[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2383-S2385]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. McCONNELL. Mr. President, the Senate has considered the 
nomination of Judge Neil Gorsuch for many weeks now. We have seen his 
impressive credentials. We have reviewed his incredible record. We have 
heard glowing praise on a nearly daily basis from colleagues and 
students, from judges and newspaper editorials, from Democrats and from 
Republicans.
  Judge Gorsuch is independent, and he is fair. He is beyond qualified, 
and he will make a stellar addition to the Supreme Court.
  Hardly anyone in the legal community seems to argue otherwise, and 
yet, our Democratic colleagues appear poised to block this incredible 
nominee with the first successful partisan filibuster in American 
history. It would be a radical move, something completely unprecedented 
in the history of our Senate and out of all proportion to the eminently 
qualified judge who is actually before us. But then again, this isn't 
really about the nominee anyway. The opposition to this particular 
nominee is more about the man who nominated him and the party he 
represents than the nominee himself. It is part of a much larger story, 
another extreme escalation in the left's never-ending drive to 
politicize the courts and the confirmation process.
  It is a fight they have waged for decades with a singular aim: 
securing raw power, no matter the cost to country or institution. It 
underlies why this threatening filibuster cannot be allowed to succeed 
or continue--for the sake of the Senate, for the sake of the Court, and 
for the sake of our country.
  I think a look back through history will help every colleague 
understand why. I always had a particular interest in the history of 
judicial nominations. It is an interest that predates my service here 
as a Senator. I remember serving on the staff of a Senator on the 
Judiciary Committee during a time when two different judicial nominees 
were being considered. One, Harrold Carswell, was voted down on the 
Senate floor--correctly, in my view. Another, Clement Haynesworth, also 
failed to receive the necessary support for confirmation--but in error, 
I thought.
  It piqued my interest on what advice and consent should mean in the 
Senate, and what it actually meant in practice. I would learn later 
that I was witnessing the nascent stirrings of what would soon become 
the so-called judicial wars--the left's efforts to transform 
confirmations from constructive debates over qualifications into raw 
ideological struggles with no rules or limits.
  It is a struggle that escalated in earnest when Democrats and 
leftwing special interests decided to wage war on President Reagan's 
nominee in 1987, Robert Bork. Polite comity went out the window as 
Democrats launched one vicious personal attack after another--not 
because Bork lacked qualifications or suffered some ethical failing, 
but because his views were not theirs. The Washington Post described it 
at the

[[Page S2384]]

time: ``It's not just that there has been an intellectual vulgarization 
and personal savagery to elements of the attack, profoundly distorting 
the record and the nature of the man.''

  As NPR would later observe, the left's ``all-out campaign to defeat 
the nomination . . . legitimized scorched-earth ideological wars over 
nominations at the Supreme Court.''
  I was there. I saw it all. I remember the viciousness of it. I also 
remember feeling that the Senate was reaching a turning point where a 
judicial nominee would no longer be evaluated on their credentials but 
on their ideology. That observation, unfortunately, has proven correct, 
with Democrats raising the stakes and moving the goalposts each step of 
the way.
  They certainly did so under the next Republican President, George 
H.W. Bush. We all know what happened to Clarence Thomas. If the gloves 
were off for Bork, the brass knuckles came out for Thomas. Here is how 
left-leaning columnist Juan Williams described the situation: ``To 
listen or read some news reports on Thomas over the past month is to 
discover a monster of a man, totally unlike the human being full of 
sincerity, confusion, and struggles whom I saw as a reporter who 
watched him for some 10 years.''
  That is Juan Williams speaking on Clarence Thomas. Williams said:

       He has been conveniently transformed into a monster about 
     whom it is fair to say anything, to whom it is fair to do 
     anything.

  By the time Bill Clinton won the Presidency, ``Bork'' had become a 
verb and ``high-tech lynching'' was on the lips of the Nation. Wounds 
were fresh and deep when this Democratic President had the chance to 
name two Justices of his own to the Court.
  Republicans could have responded in kind to these nominees, but that 
is not what happened. When President Clinton nominated Ruth Bader 
Ginsburg, the Senate confirmed her 96 to 3. When President Clinton 
nominated Stephen Breyer, the Senate confirmed him 87 to 9. I, like the 
vast majority of Republicans, voted for both of them. We did so in full 
knowledge of the considerable ideological differences between these 
nominees and ourselves. Ginsburg, in particular, had expressed notably 
extreme views--even advocating for the abolition of Mother's Day. A 
nominee for the Supreme Court who advocated the abolition of Mother's 
Day was confirmed 96 to 3.
  Could we have Borked these nominees? Could we have tried to 
filibuster them? Sure, but we didn't.
  We resisted the calls for retribution and did our level best to halt 
the Senate's slide after the Bork and Thomas episodes. We respected the 
Senate's tradition against filibustering Supreme Court nominees.
  Now, the tradition not to filibuster extended beyond just the Supreme 
Court. When President Clinton named two highly controversial nominees 
from California to the Ninth Circuit, some on my side wanted to defeat 
their nominations with a filibuster. The Republican leadership said: 
Let's not do that. To their great credit, Majority Leader Lott and 
Judiciary Chairman Hatch implored our confidence not to do that. 
Senator Lott filed cloture on these nominees to advance the nomination. 
He, Senator Hatch, and I and a vast majority of the Republican 
Conference voted for cloture to give them an up-or-down vote. We didn't 
do this because we supported the nominees. In fact, most of us voted 
against their actual confirmation, but we thought they deserved an up-
or-down vote. That, after all, was the tradition of the Senate.
  Given that we were in the majority and these nominations were highly 
controversial, our determination not to filibuster but instead advance 
them to an up-or-down vote was not, as you might imagine, popular with 
our base. But we resisted the political pressure. Again, we respected 
the Senate's tradition against filibustering judicial nominees.
  But it would matter little to our Democratic friends.
  Less than a year later, President Bush 43 comes to office. Before he 
had submitted a single judicial nominee, our Democratic colleagues held 
a retreat in Farmington, PA. There, according to participants, they 
determined to change the ground rules for how they would handle 
judicial nominees.
  As the New York Times reported, Democrats apparently decided ``there 
was no obligation to confirm someone just because they are scholarly.'' 
Our friend the Democratic leader said at the time that what he and his 
colleagues were ``trying to do was set the stage'' for yet another 
escalation in the left's judicial wars.
  Senate Democrats soon became the majority in the Senate due to then-
Senator Jeffords' party switch. To help implement the imperative from 
their retreat ``to change the ground rules,'' the current Democratic 
leader used his position on the Judiciary Committee to hold a hearing 
on whether ideology should matter in the confirmation process.
  Now, it won't surprise you that the conclusion he and his colleagues 
reached was that it should. So they killed in committee, either through 
inaction or via committee vote, qualified judicial nominees who did not 
fit their preferred ideology. I know, because I was on the committee 
then. Eighteen months later, our Democratic colleagues lost control of 
the Senate, and, therefore, control of the Judiciary Committee. Our 
colleague, the current Democrat leader, again took center stage.
  The New York Times noted that ``over the last two years, Mr. Schumer 
has used almost every maneuver available to a Senate Judiciary 
Committee member to block the appointment'' of the Bush administration 
judicial nominees. Then, in 2003, according to the New York Times, he 
``recommended using an extreme tactic, the filibuster,'' to block them.
  ``Mr. Schumer,'' it said, ``urged Democratic colleagues in the Senate 
to use a tactic that some were initially reluctant to pursue, and that 
has roiled the Senate: a filibuster on the floor of the chamber to 
block votes on nominees that he and other Democrats had decided to 
oppose.''
  It is hard to express how radical a move that was at that time 
because it completely changed the way the Senate had handled these 
nominations for our entire history. Even filing cloture on a judicial 
nominee had been rare before then, and actually defeating any judicial 
nominee by filibuster, other than the bipartisan opposition to the 
nomination of Abe Fortas back in 1968, in a Presidential election year 
was simply unheard of.
  No longer.
  Democrats blocked cloture 21 times on 10 different circuit court 
nominees, including on outstanding lawyers like Miguel Estrada, whose 
nomination was filibustered an incredible 7 times.
  These are not inflated statistics like the supposed 78 filibusters 
our Democratic colleagues are now alleging occurred during the Obama 
administration, which include numerous instances in which the prior 
Democratic leader unnecessarily filed cloture petitions. No, what I am 
talking about are real and repeated filibusters used by Democrats to 
defeat nominations.
  In the face of this wholly unprecedented change in the norms and 
traditions of the Senate, we Republicans contemplated using the nuclear 
option. We decided against it. Fourteen colleagues--three of whom still 
serve in this body--reached an accord whereby filibusters would be 
overcome for 5 of the 10 nominees in question. Regretfully, Miguel 
Estrada was not one of them. He had withdrawn his nomination after 
being put through an unprecedented ordeal.
  Yet, the ink was barely dry on the accord I mentioned when Senate 
Democrats, led, in part, by our friend the Democratic leader, again did 
something exceedingly rare in the nominations process: They tried to 
filibuster Samuel Alito's nomination to the Supreme Court. No member of 
the Republican Conference, by the way, has ever voted to filibuster a 
Supreme Court nominee--ever. Nobody on this side of the aisle has ever 
done that.
  Again, it would have been easy for Republicans to have retaliated 
when President Obama took office, but just like under Clinton, that is 
not what happened. How did we treat Obama's lower court nominees?
  At the time, our Democratic colleagues decided to ``fill up the DC 
Circuit one way or the other,'' as the Democratic leader put it. Senate 
Republicans had defeated a grand total of two of President Obama's 
judicial nominees. At the time that they decided to employ the nuclear 
option and

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fill up the DC Circuit, Senate Republicans had confirmed 215 Obama 
judges and had defeated just 2.
  So our Democratic colleagues' decision to employ the nuclear option 
in 2013 was not in response to rampant obstruction but was, in the 
words of the Washington Post, a ``power play.'' By the way, at the 
time, I don't recall the Democratic leader or any other of our 
Democratic colleagues repeating the refrain: If there are not 60 votes 
for a nominee, you don't change the rules; you change the nominee.
  They were not saying that then.
  What did they do? They changed the rules. It was a power play, but it 
was also something else. It was a tacit admission by our Democratic 
colleagues that the Senate tradition of up-or-down votes of judicial 
nominees that they had first upset back in 2003 by starting the 
practice of filibustering judicial nominees was a tradition they should 
have respected. Unfortunately, it took them 10 years to realize this 
and only after they captured the White House and only after Republicans 
also used, on a smaller scale, the tool that they, themselves, 
inaugurated a decade earlier.
  And how did we treat President Obama's Supreme Court nominees? Did we 
try to filibuster them like our Democratic colleagues tried with 
Justice Alito? Of course not.
  When President Obama nominated Sonia Sotomayor and Elena Kagan, we 
treated both nominees fairly, as they would later say themselves, and 
we secured an up-or-down vote for both. Most Republicans had 
significant misgivings about these nominees. Many of us voted no on the 
confirmations, but we did not think it would be right to deny them up-
or-down votes.
  I and the ranking member of the Judiciary Committee at the time, Jeff 
Sessions, even protested when then-Democratic Leader Reid tried to file 
cloture on the Kagan nomination because we were determined to prevent 
even the hint of a filibuster. Again, we respected the Senate's 
tradition against filibustering Supreme Court nominees.
  I know our friends on the Democratic side will be quick to interject 
with a predictable protest about last year, though they seem to forget 
their own position on the issue. When Justice Scalia passed away, the 
Senate chose to follow a standard that was first set forth by then-
Senator Biden, when he was chairman of the Judiciary Committee, and 
then was expanded upon by the current Democratic leader, himself. The 
Senate exercised its constitutional advice and consent role by 
withholding its consent until after the election so that the next 
President, regardless of party, could select a nominee. It is a 
standard I held to even when it seemed inevitable that our next 
President was going to be Hillary Clinton. It is also a standard that 
President Obama's own legal counsel admitted that Democrats would have 
followed themselves had the shoe been on the other foot.
  The majority of the Senate expressed itself then by withholding 
consent.
  The majority of the Senate wishes now to express itself by providing 
consent to Judge Gorsuch.
  The bipartisan majority that supports him cannot do so if a partisan 
minority filibusters. They are prepared to do so for the first time in 
American history, and the Democratic leader has mused openly about 
holding this seat vacant for an entire Presidential term.
  We will not allow their latest unprecedented act on judicial 
nominations to take hold. This will be the first and last partisan 
filibuster of a Supreme Court nomination.
  All of this history matters. I know the Democratic leader would 
rather not revisit the circumstances that brought us to this moment. I 
know the Democratic leader would rather not talk about it. Of course, 
he doesn't want to talk about it. He and his party decided to change 
the ground rules for handling judicial nominations.
  He and his party pioneered the practice of filibustering lower court 
judicial nominees. He and his party launched the first partisan 
filibuster of a Supreme Court nominee. He and his party deployed the 
nuclear option in 2013. Now they are threatening to do something else 
that has never been done in the history of the Senate: successfully 
filibuster a Supreme Court nominee on a purely partisan basis.
  For what reason--because he is not qualified or because he is not fit 
for the job? No, it is because he was nominated by a Republican 
President.
  This is the latest escalation in the left's never-ending judicial 
war--the most audacious yet. It cannot and it will not stand.
  There cannot be two sets of standards--one for the nominees of 
Democratic Presidents and another for the nominee of a Republican 
President. The Democratic leader, essentially, claimed yesterday that 
Democratic Presidents nominate Justices who are near the mainstream but 
that Republican Presidents nominate Justices who are far outside the 
mainstream.
  In what universe are we talking about here?
  I would say to my friend from New York that few outside of Manhattan 
or San Francisco believe that Ruth Bader Ginsburg is in the mainstream 
but that Neil Gorsuch is not.
  To quote a long-time Democrat and member of the left-leaning American 
Constitution Society, there is simply no principled reason--none--to 
vote no on Judge Gorsuch's nomination, even less of one to block that 
vote from occurring at all.
  Let me say this to my Democratic colleagues: If you truly cannot 
support the nomination of this eminently qualified nominee, then at 
least allow the bipartisan majority of the Senate who supports Gorsuch 
to take an up-or-down vote. You already deployed the nuclear option in 
2013. Do not trigger it again in 2017.