[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2385-S2387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Reservation of Leader Time

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
leadership time is reserved.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until the cloture vote on the Gorsuch nomination will be equally 
divided between Senators Grassley and Feinstein or their designees.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I was going to ask unanimous consent to 
that extent. I guess you have already announced that it is in place; is 
that right? I am going to add something to what the Acting President 
pro tempore just said, so let me start over again.
  I ask unanimous consent that the time until 10:45 a.m. be equally 
divided between Senator Feinstein or her designee and myself or my 
designee and that the time from 10:45 a.m. to 11 o'clock be reserved 
for Senator Schumer's leader remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask for a clarification. Is the 
remaining 17 or 18 minutes equally divided?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. GRASSLEY. Mr. President, that is what my unanimous consent 
request said.
  Mr. DURBIN. Mr. President, I just wanted to get more specific. I am 
not questioning what the Senator asked for.
  Do we have 9 minutes each or 8 minutes each?
  Mr. GRASSLEY. I will probably need more than 9 minutes, but I will 
put the rest of my statement in the Record.
  Mr. DURBIN. So will I.
  Mr. President, I defer to the chairman of the committee if he would 
like to speak first.
  Mr. GRASSLEY. Mr. President, within the next hour or so, we will 
learn whether the minority will come to their senses or whether they 
will engage in the very first partisan filibuster of a Supreme Court 
nominee. All indications are that they are committed to their course. 
That is unfortunate. It truly is.
  The question one has to ask is this: What, exactly, is so 
objectionable about this nominee that he should be subjected to the 
first partisan filibuster in U.S. history? Is he, really, not well 
qualified?
  He attended Columbia for his bachelor's, Harvard for law school, 
Oxford for his doctorate. He clerked for not one--but two--Supreme 
Court Justices. He has spent over 10 years on the circuit court and has 
heard 2,700 cases. It is clear, then, that he is extremely well 
qualified.
  So what is it? What makes this nominee so objectionable?
  The truth is, throughout this process, the minority, led by their 
leader, has

[[Page S2386]]

been desperately searching for a justification for their preplanned 
filibuster. Over the course of the last couple of months, they have 
trotted out one excuse after another, but nothing will stick.
  They said he isn't mainstream, but that is not true. Everyone from 
Obama's Solicitor General to Rachel Maddow has said he is mainstream. 
They said he isn't independent, but everyone knows he is an independent 
judge. He is his own man, and he understands the role of a judge.
  Then they roll out this ridiculous argument that he is for the big 
guy and against the little guy. Even liberal law professors like Noah 
Feldman made fun of that attack. He called it ``a truly terrible 
idea.'' Then they said we should hold him responsible for the legal 
positions he took on behalf of the U.S. Government. The only problem 
there is, we have had a lot of nominees who have represented the U.S. 
Government. They worked for it; the government was their client. The 
other side certainly didn't want to hold Justice Kagan responsible for 
taking the truly extreme position as Solicitor General that the U.S. 
Government was constitutionally permitted to ban pamphlets. So that 
argument fell flat as well.
  Then, of course, after they ran out of substantive arguments against 
the judge and his record, they resorted to attacks on his supporters or 
the President who nominated him or the selection process, anything--
anything--to distract from the judge and the stellar record he has.
  They trotted out this absurd claim that we should reject the judge 
not because of some opinion he has written but because those who 
support his nomination have the gall to actually speak out and make 
their voices heard, except they forgot to check with their own 
supporters first to make sure none of them are spending so-called dark 
money. Of course, they are spending money on issue advocacy, just as 
the law permits and the Constitution protects under the First 
Amendment.
  As we all know, issue advocacy during Supreme Court nominations is 
absolutely nothing new. Those who are complaining about issue advocacy 
today don't seem to remember the TV ads the far left ran attacking 
Judge Bork in 1987. I remember those ads. I remember the ads the left 
ran against Justice Thomas as well. Of course, outside groups on the 
left have attacked every Republican nominee since.
  So expressing selective outrage over issue advocacy doesn't advance 
their cause either, but they still keep it up.
  Finally, the talking point we have heard repeated most often over the 
last 24 hours is that Candidate Trump ``outsourced'' his selection 
process to conservative groups. I must say, I find that argument the 
oddest of all. It is the kind of thing Justice Scalia would call ``pure 
applesauce.''
  The President didn't outsource the selection process to conservative 
groups. He made his list public for the entire country to review during 
the campaign--the first President to do that. If anything, he 
outsourced the selection process to whom? The voters--the American 
people.
  So what do you do? You are out of substantive arguments from the 
other side. Even shots fired at the judge's supporters somehow 
boomerang back and hit your own advocacy groups. We have seen all of 
this before. I have been through a few of these debates over the years. 
When a Republican occupies the Oval Office, the nominees may change, 
but the attacks remain the same.
  You will hear today the same poll-tested catch phrases we have all 
heard time and again. You will hear words and phrases like ``outside 
the mainstream,'' ``far right,'' and ``extreme.'' Invariably, these are 
words the left tries to pin on every nominee of a Republican President 
and the people he submits to the Senate. With each nominee, the 
playbook on the left seems to be the very same. The nomination process, 
it seems, is a desperate attempt to retell the same old preordained 
narrative.
  As I have said, those of us who have been through a few of these 
episodes have heard it all before, and we are going to hear it in the 
next few hours again, but this time something is very different. This 
time, they intend to use the same old preordained narrative to justify 
the first partisan filibuster in the 220-year history of the United 
States. Of course, this result was preordained because as the minority 
leader said weeks before the President was even sworn into office, 
``it's hard for me to imagine a nominee that Donald Trump would choose 
that would get Republican support that we [Democrats] could support.''
  You have already committed to the far left that you will launch the 
first partisan filibuster in U.S. history. So you are stuck. You have 
to press forward, don't you, even though you know the effort is doomed 
to fail. You know he will be confirmed, and you know in your heart of 
hearts he deserves to be confirmed. That is why this is an especially 
sad state of affairs, and I hope my colleagues will change their minds.
  At the end of the day, we are left with an exceptional nominee, with 
impeccable credentials and broad bipartisan support. In short, we have 
in Judge Gorsuch a nominee who proves without a doubt that the minority 
leader would lead a filibuster against anyone nominated by this 
President. That is unfortunate because it is not the way it has to be, 
but it is a situation we cannot accept.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The minority whip is recognized.
  Mr. DURBIN. Mr. President, for 3 straight days, the Senate Republican 
leader has come to the floor and has given us a history of Presidential 
nominations to the Supreme Court, but clearly an investigation is 
necessary. There must have been a hacking into his computer because he 
can't print the name ``Merrick Garland'' to include in his speech. The 
Senator from Kentucky, the Republican leader, has failed to mention 
that name because that name is the reason we are in this spot today.
  When Justice Antonin Scalia passed away, President Obama exercised 
his constitutional responsibility to send a nominee to the Senate to 
fill the vacancy on the Supreme Court. For the first time in the 
history of the Senate--for the first time ever--this Republican-led 
Senate refused to give this nominee a hearing and a vote. It had 
never--underline the word ``never''--happened before.
  Was the reason that he was unqualified? Of course not: he was 
unanimously ``well qualified,'' serving on the DC Circuit Court. The 
reason was stated clearly by Senator McConnell: We are going to place a 
bet that the next President will be a Republican, and we will let them 
fill this vacancy.
  When the Republicans come to the floor, as they have this morning 
talking about the politicization of this process, the reason we are 
here, when we should be celebrating the 1-year anniversary of Merrick 
Garland on the Supreme Court, is because they kept that position vacant 
so it could be filled by a Republican President. That is exactly why we 
are here today.
  This notion that it is somehow fanciful that the choice of Neil 
Gorsuch was made by outside groups is belied by the very words of the 
President himself, who thanked the Federalist Society and the Heritage 
Foundation--two special interest, Republican organizations--for giving 
him a list of nominees for the Supreme Court. It was very open and 
public, and there was gratitude--political gratitude--that they came up 
with the name Neil Gorsuch. That is a fact.
  When we look at the history that has led us to this moment, the 
Senator from Kentucky, the Republican leader, has to accept what is 
clear. In the history of the United States of America, until Senator 
McConnell's days under President Obama, exactly 68 nominees had been 
filibustered. Under Senator McConnell and the Republicans, 79 nominees 
of President Obama's were filibustered. It was an abuse of the 
filibuster never seen before in the history of our Nation, and it was 
that abuse of the filibuster and statements made that they would leave 
vacancies on critical courts, like the DC Court of Appeals, there 
forever and ever amen, that led to the decision 4 years ago to say that 
we would employ a change in the rules so we could finally fill these 
court positions--finally break the filibuster death grip--which Senator 
McConnell brought to this Chamber in a way never before seen in 
history.
  So the Senator from Kentucky has made history. He comes to the floor 
every day and tells us history. He made history in the number of 
filibusters he

[[Page S2387]]

used on this floor. He made history in denying a Presidential nominee 
the opportunity for a hearing and a vote, which had never--never--
happened before in the history of the United States. Talk about 
partisanship.
  When it comes to Judge Gorsuch, I read his cases. I sat through the 
hearings. I was in the Senate Judiciary Committee. We took a measure of 
the man. He was careful to avoid any question that he could when it 
came to his position on cases and issues and values, and that is not 
unusual. Supreme Court nominees do that.
  So we tried to look at his cases. What do the cases that he decided 
reveal about the man? Two or three cases came right to the front. The 
first involved the sad story of a frozen truckdriver on Interstate 88 
outside of Chicago in January a few years back. It was 14 degrees below 
zero, and the brakes on his trailer froze. He pulled to the side of the 
road, called his dispatcher who said: Stay with the truck. We are 
sending somebody. Hours passed. He was going through hypothermia. He 
was freezing. He called the dispatcher and said: I have to do 
something. He said: You either drive this disabled truck out on the 
interstate and take your best chances or you stick with the truck. He 
decided to unhitch the trailer and drive to a gas station, gas up and 
warm up, and come back. For that he was fired.
  Seven judges looked at that case to decide whether it was fair to 
fire Alphonse Maddin. Six of the judges said: No, he did the right 
thing. One judge said: I rule for the trucking company that fired him--
Neil Gorsuch, the nominee for the Supreme Court.
  In the Hobby Lobby case, the decision was basic, who should decide 
the healthcare of thousands of workers. Well, the Green family who owns 
Hobby Lobby said: Our religious beliefs should dominate. We should 
decide family planning and birth control for our employees and their 
health insurance. Judge Gorsuch said: That is right because they own a 
corporation, and a corporation is a person, and as a corporation, they 
can have sincere religious beliefs. It was a choice between a corporate 
ownership of a family and 13,000 employees and their own personal 
religious rights, and Judge Gorsuch ruled for the corporation.
  Kansas State University. A Kansas State University professor, Grace 
Hwang, after working there for many years, was diagnosed with cancer 
and had to go through a bone marrow transplant. She took 6 months off. 
Then, when she was called back to work, she called the university and 
said: I understand there is an influenza outbreak on campus, and I am 
afraid, after having just had a bone marrow transplant, to be exposed 
to influenza at this point. They said: You either come back and teach 
or you are fired. She didn't come back. They fired her. It was Judge 
Gorsuch who said their employer was right; Kansas State University was 
right.
  Those are insights into the values of a man who wants a lifetime 
appointment to the U.S. Supreme Court, the highest Court in the land. 
The questions we have raised about his judgment and his values go to 
the heart of who we are and what we want to be. Do we want the Supreme 
Court to continue to be a voice for the corporations, the corporate 
elite, and employers? Do we want to exclude the opportunities of common 
people like that truckdriver, Al Maddin, to have his day in court and 
be treated fairly? That is what it comes down to. It is a fundamental 
question of fairness and justice.
  I am sorry, because I love the Senate and I have spent a good part of 
my life here, that we have reached this moment. But it is this effort 
to fill the courts of this Nation with Republican appointments, even at 
the expense of violating Senate traditions that are over 100 years old, 
that has brought us to this moment.
  As someone said, the nuclear option was used by Senator McConnell 
when he stopped Merrick Garland. What we are facing today is the 
fallout.
  Mr. President, I yield the floor.