they mean back
in the late 1700s? On its face, it is an absurd way to think about
judging cases because so much of what is before a Justice had no
relevance and did not exist back in the 1780s, so questions about what
these men thought about various questions regarding technology or civil
rights are irrelevant because the Framers of the Constitution simply
weren't thinking about the same things we are thinking about today.
One of our most famous jurists understood this right from the outset.
Justice John Marshall wrote in McCulloch v. Maryland: ``We must never
forget that it is a Constitution we are expounding, intended to endure
for ages to come and consequently to be adapted to the various crises
of human affairs.''
Even those who were judging the Constitution at its outset understood
that, as the questions presented to this country changed, originalism--
the idea that you only look to the thoughts and words and deeds of the
Founding Fathers--probably wouldn't be an efficient way to decide
cases.
Justice Brennan gave a wonderful speech at Georgetown in 1985 that is
worth reading tonight. Justice Brennan said:

We current Justices read the Constitution in the only way
that we can: as Twentieth Century Americans. We look to the
history of the time of framing and to the intervening history
of interpretation. But the ultimate question must be, what do
the words of the text mean in our time? For the genius of the
Constitution rests not in any static meaning it might have
had in a world that is dead and gone, but in the adaptability
of its great principles to cope with current problems and
current needs.

He went on to say:

Time works changes, brings into existence new conditions
and purposes. Therefore, a principle to be vital must be
capable of wider application than the mischief which gave it
birth.

It is a wonderful turn of phrase.
He said:

This is peculiarly true of constitutions. They are not
ephemeral enactments, designed to meet passing occasions.
They are, to use the words of Chief Justice John Marshall,
``designed to approach immortality as nearly as human
institutions can approach it.''

He said:

Interpretation must account for the transformative purpose
of the text. Our Constitution was not intended to preserve a
preexisting society but to make a new one, to put in place
new principles that the prior political community had not
sufficiently recognized.

Senator Klobuchar asked Judge Gorsuch at his hearing if, because the
Constitution only uses the word ``he'' or ``his,'' it meant that a
woman could not be President. Well, the Constitution doesn't
specifically speak to this question, but if you were an originalist, I
can imagine how many of those Founding Fathers would have answered that
question. Why? Because they didn't believe that women deserved the
right to vote, so why on Earth would they believe that a woman should
be President? At the time, Blacks were considered to be subhuman. They
were granted three-fifths status in the Constitution. They were
slaves. To read a document only through the lens of a group of White
males who did not believe that a woman should be allowed to vote, who
did not believe that Blacks were human beings and on equal footing with
the rest of us, is to freeze this document in a time and ask us to,
consequently, freeze ourselves in that time as well. If you do not
allow the document to move, then you do not allow the rest of us to
move either.

Originalism is a fraud, and what it has become is a mask for
politics.
Now, what do I mean by that?
When you insist on interpreting the Constitution based only on the
ways in which the writers of that document viewed the world, you have
no way to base decisions in current times that are based on any real
text or set of historical facts because, of course, the Founding
Fathers had given no thought to many of the most important questions
that are presented to us today--for instance, questions about what
rights individuals have with respect to government surveillance over
their cell phones, which is a question that the Founding Fathers--the
Framers of the Constitution--could never have considered. It allows you
to, essentially, make it up for yourself because there is no way that
you can find a quote from any of the signers of the Constitution as to
what they thought about these modern questions. You can spin it any way
that you need to.
Originalism is an invitation to bring politics onto the Court because
anybody can make up a reason as to why the people who wrote the
Constitution would, ultimately, have decided the way that that jurist
wants the decision to turn out.
It connects with other troubling writings of Judge Gorsuch's. He
proudly calls himself an originalist. Historically, if we look at the
broad swath of jurists who have gotten on the Supreme Court, it is not
a mainstream school of judicial interpretation, but he has other
radical views as well.
The Chevron deference standard is named for a 1984 case in which the
Supreme Court held that it should defer to regulatory agencies when
they interpret ambiguous laws that are passed

[[Page S2378]]

by Congress. We pass ambiguous laws, sometimes on purpose and sometimes
by accident. But we often do it on purpose because we, ultimately,
leave it to the regulator to fill in the details--to proffer
regulations, to work out the details of enforcement. We often do not
define every single term, in part, because we know that there is going
to be the executive branch and people working for an elected official--
the President of the United States--who are going to carry out that act
and, ultimately, be responsible to the people.
What Judge Gorsuch has suggested is that maybe it is time to overturn
the Chevron deference standard. Maybe we should not give any deference
to administrative agencies any longer. Maybe the Supreme Court, on
every single law, should do a de novo review of its constitutionality
and give no deference to the executive branch.
First of all, that would be pandemonium. It would greatly accelerate
the number of cases that come before the Supreme Court and the number
of major--potentially life-changing--decisions that the unelected Court
is making. Why? Because we are always passing statutes here that leave
room for interpretation. Again, we do it many times intentionally and
sometimes unintentionally, but it happens every single month here that
we pass statutes that leave room for interpretation.
We often do that knowing, as I said, that the Executive will make
some of those secondary interpretations. We are comfortable with that
because, if his interpretation goes wrong, then that Executive is never
more than about 3\1/2\ years from an election.
The executive branch is responsible to the people. The courts are
not. These are lifetime appointments that we make. If every single
statute that we pass is interpreted from the foundation by the Supreme
Court and if they get it wrong, there is no way to get rid of them.
There is no way to roll that interpretation back. In fact, that is one
of the reasons for the Chevron deference--the reluctance of the Court
to make itself an active political player in the process of
interpreting statutes.
So it is radical that Judge Gorsuch is suggesting that, if he were
put on the Supreme Court, he would overturn that 1984 case. Justice
Scalia was one of the primary defenders of Chevron for that very
reason, in that he saw that the legitimacy of the Court--indeed, the
legitimacy of the entire judicial system--would be put in jeopardy if
it inserted itself as the primary arbiter of ambiguous statutes, of
statutes that needed interpretation.
Originalism is an invitation to take your politics onto the Court.
The evisceration of the Chevron deference would, inherently, make the
Court a political body. If you combine the two together, you will start
to see a Justice who will likely continue this trend line of its being
an activist Court that makes political decisions in substitute of the
Congress.

We have all seen it happen, whether it be in the voting rights case,
in which the unelected Supreme Court decided that racism was not
something that we had to think about any longer due to their vast
experience in the South and in dealing with cases of voter suppression,
or in their arbitrary decision that corruption should be very narrowly
defined and that we need not pay attention to the slow, creeping
corruption that happens when donors get access to the political process
through donations of thousands and tens of thousands and hundreds of
thousands and millions of dollars. The Supreme Court is telling the
people of this country and this Congress what corruption is and what it
is not.
Those are political decisions that the Court has made--an activist
Court--that now may have among its members a Justice who has,
effectively, advertised himself as being willing and eager to join that
trend line on the Court.
Individual cases raise concerns as well. In Riddle v. Hickenlooper,
Judge Gorsuch expressed an openness in providing a higher level of
constitutional protection to a donor's right to make political
contributions than the Court currently affords the right to actually
vote--donors having more rights than voters have.
As for the result of applying strict scrutiny, which is the term that
he is referring to with regard to political donations, we do not
exactly know what would happen, but it likely would have the
consequence of making it almost impossible to regulate campaign
finance. Ninety-three percent of Americans, in a recent poll, think
that government should be working to limit the impact that big donors
have on politics today. Yet Judge Gorsuch has suggested that, as a
Supreme Court jurist, he may move the law in the opposite direction,
robbing from both of us--Republicans and Democrats--the ability to do
what 93 percent of Americans want us to do, which is to restrict the
ability of a handful of billionaires to affect the political process.
In the Hobby Lobby decision, yet again, Judge Gorsuch suggests that
corporations, in this case, have more rights under the Constitution
than do the individuals who work for them--that the religious freedom
rights of the corporation trump the religious freedom rights of
employees. Once again, it ruled that those with power--big donors or
corporations--have more rights than those with less power--ordinary
voters, employees of these big companies.
Years ago, Judge Gorsuch wrote in a complaint, according to him, that
liberals were using the Court to try to push their political agenda
rather than to bring it here to the Congress. The reality is that, over
the course of the Roberts Court, the exact opposite has happened. It
has been Conservatives who have brought their complaints to the court
system--their complaints about voting rights, their complaints about
campaign finance, their complaints about the Affordable Care Act--
rather than to have brought them to the floor of this body.
As the House of Representatives abandons, for the time being, the
repeal and replacement of the Affordable Care Act, their allies
continue to push cases through the court system that would attempt to
unwind it. Judge Gorsuch has been, in his writings at least, blind to
this idea that Conservatives have spent just as much time over the past
20 years in trying to push their agenda in court as have Progressives.
Progressives have done that as well.
Clearly, we have full marriage rights in this country because of
court cases that Progressive groups push. I am not denying that there
is not this trend line on both sides of the political spectrum, but
Judge Gorsuch seems to only recognize it in his writings when it comes
to the liberals who are pushing these causes.
These are the most important decisions we make. Many of us may only
get to vote on a Supreme Court Justice once or twice. This is my fifth
year in the Senate, and this is my first vote. My first vote should
have come in 2016, but it is coming now in 2017. I do not take it
lightly, but there is a reason--when you go back to your apartment here
in Washington--that you are watching TV commercials that are paid for
by big corporations and billionaires who support Judge Gorsuch's
nomination.
He says that he is going to play it straight. He says that he is not
going to be affected by his political agenda. I hope that he is right,
but the folks who are fronting the money for these ads do not believe
him. They think they know how he is going to rule. Believe me. They
would not be putting up all of this money on TV if they did not think
that Judge Gorsuch was going to be a friend to the big companies, to
the billionaire donors who want more and more protection through the
court system.
Donald Trump was right about something when he ran for President. He
was not right that elections are rigged, but he was right that, in
general, the system--our economic state of affairs--does seem to be
pretty rigged against regular people. Economic mobility, which is how
we define ourselves as a country, is further away from the people whom
I represent in Connecticut than ever before, and the statistics bear
that out.
Your ability to move from poverty to prosperity is less today than it
has been at any point in our lifetimes. It does feel like the powerful
and the rich have recovered very nicely from this recession and that
nobody else has. It feels like they have a voice here in Washington
that no one else has either.
If you are President Trump, having run on this promise to unrig the
system, boy, this doesn't seem like the person you should be sending to
the

[[Page S2379]]

bench, somebody who has openly advertised his enthusiasm for voting
with billionaires, with corporations, with folks who have lots of
political power already.
The TransAm case, which has been talked about enough on the floor, is
a unique one. It is the case of a trucker who was being potentially
left to die by his employer on the side of the road, who left his truck
to save his life and potentially the lives of others on the road, had
he chosen instead to operate it. Judge Gorsuch ruled with his employer,
effectively suggesting this man should have risked his life or the
lives of others to comply with the strict letter of the law.
Judge Gorsuch was asked in the Judiciary Committee what he would have
done: What would you have done if you had two options--sit in that
truck and face death or put it back on the road and potentially kill
others? What would you have done? Judge Gorsuch said that he hadn't
thought about it.
I don't want my Supreme Court Justices to be political. I don't want
them to be us. It really is our job to think about, in a real,
tangible, grassroots way, the effect of our laws on their lives. But I
don't want a Justice who doesn't even contemplate the answer to that
question, the impact of the law on regular people. I don't want a
Justice who views the law only through the eyes of a group of White men
who lived in a fundamentally different world. I don't want a Justice
who isn't thinking about how the law applies to people who need a
statute's protection, rather than thinking about those who, frankly,
don't need the protection of statute because they have been handed a
pretty good lot in life from the start.
I am going to oppose cloture tomorrow, and if we eventually get to a
vote, I will oppose Judge Gorsuch on final passage.
My final comment is this: When that moment comes, I do hope that our
colleagues will think twice about changing the rules of the Senate.
They had already broken with precedent once in 2016 in a way that I
think is unforgiveable. To do it twice in a 24-month period puts this
place on a downward spiral that I am not sure we can recover from. If
we just want to be the House of Representatives, let's just do it. But
there is another way to go, to select a nominee who could truly get
bipartisan support.
As my colleague Tim Kaine is fond of saying, there is only one
appointment by the President of the United States that needs 60 votes.
There is only one person the President picks who needs to get more than
60. That is the Justice of the Supreme Court because it is permanent,
because it is important, because it lasts longer than we do. There is
probably good reason for that.
Precedent and comity were broken in 2016. I will never, ever forget
the disrespect shown to Judge Garland and to everyone in this body, but
to double down on that break with precedent, on that break with
tradition, by changing the rules of the Senate permanently with respect
to Supreme Court Justices--I know they can say that Democrats did it a
few years ago. That is true. But the Supreme Court is a different
animal entirely, and the decision is one I hope my Republican
colleagues will rethink.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, when Senate Republicans executed their
unprecedented block of President Obama's nominee Merrick Garland, the
well-credentialed, well-respected, moderate chief judge of the DC
Circuit, they knew what they were doing. They were willing to set aside
the history and practice of the Senate to make sure no nominee of
President Obama's would fill the vacancy created by Justice Scalia's
death.
As fate would have it, a Republican won the Presidency and then, the
majority leader's path was clear. This is exactly what happened:
President Trump selected Neil Gorsuch from a list put together for him
by the ultraconservative Heritage Foundation and Federalist Society.
These organizations selected Judge Gorsuch because they want to
preserve the conservative 5-to-4 majority of the Roberts Court.
This majority has done terrible damage to many laws Congress has
passed to protect ordinary Americans, and has made it more difficult
for us to pass new laws. My colleagues and I have shined a spotlight on
these rightwing organizations and the $10 million campaign they have
run on Judge Gorsuch's behalf because they believe his view of the law
matches theirs. And therein lies our concern.
These organizations have spent so much money and worked so hard on
Judge Gorsuch's behalf because they could trust, perhaps not 100
percent of the time, but enough of the time, that Judge Gorsuch would
decide cases in ways they would agree with and support.
Judge Gorsuch is an Ivy League educated lawyer with 10 years on the
Federal bench. He is not naive. Even if he refused to acknowledge the
fact that these groups are supporting him, Judge Gorsuch knows as well
as we all do that politics have a real impact on the kinds of nominees
selected to serve on the Supreme Court.
We know he understands this because he said so in his 2005 National
Review Online article, which was entitled ``Liberals'N'Lawsuits.'' In
that article, he wrote that because Republicans had won elections for
the Presidency and for control of the Senate, the Republicans were in
charge of the judicial appointment process. As a result, he said, ``the
level of sympathy liberals pushing constitutional litigation can expect
in the courts may wither over time, leaving the Left truly out in the
cold.''

This article demonstrates that Judge Gorsuch understands that judges
appointed and confirmed by Republicans will have less sympathy for, as
he put it, ``liberals pushing constitutional litigation.'' Clearly,
judges do not make decisions divorced from their personal and
philosophical leanings. However often or however loudly they might
protest, conservatives understand that their arguments about the narrow
role of judges--their claims that Justices are there only to modestly
apply the law and adhere to the Constitution--are bunk. And Judge
Gorsuch must know this too.
Nowhere is this brand of conservative judicial activism clearer than
in the actions of the Roberts Court to reach into our elections to tilt
the political landscape--with a significant impact on whose votes are
heard in our political process and who is able to take part in our
elections.
Based on his writings, Judge Gorsuch clearly understands the
relationship between politics and the courts. I am convinced that
adding Judge Gorsuch to the Roberts Court will only continue the
Court's intervention into politics.
The actions of the Roberts Court are clear. This Court has issued a
series of decisions that have made it easier for conservative
organizations to spend unlimited and unregulated dark money on
elections, and that may have made it harder for people to vote, harder
for people to participate and have those voices heard in the political
process. These decisions have changed who is able to participate in the
democratic process, who gets elected, and, in turn, who gets nominated
to the Supreme Court.
Justice Felix Frankfurter's famous admonition that ``Courts ought not
to enter this political thicket'' captures the challenges for courts
treading into politics. Of course there are times when the courts must
do so--to ensure one person, one vote, for example. But courts must
also be careful when wading into politics because the legitimacy of the
court is itself put at risk.
The most memorable example, of course, came when the Court
effectively decided the 2000 Presidential election in Bush v. Gore.
In the Citizens United and Shelby County decisions, we have seen the
tremendous damage the Court can do to democracy when it tilts the
electoral process so heavily against ordinary Americans.
In the 2010 Citizens United decision, the Roberts Court struck down
bipartisan laws limiting campaign contributions that went back more
than a century. This decision opened an unrestrained flow of money and
potential corruption that has dominated our politics and drowned out
the voices of ordinary Americans ever since.
The Court's decision in this case was not an accident. Chief Justice
Roberts engineered the decision in that case by steering it away from
the narrow question before the Court about how to apply a particular
law and into a broad constitutional question. His efforts

[[Page S2380]]

demonstrate that the Supreme Court has broad power and latitude to push
and shape the law.
This kind of conservative judicial activism directly contradicts what
Justice Roberts famously said during his confirmation hearing. He said
the job of a Justice is to simply call balls and strikes.
Jeffrey Toobin, in a 2012 article in the New Yorker entitled, ``Money
Unlimited: How Chief Justice John Roberts orchestrated the Citizens
United decision,'' and in his recent book, ``The Oath,'' recounts very
clearly how Chief Justice Roberts engineered this campaign spending
decision.
The question originally presented to the Supreme Court in Citizens
United, according to Toobin's account, was a narrow one. It involved
whether one of the provisions of the bipartisan McCain-Feingold
campaign finance law applied to a documentary criticizing a candidate
and not just to television commercials. In fact, Ted Olson, the well-
known conservative lawyer representing Citizens United, the
organization that wanted to run the documentary, made a narrow argument
that the McCain-Feingold law was not meant to apply to that kind of
documentary. This was an argument based not on the Constitution, but on
deciding the case before the Court in the narrowest possible way. Such
a decision would have been restrained.
It became clear during oral arguments that the conservatives on the
Court had the opportunity not just to apply the law, but to change it
entirely. Chief Justice Roberts and the other conservative Justices on
the Court began to do this by aggressively questioning the government's
lawyer on issues not then directly before the Court. As Toobin
describes, ``Through artful questioning, Alito, Kennedy, and Roberts
had turned a fairly obscure case about campaign-finance reform into a
battle over governmental censorship.''
Now that it was clear to Chief Justice Roberts that there was a
majority on the court for making a broader constitutional decision, he
ordered that the case be reargued, rather than simply deciding the
narrow question argued by both Olsen and the government's attorney.
Chief Justice Roberts wanted the Court to take head-on a question that
was not in fact before it and which the Court had decided the opposite
way only 6 years before. When the Roberts Court decided Citizens United
the following year, after reargument, it did so on the broadest
possible ground--unconstitutional grounds--and found that corporations,
like people, have First Amendment rights. It found that these rights
could be violated by limits on campaign contributions.

Again, this outcome did not happen by accident; Chief Justice Roberts
engineered the result. According to Toobin's account, Chief Justice
Roberts chose to assign the opinion for the majority to Justice
Kennedy, who was known to be very skeptical of campaign finance laws
and believed that limits on campaign spending violate free speech. By
doing so, Chief Justice Roberts ensured that the Citizens United
decision would be a broad one, and it was.
The way the Court chose to reach out and change the law was wholly
unnecessary to decide the case at hand. And it certainly was not
judicial restraint; it was judicial activism. The Court in Citizens
United reached out to overturn precedent and upend laws dating back
more than a century to find new rights for corporations to funnel
untold millions into our political system.
This decision also severely limited the ways in which Congress could
take action to continue to pursue the aims of campaign finance laws to
limit political corruption.
In his article, Mr. Toobin said:

[Citizens United] reflects the aggressive conservative
judicial activism of the Roberts Court. It was once liberals
who are associated with using the courts to overturn the work
of the democratically elected branches of government, but the
current Court has matched contempt for Congress with a
disdain for many of the Court's own precedents.
When the Court announced its final ruling on Citizens
United, on January 21, 2010, the vote was five to four and
the majority opinion was written by Anthony Kennedy. Above
all, though, the result represented a triumph for Chief
Justice Roberts. Even without writing the opinion, Roberts,
more than anyone, shaped what the Court did.

But the Roberts Court was not done with its activism to radically
change the landscape of our elections. In another narrow 5-to-4
decision in Shelby County in 2013, the Court substituted its
conclusions for that of Congress and gutted core protections of the
Voting Rights Act--protections which were essential for the right to
vote for millions of Americans. Again, this was not a decision the
Court needed to or should have reached. And again, it was a decision
engineered by Chief Justice John Roberts and the conservative majority
on the Supreme Court.
Back in 1982, Chief Justice Roberts--then a special assistant to the
Attorney General--was the point person for the Reagan administration's
opposition to strengthening the Voting Rights Act. At that time,
Congress acted to fix a hole in the Voting Rights Act that the Supreme
Court had opened in a 1980 decision. John Roberts was opposed to these
efforts to make clear that election practices or procedures that result
in discrimination, not only those with the intent to discriminate,
violate the Voting Rights Act.
In 1982, Congress successfully passed their fix over the objections
of John Roberts and the Reagan administration. If you look at John
Roberts' memos and articles from that period of time--in which he was a
strong advocate within the administration for the position it took--his
view of the Voting Rights Act was clear. It was a view he would apply
years later as Chief Justice of the Supreme Court when he led a 5-to-4
majority to gut section 5 of the Voting Rights Act.
The preclearance provisions of section 5 mandated that any changes to
voting laws in States with a long history of discrimination have to be
approved in advance--or precleared--by the Justice Department or by the
DC district court. These provisions, passed a century after the
conclusion of the Civil War, for the first time effectively guaranteed
the rights protected by the 14th and 15th Amendments in many parts of
the country. Section 5 changed the landscape of our democracy and
opened the door for millions of people to exercise their right to vote.
These provisions of the Voting Rights Act were reauthorized nearly
unanimously by Congress in 2006. Before reauthorizing the Voting Rights
Act, the Senate Judiciary Committee alone held nine hearings on it. The
thousands of pages of material the Senate reviewed, together with the
record developed in a dozen hearings in the House, clearly established
why it was so important to maintain preclearance in order to protect
the right to vote in jurisdictions with a long history of voting
discrimination.
Yet, in Shelby County, the Roberts Court ignored this evidence and
the Court's long precedent. The Court made its own determination about
the value of the extensive evidence reviewed by Congress and struck
down these core provisions. The Court refused to defer to the extensive
findings and determination of Congress even though Congress is
expressly charged by the 14th and 15th Amendments to enforce the
guarantees of those Amendments--the guarantee of the right to vote. The
Court did what John Roberts fought to do years before and weakened the
Voting Rights Act. So much for judicial restraint. So much for just
calling balls and strikes.
A Justice and a Court devoted to judicial restraint, with an
understanding of the separation of powers, never would have ignored
Congress acting at the height of its constitutional powers and its
factfinding capacity. Yet Chief Justice Roberts and the narrow
conservative majority on the Court chose to act--to reach out and to
gut one of the core protections of the fundamental right to vote.
We now know that Congress got it right and the Supreme Court got it
wrong in its judgment about the continuing need for section 5 of the
Voting Rights Act. Immediately after the Shelby County decision,
numerous States previously covered by section 5 immediately passed
onerous voter ID laws and other barriers that affected the right to
vote of millions of people. Some of these laws were even enacted with
discriminatory intent, not just discriminatory effect--in other words,
they were blatantly meant to discriminate in voting.

These newly raised barriers had a clear impact in last year's
elections.

[[Page S2381]]

For the first time in two generations, thanks to the actions of the
Roberts Court, we risk unraveling the progress my friend John Lewis
fought for alongside so many others during the civil rights movement.
During his confirmation hearing, I asked Judge Gorsuch about the
Shelby County decision, since he often explained the constraints on his
approach to judicial decision making in terms of the separation of
powers. He said several times that judges make terrible legislators,
that courts lack the staff, capacity, and training to do the kind of
factfinding that is an essential part of the legislative process. Yet,
when I asked him whether the Court's decision in Shelby County raised
the kinds of concerns he had noted about the limits of judges as
policymakers and legislators, he declined to answer.
But this is about more than Judge Gorsuch's refusal to answer. It is
about more than the narrow view he expressed of the role of a judge or,
particularly, a Justice--a narrow view that is not a reflection of the
real world. Both the process and the outcome in Shelby County and in
Citizens United raised exactly the kinds of concerns that make it so
important for the Senate to understand Judge Gorsuch's judicial
philosophy before putting him on the Supreme Court. Judge Gorsuch would
become part of a newly empowered 5-to-4 conservative majority on the
Roberts Court, which has been anything but restrained in moving the law
for the benefit of corporations and against individual rights.
Taken together, these two decisions, Citizens United and Shelby
County, have made it harder for millions of Americans to have their
voices heard in our election process and their votes counted at the
ballot box. Since Citizens United, the floodgates have opened to
unfettered corporate money in our elections. Since Shelby County, 13
States have enacted laws placing limitations on voting. Many of these
are in States that would have been prevented from doing so in the first
place before the Court gutted section 5 of the Voting Rights Act. After
Shelby County, these States could pass such laws, and they did,
disenfranchising tens of thousands of voters in the process.
My Democratic colleagues and I asked Judge Gorsuch many questions to
try to understand his pattern of narrowly interpreting laws meant to
protect individual rights or worker safety in ways at odds with the
law's purpose. For example, the narrow interpretation Judge Gorsuch
took on the Individuals with Disabilities Education Act, IDEA, would
have left Luke Perkins and thousands of special needs children like
Luke without a chance to make educational progress. His interpretation
was so at odds with the purpose of the IDEA law that the Supreme Court
unanimously rejected and criticized Judge Gorsuch's narrow standard in
a case they decided just a few weeks ago.
Time and again, Judge Gorsuch threw up his hands and told us that if
we disagreed with this narrow reading of the relevant law, that
Congress should do better. In his view, the problem was not the Court--
which he seemed to cast as an innocent bystander--but, rather, the way
Congress had written the law.
By tilting the political playing field so heavily toward corporations
and unfettered dark money and against individuals, the Roberts Court
has impacted the composition of who is in Congress. The Court has made
it even harder for Congress to take meaningful action to, say, pass
laws to protect workers' safety or the access of students with special
needs to an education. In turn, these decisions have had a real-world
impact by changing who gets to participate in the political process and
therefore who gets elected and who has input on the kinds of laws that
are passed--and, of course, who gets nominated to the U.S. Supreme
Court.
The actions of the Roberts Court in Citizens United and Shelby County
make clear the stakes of the Gorsuch nomination. They make clear what
the Senate Republicans had in mind in their unprecedented and arrogant
refusal to consider President Obama's nomination of Merrick Garland to
the Supreme Court. They wanted, instead, a Justice like Judge Gorsuch
who would continue the rightward march of the 5-to-4 conservative
majority on the Roberts Court. And the United States Senate should not
allow this brazen gambit to succeed.
I urge my colleagues to oppose this nomination.
I yield the floor.

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