[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2394-S2404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Thanking Senators and Staff

  Mr. ISAKSON. Mr. President, I will be brief. I also want to make sure 
I don't take advantage of the personal privilege I have as a United 
States Senator, but I am going to anyway.
  I want Senator Coons from Delaware to pause for just a second.
  I want to thank every Member of the Senate, Republican and Democrat, 
and the staff of the Senate for the many kindnesses they have extended 
to me in the last 4 months during my injury and my recovery. I am on 
the way back home, in large measure, because of the support of the 
Members of the United States Senate. I am very grateful for that and 
the staff who have allowed that to take place. I say thank you very 
much.
  Notwithstanding what your politics are or what your partisanship is 
or anything else, this is a great institution and a great body because 
it is made up of great people.
  To that end, my friend Senator Coons from Delaware made an excellent 
speech, which I am going to adopt as my speech, since I don't have the 
strength to stand as long as I would like to, to talk about an issue so 
important. We do need to open all our minds and our hearts in the days 
ahead to make sure we know what direction we are going as Members of 
the Senate, regardless of our party and notwithstanding our 
partisanship.
  Neil Gorsuch, from everything I have seen--and I probably have seen 
more than anybody because I have been watching it on TV while I have 
been recovering. You guys have had to do it in debate. I have seen the 
real thing.
  His record, his testimony, the way he presented himself, the way 
Senator Grassley and Senator Feinstein allowed that hearing to go 
forth, I know we have a good man as a nominee to be a Supreme Court 
Justice of the United States, but the issues and the divide on the 
cloture, on a simple majority, and the rule change of 2013, and what 
has happened in the past, now has us in a position where we slowly but 
surely are moving to be a body that is another House of 
Representatives, not the United States Senate.
  The majority rule is a great philosophy. The majority winning is 
always a great philosophy, but I used to have a teacher who taught me. 
She said: If four equals the majority, three equals zero, but you 
always need to listen to the other three because sometimes they may be 
right. I think that is a good lesson for us today, and that was a 
grammar school teacher.
  If there are seven voting members, four does equal the majority, but 
three doesn't equal zero because the rest still count.
  As we move forward in the days ahead and judge other issues, whether 
they be partisan issues in terms of regular debate and general 
legislation, whether it be issues over the confirmation of judges or 
Secretaries or whatever it may be, let's be thoughtful, so that, not as 
a criticism of the House, but as a compliment to our Founding Fathers, 
we don't become a second House and later a unicameral body, majority 
rule and mob rule, and eventually waive rules, where passions overrule 
common sense and all of a sudden you find yourself digging your way out 
of a hole that you have created, rather than building the dreams you 
have always wanted to do.
  I commend the leadership of both parties for exercising their 
political and partisan desires. I commend each Member for being here to 
take part in this debate today and being a part of it. That is what 
America is all about.
  Somewhere down the line, there is going to be something that is going 
to happen that is going to cause a resurrection of the debate that we 
have had today and another road to cross on which way we go in the 
future. The more we move away from a Senate that is a deliberative 
body, that is a dignified body, to a body that makes sure it knows 
where it is going before it moves forward, we won't be better off. If 
we move toward a body that is a rubberstamp of the House or a 
unicameral government of legislation, we will never be the United 
States of America our Founding Fathers intended us to be. That is what 
I believe, and that is what I think the end of this will be.
  To all our Members, I compliment them on everything they have had to 
say and have done.
  Judge Gorsuch, I am so proud to have someone like that who will 
hopefully serve on the bench of the U.S. Supreme Court with 
distinction.
  To all of us, our job is not finished. I look forward to being here 
and being a part of it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I thank the Senator for yielding to 
me. I wish to say how nice it is to see the Senator from Georgia back 
here with us. It means a lot to all of us to have Senator Isakson back 
on the Senate floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I don't wish to turn this into a bouquet-
tossing process, but I think it is very clear that Senators on both 
sides of the aisle are very, very pleased to see our friend

[[Page S2395]]

from Georgia back today. We are wishing him health and Godspeed. We 
look forward to his full and complete recovery. We are so glad to have 
him here.
  I am also pleased that Senator Coons is on the floor, because I think 
it would be fair to say that Members on both sides of the aisle who 
have watched how Senator Coons has conducted himself throughout this 
extraordinarily contentious debate would say that Senator Coons makes 
all of us very, very proud.
  It is no secret that he has tried repeatedly to bring both sides 
together, and he and I have talked often about this. I think there are 
going to be opportunities for finding common ground on important 
legislation, breaking out of this gridlock that we all understand is 
not what the Senate is all about and forging toward more mainstream 
topics. When we get there, to a great extent, it will be because of the 
thoughtful comments of my friend from Delaware.
  Mr. President, the Senate is going to act on one of its most sacred 
and important constitutional duties, the advice and consent on the 
nomination of the next Associate Justice of the Supreme Court.
  The long tails of these Supreme Court debates stretch through 
generations and shape our government deep into the future. The choice 
the Senate makes in this extraordinary debate will have a profound 
impact, from the broadest governing statutes down to the most specific 
particulars of the law that affect our daily lives.
  There are several issues that are particularly relevant to this 
nominee that have gotten short shrift. I am talking about secret law, 
and warrantless wiretapping, death with dignity. I intend to discuss 
these issues shortly.
  I would like to begin, however, by stating that whether one supports 
or opposes Judge Gorsuch, our job would have been easier had the judge 
been more forthcoming in his testimony before the Judiciary Committee. 
He chose, however, not to do so. So what the Senate has to go by 
instead is the judge's lengthy record of adhering to a rigid and far-
right philosophy that is packaged in the branding of so-called 
originalism.
  The originalist says that our rights as a people are contained within 
and linked to our founding documents. But that viewpoint is plainly 
incorrect. In practice, originalism becomes a cover for protecting the 
fortunate over the poor, corporations over individuals, and the 
powerful over virtually every other American. It is a political agenda 
that masquerades as philosophy, an agenda whose sole intent is 
reserving power for those in power and limiting the recognition of the 
rights reserved to the people.
  Far from endorsing such a creed, our Constitution is actually a 
document of constraints, constraints that bind the government, not the 
people. The full scope of our fundamental rights as a people, as 
Justice M. Harlan once wrote, ``cannot be found in or limited by the 
precise terms of the specific guarantees elsewhere provided in the 
Constitution.'' The exact concept is written into the Bill of Rights 
itself. The Ninth Amendment says: ``The enumeration in the 
Constitution, of certain rights, shall not be construed to deny or 
disparage others retained by the people.''
  James Madison, the founder so significant that Americans are said to 
live in a ``Madisonian Democracy,'' was outspoken about the dangers of 
future readers or interpreters thinking that the fundamental rights 
contemplated by the Framers were limited to the Constitution or Bill of 
Rights.
  So our founding document and its Framers made clear that rights were 
not enumerated by the Constitution; they were retained by the people. 
Individual liberties, from personal privacy to a woman's right to vote, 
the choice of contraception and abortion, interracial marriage, same-
sex marriage, equal protection of the law--these liberties and, let me 
emphasize, many, many, many more have always existed. In fact, 
the Constitution and the Bill of Rights were silent on much of what 
Americans consider fundamental to a free people. That silence left the 
door open for the courts, as we shed the prejudices of a darker age, to 
recognize the true meaning of the words ``all men are created equal'' 
and ``inalienable rights.''

  The process has been painfully slow. The Constitution, like any 
document composed by politicians, is fraught with original sin. For 
example, the three-fifths compromise was a shameful device of political 
accommodation. Through long stretches of our history, political agendas 
have left many individual rights unrecognized or unprotected by the 
courts. They ruled in favor of the powerful and against the 
disadvantaged and the disenfranchised, often with the justification 
that their rulings adhered to the text of the Constitution.
  Nowhere did the Constitution expressly deny women the right to vote, 
but the Supreme Court ruled against Virginia Minor in 1875. The Federal 
Government was not expressly granted a right to intern residents of 
Japanese descent, but the Supreme Court allowed it in Korematsu. There 
was no constitutional basis on which to deny people of different 
ethnicities the right to marry. On those issues and more, our judges 
were wrong. Supreme Court Justices were wrong. In the service of the 
economic, political, and religious powers that be, the Court has 
defended slaveholders, denied the franchise, permitted racial, sexual, 
and other discrimination, and routinely--routinely--elevated the power 
of the State over individual liberties. Any defense of those rulings as 
adhering to the text of the Constitution is just plain wrong.
  Let's look more closely at women's voting rights. In Minor v. 
Happersett, the Supreme Court found that women did not have the right 
to vote because that right was not expressly stated anywhere in the 
Constitution. In a unanimous decision, the Court took the absurd 
position that a document predicated on voting, organized by voting, and 
dependent on voting for any amendment, still did not protect the right 
to vote for all citizens. Such is the intellectual bankruptcy of a long 
legal tradition sustained by its defense of the status quo.
  The 19th Amendment was a response to the abridgement of a fundamental 
right by political parties and their dependent courts, but it did not 
create a new right. It was a long overdue fix made necessary by an 
originalist court.
  If there is a national evolution that extends protection of rights 
and liberties to disenfranchised and oppressed people, it is because 
with time, our wonderful country tends to correct its wrongs. It did so 
with a Civil War and the amendments that followed. It did so with 
women's suffrage and the Brown decision. It did so more recently with 
the Obergefell v. Hodges decision. Historically, our country has 
gradually recognized fundamental rights and liberties.
  ``Recognition''--I use that word intentionally. It is recognition 
because there are no new rights, per se. They are inalienable, and 
those rights are not limited to those spelled out in the Constitution. 
A jurist governed by that principle would respect individual rights, 
but that simply isn't the viewpoint taken by many so-called 
originalists on the far right today.
  The rightwing originalism looks, in my view, a lot more like the 
judicial philosophy that trampled on the rights of Americans in days 
past--a philosophy that throughout our history has left many Americans 
marginalized, disenfranchised, and oppressed by the State.
  Unfortunately, after listening very carefully to Judge Gorsuch 
present his views and after reviewing his writings, including some I 
will mention that specifically talk about my home State, I have no 
faith that Judge Gorsuch would be any different from this philosophy 
that I mentioned that has left so many Americans marginalized in our 
country.
  Judge Gorsuch not only has a long record of conservative activism in 
the courtroom, but he has demonstrated an out-and-out hostility toward 
the right of individuals to make decisions about their own lives and 
their own families without interference from the State. In one 
troubling instance, he went so far as to author a book attacking death 
with dignity. This of course has been a matter that historically has 
been left to the States, and the people of my State twice approved 
death-with-dignity ballot measures and our death-with-dignity laws have 
been in place for nearly 20 years. The Supreme Court upheld it more 
than a decade ago in a case known as Gonzalez v. Oregon. But

[[Page S2396]]

Judge Gorsuch's record and his own words put the will of millions of 
Oregonians in question.
  Nothing in the Constitution gives the Federal Government the power to 
deny suffering Oregonians the right to make basic choices about the end 
of their lives. There is nothing in the Constitution that gives the 
Federal Government a power to deny people in my State the right to make 
those emotional, difficult, wrenching decisions about end of life. It 
is a private matter between individuals and doctors, and when 
politicians attempt to force regulations through the back door by going 
after doctors and their ability to prescribe, in my view that is an 
obvious over-the-line Federal infringement. But my guess is there are 
probably going to be some folks on the far right that are going to try 
that route again.
  Nothing Judge Gorsuch said in his confirmation hearing gave me any 
indication that he respects the death-with-dignity issue as settled law 
or that he would rule against Federal abuse of power to intrude on a 
private choice. The bottom line is that Judge Gorsuch is locked into an 
extreme rightwing viewpoint on this issue.
  And there is more. As I have listened to this debate and, 
particularly, the number of comments that some of those who have 
espoused the views that concern me so much come back to, part of this 
is that they are always talking about States' rights. States' rights--
that will be the altar that we really build our views and philosophies 
around. I will state, however, that when we listen to some of what they 
are having to say about States' rights, what they are really saying is 
that they are for the State if they think the State is right. That is 
not, in my view, what fundamental rights--particularly, ones that have 
been afforded to States--ought to be all about.
  As I indicated, I think his views with respect to death with dignity 
really do involve a Federal abuse of power in its intruding on private 
choices, but there are other issues that concern me as well.
  He has made it clear, in many instances, that he favors corporations 
at the expense of the working people. He has sided with insurance 
companies to deny disability benefits to people with disabilities, with 
large companies to deny employees basic job protections, and has even 
written that class action lawsuits are just tools for plaintiffs to get 
``free rides to fast riches.''
  No example better illustrates this tendency--and my colleagues have 
talked about it--than the case of the truckdriver in TransAm Trucking 
v. Department of Labor. In this case that leaves one practically 
speechless, Judge Gorsuch sided against a truckdriver who was fired for 
leaving his freezing cold truck when his life was in danger.
  I have another significant concern about Judge Gorsuch that came up 
in the context of his confirmation hearings. It is something that, I 
think, a lot of Americans and even those in government are trying to 
get their arms around. I have been on the Intelligence Committee since 
the days before 9/11, and one of the things we have come to feel 
strongly about is the danger of what I call ``secret law.'' I want to 
make sure people know exactly what I am talking about when I describe 
``secret law.''
  In the intelligence world and in the national security sphere, 
operations and methods--the tactics used by our courageous men and 
women who are protecting us and who go into harm's way to protect our 
people--always have to be secret. They are classified. They have to be 
because, if they were to get out, we could have Americans die--the 
people who do all of that wonderful work and, possibly, millions more. 
Sources and methods have to be secret, but the law and our public 
policies ought to always be transparent.
  The American people need to know about them because that is how we 
make informed decisions in our wonderful system of government. Voters 
are given enough information to make the choices. Sources and methods 
and operations have to be secret, but the law and political 
philosophies have to be public.
  Judge Gorsuch, as a senior attorney in the Department of Justice, was 
a practitioner of secret law. As I indicated, the public is not going 
to know about secret operations; we protect them. But trust in 
government and in our legal system cannot survive when Americans 
understand that the law says one thing and then the government or a 
secret court says that it means another. Secret law prevents the people 
from knowing whether their fundamental rights are being infringed by an 
unaccountable, unconstrained government that is aided by compliant 
courts.
  Secret law also keeps the Congress in the dark. Congress's job is to 
represent the people and oversee the government. Congress, barring 
rebellion, is the only recourse of a free people against an executive-
judicial alliance of secrecy that infringes their liberties. It is my 
view that secret law makes a mockery of the oath that Members of 
Congress, Justices, and each Senator here has taken to serve, protect, 
and defend our Constitution. Secret law is fundamentally corrosive to 
the rule of law in America.
  As we learned during his confirmation hearings, Judge Gorsuch was a 
supporter of secret law. In 2005, the CIA was conducting a secret 
torture program. In May of that year, the Department of Justice's 
Office of Legal Counsel determined, secretly, that torture techniques, 
such as waterboarding, were legal. Somehow, it deemed them consistent 
with statutory prohibitions on torture and the Constitution. This was 
extraordinary, willful, faulty legal analysis. It was entirely 
inconsistent with how the Congress and the public would read the law or 
the Constitution.
  Then our distinguished colleague from Arizona, Senator McCain, who 
knows a little bit about these issues in his having been subjected to 
them in the defense of our country, passed the Detainee Treatment Act. 
Senator McCain understood, in having fought for our country--given 
fully of himself--that our government had to find a way out of this 
problem. The McCain law prohibits the cruel and inhumane or degrading 
treatment that has been at issue here.
  By any measure, both the law--the language of the law, the clear 
intent of the Congress--and the context in which it was passed would 
leave every American to understand that a decision had been made by 
their elected officials to limit the power of government. Yet Judge 
Gorsuch, then an employee of the Bush administration's, had a solution.
  In December of 2005, he wrote to the author of the Justice 
Department's opinion, Mr. Bradbury, about a Presidential signing 
statement that would magically transform the McCain law into an 
endorsement of torture. What Judge Gorsuch wrote was that the McCain 
amendment that prohibited cruel, inhumane, and degrading treatment was 
best read as, essentially, codifying existing interrogation policies. 
In other words, according to Judge Gorsuch, John McCain's law--the one 
that passed 90 to 9 in the U.S. Senate--endorsed torture when it did 
just the opposite.
  The issue came up in his nomination hearing. Judge Gorsuch's 
explanation was that he was making the recommendation as a lawyer who 
was helping his client, which was the administration. I have to say, if 
there is one thing we have learned, this ``just following orders'' 
defense has gone on for far too long in this city. It is a small and 
feeble excuse and is unbecoming of a judge who has been nominated to 
the highest Court in the land. A judge who justifies government 
violations in the law and the Constitution just so his boss can say ``I 
was following the advice of counsel'' is making a choice to do wrong.
  The McCain amendment--what we passed here in the Congress--did not 
green-light torture. It did not codify torture, period. Anybody who has 
ever heard John McCain talk about this issue and describe his personal, 
horrifying experiences with torture knows that it, certainly, could not 
have been his intent when writing the bill.
  Any lawyer, especially one secretly advising the government, first 
has an obligation to the law and the Constitution. Judge Gorsuch's 
failure to recognize that principle and his choice to do wrong, in my 
view, disqualifies him from having a seat on the U.S. Supreme Court.
  Torture is not the only illegal program on which Judge Gorsuch has 
left his fingerprints. After news broke of the illegal, warrantless 
wiretapping program, Judge Gorsuch helped prepare

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testimony for the Attorney General, which asserted that these 
authorities are vested in the President and are inherent in the office.
  It added: ``They cannot be diminished or legislated away by other co-
equal branches of the government.''
  If that were the case, then no action taken in this area by the 
elected representatives of the people would have any weight. The 
Foreign Intelligence Surveillance Act, which has existed since the 
1970s, would just be some kind of advisory statement. Section 702 of 
the Foreign Intelligence Surveillance Act, which we are going to debate 
this year, would be little more than wasted paper. Then the USA FREEDOM 
Act, which ended the bulk collection of law-abiding Americans' phone 
records, might as well have never been signed into law.
  Voting for those bills and voting to confirm Judge Gorsuch call into 
question any Member's commitment to those laws that we passed.
  In response to a question during his nomination hearing, Judge 
Gorsuch said that he did not believe the Attorney General's testimony 
and that, again, he was only acting as a scribe, as a speechwriter. As 
such, he absolved himself of responsibility for his actions. Again, I 
think that it is just wrong to use this as an excuse. Like the 
endorsement of torture, assertions of Presidential authority to 
override congressional limits on warrantless surveillance rip at the 
fabric of the rule of law. Judge Gorsuch, a man who chose to get up and 
go to work every day for individuals who were violating the law, had 
the power to say no, but he would not make that choice.
  Colleagues, the Senate is voting to confirm an individual to a 
lifetime position on the Supreme Court. What Judge Gorsuch has stood 
for and against over the course of his legal career is all we have to 
go on in this debate, and we will have to reflect on it. A history of 
support, in my view, for secret, illegal, and unconstitutional programs 
is an unacceptable record for someone who is seeking a place on the 
Supreme Court.
  I have reminded this Senate of how, time and again, the Supreme Court 
has rubber-stamped the excesses of our executive and legislature over 
the years rather than defended individual liberty. That is the record--
the Supreme Court rubbing-stamping the excesses of the executive and 
legislature rather than protecting the individual liberties of the 
American people.
  It is my view that it is our job as Senators to ensure that the 
Supreme Court does not repeat the errors of yesterday--enshrining 
disenfranchisement and discrimination and denying equal protection of 
the law based on prejudice and political agendas. I believe that the 
only way to prevent this abuse is to appoint judges who recognize that 
the judiciary is a bulwark against any attempt to infringe on our 
unalienable rights.
  The bottom line for me, colleagues, is whether Judge Gorsuch 
recognizes that rights are reserved for the people.
  There is no respect for individual rights and liberty to be found in 
a viewpoint that allows for secret law to justify torture, that favors 
the powerful over the powerless, or that tramples on the rights of 
Americans to determine the courses of their own lives. Unfortunately, 
we have learned over the last few weeks that this is Judge Gorsuch's 
record.
  I oppose his nomination. I urge my colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Montana.
  Mr. DAINES. Mr. President, one of the most consequential votes that I 
will ever cast is a vote to confirm a U.S. Supreme Court nominee. It is 
a lifetime appointment to our Nation's highest Court. In fact, 
tomorrow, when I cast that vote for Judge Gorsuch, it will be the first 
chance I have had as a Senator to confirm a Supreme Court nominee.
  As it stands today, the U.S. Senate is on the precipice of confirming 
Neil Gorsuch to be our next U.S. Supreme Court Associate Justice. Just 
a few short hours ago, my colleagues on the other side caved to the 
pressures of the far left and unleashed an unprecedented, partisan 
filibuster for the first time in 238 years of this institution.
  I was honored to be at the White House's East Wing on January 31, 
with President Trump, when he made the announcement that Judge Neil 
Gorsuch would be the nominee to replace Antonin Scalia.
  Judge Gorsuch's academic accomplishments are nothing short of being 
absolutely stellar. His decision to serve as a Justice on the highest 
Court in the land is a true testament to his character, his 
intelligence, his understanding of the law, and his commitment to the 
Constitution.
  Judge Gorsuch was appointed by President George W. Bush to the Tenth 
Circuit in 2006 and was unanimously confirmed by the U.S. Senate. In 
fact, some of those Democrats who did not oppose Judge Gorsuch then 
included his Harvard Law classmate Barack Obama, Vice President Joe 
Biden, and Minority Leader Chuck Schumer.
  Of utmost importance in a Justice is the desire and the ability to 
apply the law as it is intended, not to legislate from the bench. So I 
can say that I was very thrilled to here Judge Gorsuch say this: ``A 
judge who likes every outcome he reaches is very likely a bad judge, 
stretching for results he prefers rather than those the law demands.''
  On February 9, I met Judge Gorsuch in my office. Let me tell my 
colleagues, he is impressive. We discussed the Constitution. We 
discussed the Second Amendment. I represent the State of Montana. I can 
tell my colleagues that as we look at our Constitution and our Bill of 
Rights, the Second Amendment is very important to the people of 
Montana. He will defend the Second Amendment. We also talked about the 
separation of powers, the role of government and federalism, and the 
Fourth Amendment.
  Through 4 full days of hearings, Judge Gorsuch eloquently answered 
Judiciary Committee members' questions, and certainly, before the 
entire viewing audience of the American people, he showcased his 
brilliant legal mind.
  Prior to his hearing, he met with 80 Senators. He provided the 
Judiciary Committee with 70 pages of written answers regarding his 
personal record and over 75,000 pages of documents, including speeches, 
case briefs, opinions, and written works going as far back as his 
college days. The White House archives produced over 180 pages of email 
and paper records related to Judge Gorsuch's time at the Department of 
Justice.
  During the committee hearing, Judge Gorsuch sat for three rounds of 
questioning totaling nearly 20 hours. In fact, when Judge Gorsuch 
appeared before the Judiciary Committee of the U.S. Senate, it was the 
longest hearing of any nominee in this century. He answered nearly 
1,200 questions during that hearing. By the way, that is nearly twice 
as many questions as Justices Sotomayor, Kagan, or Ginsburg.
  Today's vote was nothing more than a campaign fundraising effort for 
Senate Democrats. In fact, the Democratic Members who have pledged to 
support him already have threats from liberals of voting them out of 
office. It is a sad day that this body has become so partisan that, for 
the first time in this body's history, we had a partisan filibuster to 
a more than qualified nominee.
  Judge John Kane, a judge appointed by Democrat Jimmy Carter, said in 
an op-ed for an online legal website:

       As the saying goes, we could do worse. I'm not sure we 
     could expect better, or that better presently exists.

  There is just no arguing that Judge Gorsuch a mainstream nominee.
  Take the remarks of Obama's Solicitor General, Neal Katyal:

       Judge Gorsuch is one of the most thoughtful and brilliant 
     judges to have served our nation over the last century. As a 
     judge, he has always put aside his personal views to serve 
     the rule of law. To boot, as those of us who have worked with 
     him can attest, he is a wonderfully decent and humane person. 
     I strongly support his nomination to the Supreme Court.

  I remind my colleagues that those are the words of President Obama's 
Solicitor General.
  A nominee of this caliber who has undergone, as I just mentioned, 
rigorous vetting deserves the respect of the Members of this Chamber. 
Yet Senate Democrats walked down the road that their former leader did 
in 2013 by changing the precedent of this body and allowing the U.S. 
Senate to become even more partisan.
  The American people want Judge Gorsuch. The polls show that. In fact,

[[Page S2398]]

they demanded nine Justices on the Court. Today, we are one step closer 
to confirming him.
  Judge Gorsuch is the right replacement to honor the legacy of Justice 
Antonin Scalia. He has widespread support across the State of Montana, 
including our agriculture groups, the NRA, and leaders from across our 
State. Four Indian Tribes in Montana have endorsed Judge Gorsuch.
  The American people deserve a Supreme Court Justice who will uphold 
the rule of law and follow the Constitution. The American people 
deserve a Supreme Court Justice who doesn't legislate from the bench. 
The American people deserve Judge Gorsuch to serve them on the U.S. 
Supreme Court.
  As the American people watched Judge Gorsuch before the Judiciary 
Committee, they saw an exceptionally qualified nominee for the highest 
Court in the land. They saw someone who is bright--Columbia 
undergraduate, Harvard Law School, Oxford Ph.D. I would submit that 
Judge Gorsuch's intellectual capacities are only exceeded by the size 
of his heart. This is a kind man. This is a brilliant man. This is an 
independent jurist.
  I very much look forward to casting my vote tomorrow to confirm Judge 
Gorsuch.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, today we are one step closer to a vote to 
confirm Judge Gorsuch to the Supreme Court. I look forward to the vote 
tomorrow. We will be confirming a Justice to the Supreme Court who is 
supremely qualified, who is a mainstream judge, who respects the rule 
of law and the Constitution, and who will rule impartially from the 
bench--someone who will call balls and strikes. That is what I believe 
the American people look for when they look for a Supreme Court 
Justice.
  While it was always clear that some Democrats would oppose any 
Supreme Court candidate the President nominated, I had hoped that 
partisanship would be at least somewhat limited. I had hoped the 
Democrats would want to preserve the Senate's nearly 230-year tradition 
in confirming Supreme Court Justices by a simple-majority vote. And I 
had hoped that more than a handful of Democrats would join us to 
confirm one of the most, as I said, supremely qualified judges in my 
memory. That is not what happened. Despite Judge Gorsuch's 
qualifications, despite the support for his nomination from both 
liberals and conservatives, the vast majority of Senate Democrats were 
determined to block this confirmation.

  Of course, it wasn't really ever about Judge Gorsuch. It is not that 
Democrats were determined to block his confirmation; it is that they 
were determined to block any confirmation.
  Democrats tried to offer reasons to oppose Judge Gorsuch, but they 
struggled to come up with anything plausible. The Senate minority 
leader actually came to the floor and tried to argue that he was 
worried that Judge Gorsuch would not be ``a mainstream justice.''
  Over the course of 2,700 cases on the Tenth Circuit, Judge Gorsuch 
has been in the majority 99 percent of the time--99 percent. In 97 
percent of those 2,700 cases, the opinions were unanimous. So I would 
love to hear an explanation for how exactly a judge who has been in the 
majority 99 percent of the time is out of the judicial mainstream. Was 
the minority leader attempting to argue that all of the judges on the 
Tenth Circuit, including those appointed by Democratic Presidents, are 
out of the mainstream?
  The fact is that Democratic opposition to Judge Gorsuch had nothing 
to do with his qualifications. I doubt that any of my colleagues on the 
other side of the aisle really think that Judge Gorsuch is out of the 
mainstream or that he lacks the qualifications of a Supreme Court 
Justice, but they opposed him anyway.
  If they opposed a judge with a distinguished resume and a reputation 
as a brilliant jurist; if they opposed a judge who is known for his 
fairness and impartiality; if they opposed a judge whose nomination has 
been repeatedly supported by liberals, as well as conservatives; if 
they opposed a judge who unanimously received the highest possible 
rating from the American Bar Association--a rating, I might add, that 
the minority leader once called the ``gold standard'' for judicial 
nominees; if they opposed a judge a number of them supported 10 years 
ago, then it is abundantly clear that their opposition wasn't about 
this judge but about any judge this President nominates. Thus, 
Republicans were left with no real alternative but to act to preserve 
the Senate's tradition of giving Supreme Court nominees an up-or-down 
vote. This wasn't my preference. I preferred to leave room for a 
minority to block a judge who is truly not fit for office. But it was 
the only alternative we were left with if we wanted to confirm anyone 
to the Supreme Court.
  Historically, confirming judges was not a partisan process. During 
the George W. Bush administration, however, Democrats decided they were 
going to change that. They were mad back then too--mad that a 
Republican President was in charge. Apparently, modern-day Democrats 
are not reconciled to the fact that in our system of government, it is 
not always the Democrats who win.
  Anyway, the Democrats were mad, and they decided that the 
historically bipartisan process of confirming judicial nominees was 
going to change. Their 2003 filibuster of Miguel Estrada, who had been 
nominated to a seat on the Court of Appeals for the DC Circuit, was the 
first time a judicial nominee who enjoyed clear majority support was 
not confirmed because of a filibuster.
  Democrats ultimately successfully filibustered no fewer than 10 Bush 
nominees to appellate courts. That was a massive reversal in Senate 
history. Suddenly the normally smooth process of confirming a 
President's judicial nominee had been turned into an exercise in 
partisanship.
  Ten years later, Democrats struck again when they employed the 
nuclear option to ensure that they could pack the DC Circuit--despite 
the fact that at the time, when the current minority leader announced 
that Democrats would ``fill up the D.C. Circuit one way or the other,'' 
Republicans had blocked just two of President Obama's circuit nominees 
and had confirmed 99 percent of his judges. So 215 were confirmed out 
of 217 under President Obama up to that point.
  And now here we are today. Democrats are again mad that they lost an 
election, that they can't control the nomination process, and they once 
again turned to ``no-holds-barred'' partisanship. They made it clear 
that no Republican nominee would ever make it to the Supreme Court; 
thus, we had to act to ensure that Supreme Court nominees can receive 
an up-or-down vote going forward.
  In the Senate's nearly 230 years, the filibuster has been used to 
block a Supreme Court nominee exactly once--one time. Supreme Court 
Justice Abe Fortas's nomination to be Chief Justice of the Supreme 
Court was blocked by a bipartisan coalition, in part over ethical 
concerns. That is how strong the Senate's bipartisan tradition of an 
up-or-down vote on Supreme Court nominees has been--230 years, one 
time, and it was bipartisan. I am deeply sorry that the Democrats were 
determined to end that tradition.
  Judge Gorsuch should never have faced the threat of a filibuster. 
There was no reason--no reason other than the most flagrant partisan 
politics--to block this supremely qualified nominee from the Supreme 
Court.
  As I said, I look forward to tomorrow and to this final vote where we 
will have an opportunity to confirm to the Supreme Court this well-
qualified, mainstream nominee who fundamentally respects the rule of 
law and the Constitution of the United States and will act impartially 
as a Justice for the American people.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SHELBY. 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. SHELBY. Mr. President, I wish to address the Senate for a few 
minutes about the nomination of Judge Neil Gorsuch, which is the topic 
of the day and has been the topic for weeks. It probably has been said, 
but I am going to go through some of it again.
  Judge Gorsuch is a native of Denver, CO, where he currently resides 
with his

[[Page S2399]]

wife Louise and their two daughters. He is currently 49 years old.
  I want to talk about some of his credentials. Judge Gorsuch received 
his bachelor of arts degree from Columbia University in 1988, his juris 
doctor from Harvard Law School in 1991, and a doctorate in legal 
philosophy from Oxford University in the UK in 2004.
  At Columbia, he was a member of Phi Beta Kappa, a Truman scholar at 
Harvard Law School, and a Marshall scholar at Oxford.
  Following law school, Judge Gorsuch served as a law clerk to Federal 
appellate judge David Sentelle and then to Justice Byron White of the 
U.S. Supreme Court and Associate Justice Anthony M. Kennedy of the 
Supreme Court.
  In 1995, Judge Gorsuch entered private practice as an associate of 
Kellogg, Huber, Hansen, Todd, Evans & Figel, and he was elected partner 
in that law firm in 1998. His practice focused on general litigation in 
both trial and appellate matters.
  Judge Gorsuch left private practice in 2005 to serve as the Principal 
Deputy to the Associate Attorney General at the Justice Department in 
Washington.
  President George W. Bush nominated Judge Gorsuch to the Tenth Circuit 
Court of Appeals, located in Denver, on May 10, 2006. He was confirmed 
in the Senate by a voice vote on July 20, 2006.
  We talk about qualifications for judges. I want to share some of his. 
Judge Gorsuch has served over a decade on the U.S. Court of Appeals for 
the Tenth Circuit. He has an outstanding judicial record that speaks 
for itself. He has participated in over 2,700 appeals on the Tenth 
Circuit, and 97 percent of them have been unanimously decided. In those 
cases, he was in the majority 99 percent of the time.
  Of the approximately 800 opinions he authored on the Tenth Circuit, 
98 percent of his opinions were unanimous, even on a circuit where 7 
out of the 12 active judges were appointed by Democratic Presidents. 
His opinions on the Tenth Circuit have the lowest rate of dissenting 
judges at 1.5 percent. That is unheard of. Out of the eight cases he 
has decided that were reviewed by the U.S. Supreme Court, seven were 
affirmed and one was vacated.
  Judge Gorsuch's nomination to the Tenth Circuit Court of Appeals in 
2006 was met without opposition, and he was confirmed by voice vote.
  Notably, Senators serving during this time include a lot of my former 
colleagues: then-Senator Barack Obama, Senator Joe Biden, Senator 
Hillary Clinton, Senator John Kerry, Senator Harry Reid, and 12 other 
current sitting Democratic Senators in this body, including the 
minority leader, Chuck Schumer.
  In March, the American Bar Association, ABA, unanimously gave Judge 
Gorsuch a ``well qualified'' rating, their highest possible mark. 
Minority Leader Schumer and Senator Leahy have both previously referred 
to the ABA as the ``gold standard by which judicial candidates are 
judged.''
  In the area of jurisprudence, Judge Gorsuch has a mainstream judicial 
philosophy, which he clearly articulated during the Senate Judiciary's 
confirmation hearing.
  I believe his record is unequivocal in that he believes judicial 
decisions should be based on the law and the Constitution and not 
personal policy preferences. He has a deep commitment to the 
Constitution and its protections established by our Founding Fathers, 
including the separation of powers, federalism, and the Bill of Rights. 
Judge Gorsuch's decisions demonstrate that he consistently applies the 
law as it is written, fairly and equally to all individuals.
  Additional information about Judge Gorsuch: The American people 
deserve to have their voices heard in selecting Justice Scalia's 
replacement. This is what we are doing.
  Some of my colleagues intend to oppose Judge Gorsuch based solely on 
the fact that they disagree with the outcome of the Presidential 
election.
  During President Trump's campaign last year, he clearly defined the 
type of Justice he wished to nominate to the current vacancy. He even 
published, as you will recall, a list of 21 judges who possessed what 
he believed are the necessary qualifications to serve on the U.S. 
Supreme Court.
  Following Judge Gorsuch's nomination, he sat for over 20 hours of 
questioning in front of the Senate Judiciary Committee in the Senate--
the longest hearing of any 21st-century nominee. Additionally, he was 
given 299 questions for the record by my colleagues on the other side 
of the aisle. This also is the most in recent Supreme Court 
confirmation history.
  Simply put, I believe this is the most open and transparent process 
in choosing a Supreme Court nominee ever conducted by an 
administration. By filibustering this nomination, some of my colleagues 
are breaking a nearly 230-year tradition of approving Supreme Court 
nominees by a simple-majority vote.
  I believe the American people spoke clearly when they elected 
President Trump. I believe this is the American people's seat, and I 
believe Judge Gorsuch is an exceptional choice for the Supreme Court. 
He deserves an up-or-down vote, and that is why I believe we are 
getting ready in the next few hours to confirm him.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. BLUMENTHAL. 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. BLUMENTHAL. Mr. President, as we finished the vote just hours 
ago, I could not help but notice a number of my colleagues on the other 
side of the aisle high-fiving each other. That image stays with me as I 
stand here now. It saddens me. There is no cause for celebration in 
what happened in the Senate just hours ago. No one should sleep well 
tonight. No one should underestimate the magnitude of what happened 
here. Damage was done to our democracy, in fact, to the institutions 
that are the pillars of our democracy--the United States Supreme Court 
and the Senate itself.
  Today is, indeed, one of my saddest days in the Senate. Sadder than 
anything is the damage that has been caused to the Supreme Court by 
eroding and undermining trust and respect for an institution that has 
power only because of its credibility with the American people. It has 
no armies or police force; all it really has is the confidence and 
respect of the American people.
  Today, raw political power has been exercised to break the rules and 
norms of this body so that a nominee could be confirmed. The only way 
that he could be confirmed was, in fact, to wreck the rules, a nuclear 
option that will have enduring fallout and rippling repercussions, 
perhaps for years come.
  For myself, I would state unequivocally that I hope we will work 
together on issues where we have common ground, where we can reach 
common solutions on infrastructure, on tax reform, on immigration 
issues.
  No one should make light of the potential fallout, as there is in any 
nuclear explosion, from this action today.
  The Senate has broken with decades of bipartisan practice when it 
comes to the U.S. Supreme Court. The practice and the tradition was 
that Presidents of either party would consult with Members of both 
parties in this body before making a nomination so as to ensure a 
mainstream nominee, and that nominee would be in the mainstream even 
before his or her selection so that there was some modicum of comity 
and so that respect for this body, as well as the courts, would be 
preserved.
  My concern is that the contagion of partisanship will infect the 
court system as a whole. All of the nominations to lower courts, as 
well as the appellate courts, will be affected.
  My hope is that we can avoid that truly cataclysmic outcome, a 
nuclear explosion, in some ways even more deafening and damaging than 
the one used today would be because our courts are the bulwark of our 
democracy. An attack on our courts is an attack on the only check we 
have against tyranny and autocratic erosion of those rights. That is 
why the nonpartisanship of our courts is so important.
  The Supreme Court, of all our courts, should be above politics. In 
fact, that is why the 60-vote rule for the Supreme Court was so 
important. The Supreme Court is different: nine Justices appointed for 
life to the highest Court in

[[Page S2400]]

the land. In some ways, it is an anachronism in our democracy--
unaccountable, unelected, sitting for life with the power to strike 
down actions of elected representatives and an elected Executive by 
issuing words on paper without the direct means to enforce them, 
depending only on respect and credibility from the American people. To 
approve nominees by a razor-thin majority is a disservice to the Court 
and to our democracy.
  Supreme Court Justices do more than just follow the law; they have to 
resolve conflicts in the law and differences among the lower courts 
where they disagreed and, in fact, ambiguities in the statute, where 
there is lack of clarity, where this body is unable to reach consensus 
and, in effect, decides to agree, to the extent it can, and leave some 
question to administrative agencies, which rightly are entitled to 
respect, as they implement the law.
  Confidence and trust are essential, and we have undermined it today. 
Our Republican colleagues have gravely damaged it by the actions taken 
today.
  I have urged my colleagues to reject Neil Gorsuch because I believe 
he is out of the mainstream, because he failed to answer questions 
about whether he agreed with established core precedents essential to 
rights of privacy and equality under the law, because he has a judicial 
philosophy that would involve substituting judgments of courts for 
administrative agencies and banning the Chevron doctrine, and because 
he favored in many of his actions, opinions, writings the interests of 
corporations over individual rights.
  We have debated the merits of this nominee. I believe that his 
repeated evasion of the questions that were put to him leaves us with 
the inescapable conclusion that he passed the Trump test; that he is 
not a neutral caller of balls and strikes; that he is, in fact, an 
acolyte of the of the rightwing groups that screened and suggested his 
name; and that he would carry out not only the Trump litmus test to 
overrule Roe v. Wade, strike down gun violence provisions, but also 
other unknown decisions that would implement that far-right 
conservative agenda. We can debate whether that view is right or wrong.
  Today is one of my saddest days in the Senate. It goes more to the 
institutions that have been demeaned and degraded: the U.S. Senate and 
the Supreme Court. My hope is that maybe it will be a turning point. 
Maybe we can reconstruct the sense of bipartisanship and comity that 
existed for so many years. Many of my colleagues on the other side have 
expressed to me their misgivings about what was done today.
  The obstruction of Merrick Garland's nomination was, as one of my 
colleagues put it, ``the filibuster of all filibusters.'' It was 
another step in a continuing progression, culminating in today's 
outcome that very much betrays the spirit and values of a bipartisan 
selection of Supreme Court nominees because the highest Court in the 
land is different.
  I had the extraordinary honor to clerk for a Justice on the U.S. 
Supreme Court, Harry Blackmun, who was appointed by a Republican, 
President Richard Nixon. He grew as a Justice and surprised a lot of 
people. He, no doubt, surprised the President who appointed him. And 
that is what happens to really extraordinary men and women who serve on 
our courts as well as in the U.S. Senate; they grow in the job.

  Choosing a U.S. Supreme Court Justice is one of the most solemn and 
important duties that a President has, and confirming her or him is one 
of the most important tasks we have in this body.
  Even at the most difficult and contentious times, as I served then as 
a law clerk and as I have litigated since then for several decades, I 
have never doubted that judges were working in good faith to uphold the 
rule of law. Whether they ruled my way or not, I believed that we were 
working to try to be above partisan politics and uphold the rule of law 
and do the right thing to follow the law.
  The Supreme Court does more than follow; it leads. Today's vote is a 
significant challenge to that principle and perhaps the most difficult 
that we have seen in recent history. It threatens to exact profound 
damage on the confidence and trust the American people have in the 
Supreme Court and perhaps in the courts overall, and that is a danger 
for all of us.
  In my view, when the history of this time is written, there will be 
two heroes: the free press that has uncovered abuses and wrongdoing 
despite opposition from many powerful forces, and our independent 
judiciary that has upheld their right to do it and, also, the rights of 
countless Americans in many areas of law.
  Today's action threatens those two institutions in our society. It 
undermines our rules. It would not have happened without a choice made 
by the Republican leadership that they were willing to break the rules 
to achieve this result.
  I am determined to try to move forward in a positive way, in 
legislation as well as in protecting and enhancing our courts, giving 
them the resources they need to do their job--and law enforcement, the 
resources needed to uphold the rule of law.
  We cannot hold the Supreme Court hostage to any ideology, and that is 
a lesson from today and from the past year that we should all heed.
  Mr. President, I will continue to talk about this topic because I 
believe it is so profoundly important to our Nation, but for now, I 
yield the floor.
  The PRESIDING OFFICER (Mr. Cassidy). The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, when they write the history of our times, 
I am sure that when it comes to Senate history, this is going to be a 
chapter, a monumental event in the history of the Senate not for the 
better but for the worse. After we are all long dead and gone, somebody 
may be looking back and trying to figure out what happened or what 
motivated people.
  I am going to tell you what has motivated me since I have been in the 
Senate: an understanding that the job of a Senator, when it comes to 
advice and consent, is not to replace my judgment for that of the 
President, not to nullify the election, but to be a check and balance 
to make sure that the President of either party nominated someone who 
is qualified for the job and is capable from a character point of view 
of being a judge for all of us, having the intellect, background, 
judgment, experience to carry out the duties of a Supreme Court 
Justice.
  When President Obama won the White House, I suspected that he would 
pick judges who I would not have chosen, based on our different 
philosophies of liberal-conservative jurisprudence.
  This is what Greg Craig, the former White House Counsel in the Obama 
administration, said about Elena Kagan, who is now on the Court: 
``Kagan is . . . a progressive in the mold of Obama himself.''
  This is what Vice President Biden's Chief of Staff Ronald Klain said 
about Elena Kagan: ``Elena Kagan is clearly a legal progressive . . . 
[and] comes from the progressive side of the spectrum.''
  I think that was an accurate description of her and Sonia Sotomayor, 
who both are progressive Justices who come from the progressive side of 
the judicial spectrum. Both are highly qualified, capable women who had 
stellar legal records. Even though they had outcomes I did not agree 
with, they were certainly in the mainstream. Both had been judges. I 
think he chose people I would not have chosen, but they were really 
highly qualified.
  I was the only member of the Judiciary Committee on the Republican 
side to vote for either Justice Kagan or Justice Sotomayor because I 
used a standard that I thought was constitutionally sound. I am not 
telling any other Senator what they should do. I am just trying to 
explain what I did. In the Federalist Papers, No. 76, written April 1, 
1788, Mr. Hamilton said:

       To what purpose then require the co-operation of the 
     Senate? It would be an excellent check upon a spirit of 
     favoritism in the President. It would portend greatly to 
     prevent the appointment of unfit characters from state 
     prejudice, from family connection, from personal attachment, 
     and from a view to popularity.

  So, from Hamilton's point of view, it was a check and balance against 
a crony or unqualified person, someone who was popular but not 
qualified for the job, somebody who was supported because they were 
close to the President and not qualified for the job, someone who was 
appointed because they were a favorite son of a particular State. That 
would not be fair to everybody else. When you look at the history of 
the advice and consent clause,

[[Page S2401]]

it is pretty clear that the Founding Fathers did not have in their 
minds that one party would nullify the election when the President of 
another party was chosen by the people when it came to Supreme Court 
confirmations because they chose somebody they did not agree with 
philosophically.
  I voted for Elena Kagan and Sonia Sotomayor, knowing they come from 
the progressive judicial pool. Neil Gorsuch is one of the finest 
conservatives that any Republican President could have chosen, and he 
is every bit as qualified as they were. His record is incredible--10\1/
2\ years on the bench, 2,700 cases, and 1 reversal. He received the 
highest rating of the American Bar Association, ``well qualified,'' 
just like Sonia Sotomayor and Elena Kagan.
  To merit the committee's rating of ``well qualified,'' a Supreme 
Court nominee must be a preeminent member of the legal profession, have 
outstanding legal ability and exceptional breadth of experience, meet 
the very high standards of integrity, professional competence, and 
judicial temperament. The rating of ``well qualified'' is reserved for 
those found to merit the committee's strongest affirmative endorsement. 
By unanimous vote on March 9, the standing committee awarded Judge 
Gorsuch this highest rating of ``well qualified,'' just like they did 
for Sonia Sotomayor and Elena Kagan. He has 2,700 court decisions, 1 
reversal, and praise from all areas of the law--left, right and middle. 
The ABA report of 900 cases describes a very thoughtful man, an 
incredible judge, and a good person. So I don't think anybody could 
come to the floor and say--even though they may disagree with the 
outcome--that Judge Gorsuch is not qualified, using any reasonable 
standard, to be chosen by President Trump. He is every bit as qualified 
as the two Obama appointments. So, clearly, qualifications no longer 
matter like they used to.
  Antonin Scalia--whom Judge Gorsuch, hopefully, will soon replace as 
Justice Gorsuch--was confirmed by the Senate 98 to 0. Ruth Bader 
Ginsburg was confirmed 96 to 3. I would argue that you could not find 
two more polar opposite people when it comes to philosophy than Justice 
Ginsburg and Justice Scalia. They became very dear friends, but nobody 
in their right mind would say there is not a difference in their 
judicial philosophy.
  Strom Thurmond, my predecessor, a very conservative man himself, 
voted for Ms. Ginsburg. Clearly a conservative would not have chosen 
her because she was general counsel of the ACLU. I can tell you that 
Ted Kennedy and other people on the progressive side of the aisle would 
not have voted for Antonin Scalia based on philosophy. Something has 
happened in America from 1986 to 1993. The Constitution hasn't changed. 
Something has changed. I think the politics of the moment have taken 
the Founding Fathers' concept and turned it upside down. From the time 
that Scalia was put on the Court and Ginsburg was put on the Court, 
everything has changed.
  I was here when the first effort to filibuster judicial nominations 
was made in earnest. In the first term of Bush 43, there was a 
wholesale filibuster on the circuit court nominees of President Bush. I 
was part of the Gang of 14 that broke the filibuster. We lost a couple 
nominees but we did move forward. We said there would be no further 
filibuster of judges unless there were extraordinary circumstance. That 
allowed Alito and Roberts to go forward. Both of them got a good vote. 
On Alito we had to get cloture, but we got 78 votes.
  Clarence Thomas was probably the most controversial pick in my 
lifetime. If you can remember that hearing, it was front page news 
every day and on TV every night. Not one Democratic Senator chose to 
filibuster him. He got an up-or-down vote and he passed 52 to 48. They 
could have chosen to require cloture, but they didn't.
  So this is the first time in the history of the Senate that you have 
a successful partisan filibuster of a Supreme Court nominee. Abe Fortas 
was filibustered to be Chief Justice of the Supreme Court by almost an 
equal number of Democrats and Republicans because of ethical problems, 
and he eventually resigned.
  So we are making history today--the first successful filibuster in 
the history of the Senate to deny an up-or-down vote on a nominee to 
the Supreme Court. It breaks my heart that we are here. I don't know 
what to do other than to change the rules to have some sense of 
fairness. I can't believe that Judge Gorsuch is not qualified by any 
reasonable standard. I voted for Sotomayor and Kagan. Nobody even asked 
for a cloture vote. They went straight to the floor. One got 62 votes 
or 63 votes, and the other got 68 votes. I don't know why we can't do 
for Judge Gorsuch what was done for Sotomayor and Kagan.
  We keep hearing about Judge Garland. Judge Garland is a fine man and 
would have been a very good Supreme Court Justice. Justice Scalia died 
in February of 2016 after three primaries were already held. The 
nominating process was well on its way for picking the next President. 
So this was an election year. I remember what Joe Biden said in 1992, 
the last year of Bush 41's term, when there was the suggestion that 
somebody might retire in the election year, and he said, basically: If 
someone steps down, I would highly recommend that the President not 
name someone, not send a name up. If he, Bush, did send someone up, I 
would ask to seriously consider not having a hearing on that nominee. 
It would be our pragmatic conclusion that once the political season is 
underway, and it is, action on a Supreme Court nomination must be put 
off until after the election campaign is over. That is what Vice 
President Biden said when he was chairman of the Senate Judiciary 
Committee in 1992.
  That made sense. President Trump put a list of names out that he 
would choose from if he became President, which was historic. Part of 
the contest in 2016 was about the Supreme Court. I have no problem at 
all saying that, once the campaign season is afoot, we will let the 
next President pick. That is no slam on Judge Garland. I have zero 
doubt that if the shoe had been on a different foot, there would not 
have been a different outcome. I can't imagine Harry Reid being in 
charge of the Senate in 2008 and allowing President Bush, in the last 
year, to nominate somebody in the Court and that they would approve 
that decision once the campaign season had started in 2008. I say that 
knowing that it was Senator Reid who chose to change the rules in 2013, 
which broke the agreement of the Gang of 14 in part.

  Here is what Harry Reid said in 2005:

       The duties in the U.S. Senate are set forth in the 
     Constitution of the United States. Nowhere in the document 
     does it say the Senate has a duty to give the Presidential 
     nominee a vote.

  All I can say is that in the 100-year history of the Senate, from 
today going backward, there has been one person put on the Court when 
the President was of one party and the Senate was held by the other 
party and a vacancy occurred in the last year of a Presidential term.
  We have done nothing that would justify Judge Gorsuch to be treated 
the way he has been treated, and he has been treated pretty badly. Here 
is what Nancy Pelosi said: ``If you breathe air, drink water, take 
medicine, or in any other way interact with the courts, this is a very 
bad decision.''
  All I can say is that Judge Gorsuch does not deserve that. That is a 
political statement out of sync with the reality of who this man is and 
the life he led, and it is that kind of attitude that has gotten us to 
where we are today.
  I can also say that there is blame on my side too. Nobody has clean 
hands completely on this. When Justice Sotomayor was nominated, she 
made a speech to the effect that a White man would have a hard time 
understanding what life is like for minorities. That was taken to 
believe that she somehow could not be fair to White men. That was a 
speech she gave that was provocative, but I never believed it was an 
indication that she somehow was prejudiced against White men. The 
reason I concluded that was because anybody who had known her, 
including White men, said she was a wonderful lady.
  I remember Elena Kagan. The attack on our side was that she joined 
with the administration of Harvard to kick the ROTC unit off campus. 
Somehow that made her unpatriotic. My view was that it was the position 
of a very liberal school called Harvard, and no one could ever convince 
me that Elena Kagan was unpatriotic. She seemed to be a very nice, 
highly qualified lady,

[[Page S2402]]

and that decision by Harvard could not be taken to the extreme of 
saying that she is not fit to serve on the Court. So I was able to look 
beyond the charges leveled at these two ladies on our side to 
understand who they really were. When you look at people who know these 
judges the best, they can tell you the most accurate information. In 
the case of Kagan and Sotomayor, there were a lot of people, left and 
right, who said they were well-qualified, fine ladies. When you look at 
what was said about Judge Gorsuch in the ABA report, it is just an 
incredible life, well lived.
  So here we are. We are about to change the rules. Up until 1948, it 
was a simple majority requirement for the Supreme Court. As a matter of 
fact, as for most Supreme Court nominations in the history of the 
country, a large percentage were done based on a voice vote. It is only 
in modern times that we got in this political contest over the Court. 
It probably started with Judge Bork.
  There is some blame to go around on both sides, but I can say that 
while I have been here, I have tried to be fair the best that I know 
how to be. I voted for everybody I thought was qualified. I said, as 
for Judge Garland, let the next President decide. At the time I said 
that in March 2016, I had no doubt in my mind that Donald Trump would 
lose and that Hillary Clinton would probably pick somebody more liberal 
than Garland. But it made sense to me in that stage of the process to 
let the next President pick.
  The fact that we are filibustering this man says a lot about the 
political moment. If this were a controversial character, I might 
understand it better. When you look back and try to figure out what we 
did and how we got here, I can say that we took one of the best people 
that President Trump could have nominated--somebody I would have chosen 
if I had gotten to be President. I think Paul Ryan, Mike Pence, or any 
of us would have chosen Neil Gorsuch, and he was denied an up-or-down 
vote. That says all we need to know about the political moment.
  We will change the rules. It will have an effect on the judiciary, 
and it won't be a good one, because in the future, judges will be 
selected by a single party, if you have a majority with no requirement 
to reach across the aisle, which means the judges will be more 
ideological.
  When you have to go over there to get a few votes or when they have 
to come over here to get a few votes, you have to water down some of 
your choices and the most extreme ideological picks or a party or 
President are probably not going to be able to make it through. Now 
they will. I think what you will see over time is that the most 
ideological people in the Senate are going to have a lot to say about 
who is chosen by the President. It will change the nature of the 
judiciary.
  To the Senate itself, every Senate seat now becomes a referendum on 
the Supreme Court. So when we have a contest for a Senate seat, it is 
not just about the Senate. It is about the seat affecting the outcome 
of the Court, because all you need is a simple majority. Whether or not 
it leads to changing the legislative filibuster, which would be the end 
of the Senate, I don't know, but I don't think it helps. There will be 
a majority around here one day, a President of the same party, with 
control of the House, and they will get frustrated because the other 
side will not let them do everything they want to do, and they will be 
tempted to go down this road of doing away with the 60-vote requirement 
to pass a bill--not appoint a judge--and that will be the end of the 
Senate. We have made that more likely by doing this. It was more likely 
in 2013. I hope I am wrong, but I think we have set in motion the 
eventual demise of the Senate. The one thing I can say--I am 
optimistic, though--is that while I will vote to change the rules for 
this judicial nomination, I will not ever vote to change the rules for 
legislation.

  The reason I am voting to change the rules is that I do not know what 
I would go home and tell people as to how Sotomayor and Kagan got on 
the Court and Gorsuch could not, why President Obama was able to pick 
two people who were highly qualified and why Trump was not able to pick 
one person who was highly qualified. You just can't have it where one 
side gets the judges and the other side does not. To rectify that 
wrong, I guess we had to change the rules.
  It is not a good day. I was hoping it would never come, but it has. 
To the extent that I have been part of the problem, I apologize to the 
future. I think, at least in my own mind, I have tried to do the right 
thing as I saw it. I took a lot of heat for voting for their judges at 
a time when there was a lot of heat on our side. I am glad I did.
  It is not that I am not partisan--certainly, I can be. I just think 
history is going down a very dark path, and the Senate is going down a 
very dark path. There will never be another 98 votes for a Scalia or 
another 96 votes for a Ginsburg. That is a shame because even though 
they may be different, they have one thing in common: They are good 
people who are highly qualified to sit on the Court. I can understand 
why a liberal President would choose one and a conservative President 
would choose another. Yet what we are doing today is basically saying 
that in the Senate, we do not really care about election results 
anymore.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. KENNEDY. Mr. President, Senator Graham, my fellow Senators, our 
constituents in the Gallery, a lot of what has gone on today may seem 
very complicated. We have heard a lot of terms being thrown around: 
cloture, the nuclear option. Yet, really, the question that we were 
faced with today in the Senate was very simple, and it continues to be 
pretty simple and straightforward, in my judgment: Should we have an 
up-or-down vote on the nomination of Judge Neil Gorsuch to be an 
Associate Justice of the U.S. Supreme Court?
  Earlier today, the Senate voted to do that. I think it is very 
important for the American judicial system and for the American system 
of democracy that the U.S. Senate be allowed to vote on Judge Gorsuch's 
nomination to the U.S. Supreme Court. It was not enough to only vote on 
a motion to end debate; we also needed to be allowed to vote on the 
actual nomination with ``yes'' or ``no.''
  Unfortunately, our friends on the Democratic side of the aisle 
decided to filibuster in order to make it impossible for us to vote on 
this crucial nominee without modifying the rules of the U.S. Senate. 
That is what we did earlier today. I do not know that anybody did it 
happily, but certainly a majority of the Senate believed that the 
American people deserved an up-or-down vote, yea or nay. Stand up and 
be counted in front of God and country. Do you want Judge Neil Gorsuch 
to be on the Supreme Court, or do you not? That vote is going to take 
place tomorrow afternoon.
  The Constitution reads that the President of the United States of 
America ``shall nominate and by and with the advice and consent of the 
Senate shall appoint . . . judges of the Supreme Court.'' I do not need 
to tell you that this is an extremely important part of our separation 
of powers. It is vital to our protecting the integrity of the Supreme 
Court, the work that all of us do--not just members of the Judiciary 
Committee but every Member of the Senate--in vetting our nominees and 
making sure they are qualified and independent, as is Neil Gorsuch. He 
is enormously important for the protection of liberty itself.
  Let's not ever forget what we are protecting. We are protecting 
justice, and we are protecting liberty. We are not supposed to be 
protecting a certain point of view. We are not supposed to be 
protecting a certain policy preference. We are not supposed to be 
protecting a certain political party.
  I hope tomorrow, when we finally get the opportunity to vote up or 
down on Neil Gorsuch for his membership on the greatest tribunal in the 
history of civilization, in my judgment, the U.S. Supreme Court, that 
we will consider his nomination in light of how it will affect our 
country, not our party. When we look at his nomination from that 
perspective and leave the politics of the last few years in the 
rearview mirror, I think we can analyze his nomination with a lot more 
clarity.
  Alexander Hamilton, whom I think most Americans admire, said in 
Federalist No. 78 that the Court has ``neither force nor will but 
merely judgment.'' I think that is what we are all looking for--or 
should be--in a nominee to any court but especially to the

[[Page S2403]]

U.S. Supreme Court. We are not looking for somebody with a certain 
policy preference. We are not looking for people with ideas of how the 
law can be improved because the role of a judge is not to make law, it 
is to interpret the law as made by the legislative body as best that 
judge can understand it. That is why we need someone like Neil Gorsuch, 
in my estimation, who has good judgment.
  I sit on the Judiciary Committee. I have spent 20 to 40 hours with 
Neil Gorsuch or with people who know him well, in hearing their 
testimony. I have read his opinions. As far as I am concerned, he is as 
good as it gets. I cannot imagine that President Trump could have 
picked better.
  He is a thoroughbred. He is a legal rock star. If you read his 
opinions, you will see that he is painstaking in his application of the 
law to the facts before him. He writes beautifully. His communication 
skills are absolutely amazing. His analysis and analytical rigor are 
clear and concise. His decisions are wise and disciplined, and he is 
faithful to the law. He is an intellectual, not an ideologue. He is a 
judge, not a politician. He is whip-smart, has clear writing, is a 
strict constitutionalist, likes snow skiing, fly fishing, and is a 
fourth-generation Coloradan. I think he will serve every person in our 
country well as a member of the Supreme Court. That is why I am 
supporting him.
  Let me say one final thing. I do not think there is any vote that 
will be more important than the vote we will take tomorrow on a 
President's nomination to the U.S. Supreme Court, so I want to choose 
my words carefully. Not a single, solitary vote is more important than 
that vote we will take tomorrow. That is not to say that there are not 
other important issues before this body. That is why I think it was so 
important today that we decided to vote up or down on Judge Gorsuch so 
that we can move on to those other important issues--jobs, jobs, jobs; 
designing a healthcare delivery system that looks like somebody 
designed it on purpose, which our Acting President has worked so hard 
on; infrastructure; elementary and secondary education; a skilled 
workforce. I could go on.

  There is an enormous amount of pain in America today. There are too 
many Americans who are not participating in the great wealth of 
America--not economically, not socially, not culturally, and not 
spiritually. We have been elected in the Congress to do something about 
that.
  I talk to people in my State every day, and I know the Presiding 
Officer does too. The people of Louisiana are fun-loving, God-fearing, 
and plain-talking, and this is what they tell me: Kennedy, this country 
was founded by geniuses, but sometimes I think it is being run by 
idiots.
  They say: Kennedy, we look around our country today, and here is what 
we see. We see too many undeserving people at the top--I want to 
emphasize ``undeserving'' because I don't want to paint with too broad 
a brush--who are getting bailouts, and we see too many undeserving 
people at the bottom who are getting handouts. We are in the middle, 
and we get stuck with the bill. We cannot pay it anymore, Kennedy, 
because our health insurance has gone up, our kids' tuitions have gone 
up, and our taxes have gone up. I will tell you what has not gone up--
our income.
  These are real people with real problems, and they sent all of us 
here because they are real mad and they expect us to do something about 
it.
  The sad truth is that our children's generation is at risk of 
becoming the first in America, unless this body does something, to be 
worse off than their parents' generation because in our country today, 
for too many Americans, it is harder than ever to get ahead. That is 
why so many Americans feel stuck. They feel like the hope and change 
they were promised has become decline and uncertainty, and they are 
looking to us to do something about it.
  So let's vote. Let's vote tomorrow. I understand reasonable people 
disagree. I understand unreasonable people can disagree too. But I am 
going to vote for Neil Gorsuch to be an Associate Justice of the U.S. 
Supreme Court. Then I am going to ask this body to move on to other 
important issues that are keeping moms and dads awake at night when 
they lie down and try to go to sleep.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, when we lost the Honorable Justice Antonin 
Scalia, we were all saddened, as he was such a legend on the Court, and 
I am very proud that President Trump nominated a successor who is 
worthy of fulfilling his shoes.
  Judge Gorsuch has garnered respect and approval from people across 
the legal community, and he has unrivaled bipartisan support. It is 
unfortunate that the Democrats have tried to block his nomination. It 
is not going to work, but they have tried.
  Recently, I had the honor of meeting Judge Gorsuch. It is kind of 
interesting because I was not on his list to visit. In fact, I had even 
said: Don't waste your time on me, as I know your credentials and I am 
going to support you anyway, and I am not on the appropriate committees 
that would pass judgment. Yet he did call, and we met. I will tell you 
that you have to meet and talk to the guy in person to know what kind 
of an individual he really is.
  Of course, being from Oklahoma, I am sensitive to the fact that he is 
the son of the West. In fact, none of our Justices up there, with the 
exception of California, are from what we would call the Western United 
States--the area where people need to be properly represented.
  As a judge on the Tenth Circuit Court of Appeals, he has heard from 
Utah, Wyoming, Colorado, Kansas, New Mexico, and my State of Oklahoma. 
He knows the issues of the Western States and what we are facing, and 
he has expertise to deal with them. He has handled with a lot of care 
and fairness the issues that have come before him. Of course, we know 
this because Oklahoma is in the Tenth Circuit.
  His reputation is such that, regardless of party affiliation, 
countless groups, organizations, and individuals have come out in 
support of Judge Gorsuch, including Neal Katyal. Neal Katyal was the 
Acting Solicitor General in President Obama's Cabinet, so he was a 
Cabinet member of President Obama's. He testified before the Senate 
Judiciary Committee and wrote an op-ed piece in the New York Times. 
Keep in mind, when you listen to this--this is a quote from an op-ed 
piece in the New York Times, and one of the individuals from the 
administration of President Obama said this: ``His years on the bench 
reveal a commitment to judicial independence--a record that should give 
the American people confidence that he will not compromise principle to 
favor the President who appointed him.''

  That comes from an Obama appointee.
  Not only is he well liked, but he also has an impressive resume, 
serving as law clerk to two different Supreme Court Justices. He 
attended Columbia, Harvard, Oxford, and it doesn't get any better than 
that. It is clear he has the qualifications, and as recently as the 
last administration, that was really all you needed to be confirmed to 
be on the U.S. Supreme Court.
  What the Democrats have done to block his nomination has never been 
done before. This is significant. People don't realize--people who are 
maybe critical of some of the procedures that were taking place, they 
forget the fact that there has never been, in the history of America, a 
successful partisan filibuster of a Supreme Court nomination--there has 
never been. This will be the first time this happened.
  I support the majority leader in changing the rules in the face of 
this unprecedented action by a minority party. There is really no 
reason for their filibuster of this highly qualified individual, other 
than partisanship and catering to their liberal base. Changing the 
rules for Supreme Court nominations had to be done, and if the 
situation were reversed, the Democrats would have done the same thing 
in a heartbeat, as we saw in 2013 when they did the same thing.
  Judge Gorsuch deserves to be on the Supreme Court. He does not 
deserve to be blocked because people are upset that we observed the 
Biden rule; that is, not providing for any action on a nominee for a 
Supreme Court vacancy once the election season is underway--and they 
lost the election.
  Now, that is Joe Biden, not Jim Inhofe.

[[Page S2404]]

  In addition to his impeccable job and experience and educational 
background, he is perhaps best known for his defense of religious 
liberty, including a role in the dispute during the Obama 
administration that required employers to provide abortion-inducing 
drugs to their employees as part of their health insurance. One of 
these employers was Hobby Lobby.
  Everyone knows who Hobby Lobby is, but not everyone knew them back 
when I knew them. I knew them back in the 1970s, when the Green family, 
who started Hobby Lobby, were actually operating out of their garage, 
making picture frames, and look at them today. I have known them for a 
long time. They started out their whole business with a $600 loan. Now 
they have over 700 stores across the United States and are the largest 
privately owned arts and crafts store in the world.
  Judge Gorsuch and the Supreme Court agreed with Hobby Lobby and 
upheld their religious liberty rights. I am going to read to my 
colleagues his concurring opinion. It is very profound. Judge Gorsuch 
wrote, after they made the determination that Hobby Lobby did not have 
to give these drugs to their employees:

       It is not for secular courts to rewrite the religious 
     complaint of a faithful adherent, or to decide whether a 
     religious teaching about complicity imposes ``too much'' 
     moral disapproval on those only ``indirectly'' assisting 
     wrongful conduct. Whether an act of complicity is or isn't 
     ``too attenuated'' from the underlying wrong is sometimes 
     itself a matter of faith we must respect the faith.

  Now, that is what he wrote in Hobby Lobby.
  In a very similar situation around the same timeframe, there was a 
case that is known now to be the Little Sisters of the Poor. He joined 
in an opinion defending the rights of nuns not to be forced to pay for 
abortion-inducing drugs in their healthcare plans. This is another 
profound statement he made. He said: ``When a law demands that a person 
do something the person considers sinful, and the penalty for refusal 
is a large financial penalty, then the law imposes a substantial burden 
on that person's free exercise of religion.''
  It is not just petitioners of the Christian faith whom Judge Gorsuch 
has sided with. He upheld the religious beliefs of a Native American 
prisoner and of a Muslim prisoner who found their ability to practice 
their faith restricted in one manner or another.
  He comes to his decision not because he is seeking some predetermined 
outcome; he comes to his decisions because that is where the facts of 
the law and the Constitution lead him.
  For example, in the Lynch case--another Oklahoma case--Gorsuch 
referred to Chevron deference as ``a judge-made doctrine for the 
abdication of the judicial duty.''
  Chevron deference is the judicial rule that requires judges to defer 
to an agency's interpretation--we are talking about a bureaucracy--an 
agency's interpretation of the law if the law is considered ambiguous 
or unclear and if the agency's interpretation is reasonable. This 
defense to the agency gives them a lot of authority, a lot of power. 
Moreover, it can provide a lot of uncertainty to the regulated 
community.
  As Judge Gorsuch wrote, Chevron deference allows agencies to 
``reverse its current view 180 degrees any time based merely on the 
shift of political winds and still prevail [in court].''
  I know a little bit about this. I spent a lot of years being the 
chairman of a committee called the Environment and Public Works 
Committee. During the Obama years, we had a bureaucracy that was trying 
to change the law instead of following the law. It was exactly what 
Judge Gorsuch was talking about in this case when he talked about the 
Chevron deference, giving deference to a bureaucracy. You can imagine 
being in business, especially a heavily regulated one, that has to 
worry that every 4 to 8 years the rules might change then and how do 
you plan to make your plans.
  I think Gorsuch's opinion on Chevron deference is an important debate 
to have. Do we, as a coequal branch of government, continue to give up 
our powers to the administrative state or do we take our power back and 
write laws as they should be implemented? Furthermore, does the 
judicial branch, as a coequal branch of government, continue to give up 
their power of interpretation to the administrative state?
  These are important, fundamental questions that should be addressed, 
and I am glad the Gorsuch nomination has brought these cases to light.
  Although Judge Gorsuch was nominated by a Republican President, this 
doesn't mean my colleagues on the other side of the aisle should have 
any concern about Judge Gorsuch's decisionmaking ability. This is 
important to point out because being a judge is not about making 
decisions that are in the best interests of any political party but 
really about making decisions based on facts and the law and the 
Constitution without bias.
  During his confirmation, Judge Gorsuch stated his judicial 
philosophy, saying:

       I decide cases . . . I listen to the arguments made. I read 
     the briefs that are put to me. I listen to my colleagues 
     carefully and I listen to the lawyers in the well . . . 
     keeping an open mind through the entire process as best I 
     humanly can and I leave all the other stuff at home. And I 
     make a decision based on the facts and the law.

  Who can argue with that? He has proven over a period of time that he 
will do that.
  Through the whole debate, it has become evident that the Democrats 
were asking him to rule in favor of causes and not to follow the law, 
which is what a judge does and should do.
  Regarding the roles and balance of our government, Gorsuch is what a 
judge should be. He believes Congress should write the laws, the 
executive branch is to carry them out, and the judicial branch is to 
interpret the laws. The confirmation of Judge Gorsuch will shape our 
Nation for generations to come, and all of us will be able to benefit 
from his wise decisions.
  I am looking forward to confirming Judge Neil Gorsuch. It is going to 
happen tomorrow, and then all of this will be over. I am proud to give 
him my vote. Justice will be well served as such.
  With that, Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.