[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2387-S2388]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.
  Mr. SCHUMER. Mr. President, this past week, the American people have 
been exposed to a contentious debate here on the Senate floor about the 
nomination of Judge Gorsuch to the Supreme Court.
  The American people have heard many arguments about the judge's 
merits and his shortcomings. They have also heard Senators litigate 
four decades of fierce partisan wrangling over the composition and 
direction of the Federal judiciary. That debate, that long debate, has 
informed the current one about Judge Gorsuch. Newer Members may not 
remember all the details. Friends of mine, like Senator Hatch, probably 
remember too many of them. Still, the vote on Judge Gorsuch and the 
decision by the majority leader to move to change the rules has roped 
in all of that history.
  Now, how did we get here? The truth is, over the long history of 
partisan combat over judicial nominations, there is blame on both 
sides. We believe that the blame should not be shared equally between 
Republicans and Democrats. We believe the Republican Party has been the 
far more aggressive party in the escalation of tactics and in the 
selection of extreme judicial candidates, while Democrats have tended 
to select judges closer to the middle.
  Keep this in mind: The last time a Republican-controlled Senate 
confirmed the Supreme Court nomination of a Democratic President was 
1895. Nonetheless, each side comes here today in full confidence that 
their side is in the right. It was once said that ``antagonism is never 
worse than when it involves two men each of whom is convinced that he 
speaks for the goodness and rectitude.'' So it is today.
  My Republican friends feel that they have cause to change the rules 
because the Democrats changed the rules on the lower court nominees in 
2013. We believe we had to change the rules in 2013 because the 
Republicans ramped up the use of the filibuster to historic 
proportions, forcing more cloture votes under President Obama than 
during all other Presidents combined--more cloture votes under Obama 
than under George Washington all the way through to George Bush.
  My Republican friends think they have cause to change the rules 
because we are about to deny cloture on the nomination of Judge 
Gorsuch. We believe what Republicans did to Merrick Garland was worse 
than a filibuster, declaring mere hours after Justice Scalia's death 
that they would deny the constitutional prerogative of a President with 
11 months left in his term. As my colleague from Illinois noted, we did 
not hear two words in the long speech of Senator McConnell: Merrick 
Garland.
  We could relitigate these debates for the next hour, mentioning 
everything the Republican leader left out in his remarks. In fact, I am 
pretty sure we could argue endlessly about where, and with whom, this 
all started. Was it the Bork nomination or the obstruction of judges 
under President Clinton? Was it when Democrats blocked judges under 
President Bush or when Republicans blocked them under President Obama? 
Was it Judge Garland or Judge Gorsuch? Wherever we place the starting 
point of this long twilight battle over the judiciary, we are now at 
its end point.
  These past few weeks, we Democrats have given Judge Gorsuch a fair 
process, something Merrick Garland was denied. My colleagues came into 
this debate with an open mind. I think many of them wanted to vote for 
Judge Gorsuch at the outset. So we met with the nominee. We consented 
to and participated in his hearing. But over the course of the hearing, 
during which Judge Gorsuch employed practiced evasions and judicial 
platitudes, the mood of our caucus shifted. Without so much as a hint 
about his judicial philosophy, without a substantive explanation of how 
he views crucial legal questions, all we had to go on was his record, 
and the more we learned about Judge Gorsuch's record, the more we 
didn't like.
  Judge Gorsuch has shown in his rulings and in his writings to side 
almost instinctively with corporate interests over average Americans. 
He hasn't shown independence from the President, who so routinely 
challenges the legitimacy of the judiciary. While he has made a 
studious effort to portray himself as thoughtful and moderate, his 
record shows that, far from being the kind of mainstream candidate for 
the Supreme Court that could earn 60 votes, he may very well turn out 
to be

[[Page S2388]]

one of the most conservative Justices on the bench. An analysis of his 
record in the New York Times showed he would be the second most 
conservative Justice on the bench, and one in the Washington Post 
showed he would be the most conservative Justice, even to the right of 
Justice Thomas.
  For these principled reasons, Judge Gorsuch was unable to earn enough 
Democratic support for confirmation. Because of that, the majority is 
about to change the Standing Rules of the Senate to allow all Supreme 
Court nominees to pass on a majority vote.
  It doesn't have to be this way. When a nominee doesn't get enough 
votes for confirmation, the answer is not to change the rules; it is to 
change the nominee. Presidents of both parties have done so in similar 
situations. On several occasions, Supreme Court nominees were withdrawn 
because they did not have enough support; one was even withdrawn after 
a failed cloture vote.

  So this week we have endeavored to give the majority leader and my 
friends on the other side of the aisle a way out of this predicament. 
We offered them the option to sit down with us Democrats and the 
President and discuss a nominee who would earn enough bipartisan 
support to pass the Senate, not one vetted only by far-right special 
interest groups.
  I came here to the floor each day and made an offer to meet anywhere, 
anytime to discuss a new nominee. I hoped, perhaps naively, that we 
could discuss a way forward that both our parties could live with. 
Unfortunately, there were no counteroffers or discussion offered by the 
other side. But our offer was meant sincerely.
  Democrats and Republicans are caught in such a bunker mentality on 
this issue that we are just talking past each other. I know that many 
of my Republican friends are squeamish and uncomfortable with the path 
we are on, as we Democrats are as well. We have reached a point where 
the level of distrust is so high on this issue, we can't even sit down 
and talk.
  My Republican friends dismiss out of hand the notion that Democrats 
will ever vote to confirm a Republican-nominated judge, despite the 
fact that there were Democratic votes for both Justices Roberts and 
Alito to get them over 60 and despite our plangent attempts to convince 
them otherwise. But make no mistake about it, for all the back and 
forth, when history weighs what happened, the responsibility for 
changing the rules will fall on the Republicans' and Leader McConnell's 
shoulders. They have had other choices; they have chosen this one. No 
one forced them to act; they acted with free will. We offered them 
alternatives; they refused. They hardly entertained any other 
possibilities. It seemed that the Republican leader was, from day one, 
intent on changing the rules if he didn't get his way.
  Frankly, this is how so many of our Republican friends have 
approached the judiciary for a long time. For two decades, they have 
done whatever it has taken to move the bench to an ideological, far-
right position. Independent experts have stated that we have a more 
conservative Supreme Court than we have had in a very long time. 
Nothing--not even the rules, not even the comity of the Senate--seems 
to stop them.
  When the dust settles, make no mistake about it, it will have been 
the Republicans who changed the rules on the Supreme Court. But we take 
no solace that history will put it on their shoulders because the 
consequences for the Senate and for the future of the Supreme Court 
will be far-reaching. The nuclear option means the end of a long 
history of consensus on Supreme Court nominations. It weakens the 
standing of the Senate as a whole as a check on the President's ability 
to shape the judiciary. In a postnuclear world, if the Senate and the 
Presidency are in the hands of the same party, there is no incentive to 
even speak to the Senate minority. That is a recipe for more conflict 
and bad blood between the parties, not less. The cooling saucer of the 
Senate will get considerably hotter.
  The 60-vote threshold on controversial matters is a hallmark of the 
Senate. The majority leader has said so himself. It fosters compromise, 
it fosters bipartisanship, and it makes the Senate more deliberative. 
Sixty votes ought to be the epigraph of the Senate. Losing that 
standard on the Supreme Court, a hugely controversial matter, erodes 
the very nature of this body.
  The 60-vote bar in the Senate is the guard rail of our democracy. 
When our body politics is veering too far to the right or to the left, 
the answer is not to dismantle the guardrails and go over the cliff but 
to turn the wheel back toward the middle. The answer is not to undo the 
guardrails--the rules--it is to steer back to the middle and get a more 
mainstream candidate.
  With respect to the Supreme Court, the 60-vote threshold operates as 
a guardrail against judicial extremism. When 60 votes--typically a 
bipartisan supermajority--are required for confirmation, nominees tend 
to be in the judicial mainstream. The only nominee on the Court to be 
confirmed with less than 60 votes was Justice Thomas, who is widely 
recognized to be the most ideologically extreme Supreme Court Justice. 
It will mean the end of any pressure on any future President to 
nominate someone in the mainstream.
  When it comes to the courts, the guardrails are being dismantled. 
There will be more 5-to-4 decisions, as our ranking member of the 
Judiciary Committee has pointed out. There will be less faith in the 
Supreme Court because it will be seen as a political body, an extension 
of our most divisive debates. As a result, America's faith in the 
integrity of the Court and the trust in the rule of law will suffer.
  In conclusion, I am disheartened that we are here. In the sweep of 
history, the Senate has been the place where great, seemingly 
intractable disagreements in American politics finally give way to 
compromise, precisely because we have a set of rules that requires it. 
The story of the Senate is one of fierce debate but eventual 
cooperation. We tend to pull back when things get too heated because we 
all care about this institution and its role in our national life. In 
this case, the cumulative resentments from years of partisan trench 
warfare were too great. Instead of the Senate forcing us to change, 
Senators have decided to change the Senate. I worry a great deal about 
what that means for our future.
  Twenty years ago, I think even the most partisan would say that the 
60-vote threshold was basically inviolable. Today, it will be gone for 
all nominations, but at least not for legislation. My friend the 
majority leader has said he has no interest in removing the barrier for 
legislation.
  I agree with him wholeheartedly, and I take him at his word.
  I hope we can get together to do more in future months to ensure that 
the 60-vote threshold for legislation remains, but just as it seemed 
unthinkable only a few decades ago that we would change the rules for 
nominees, today's vote is a cautionary tale about how unbridled 
partisan escalation can ultimately overwhelm our basic inclination to 
work together and frustrate our efforts to pull back, blocking us from 
steering the ship of the Senate away from the rocks.
  There is a reason it was dubbed the ``nuclear option.'' It is the 
most extreme measure, with the most extreme consequences. While I am 
sure we will continue to debate what got us here, I know that in 20 or 
30 or 40 years, we will sadly point to today as a turning point in the 
history of the Senate and the Supreme Court; a day when we irrevocably 
moved further away from the principles our Founders intended with these 
institutions, principles of bipartisanship and moderation and 
consensus.
  Let us go no further on this path.
  I yield the floor.