[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2405-S2417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Affordable Care Act

  Mr. NELSON. Mr. President, while we have a lull in the debate, I want 
to take an opportunity to talk about healthcare. Since we had an utter 
inability of the House of Representatives to come together on any kind 
of healthcare bill, this Senator would suggest that instead of the 
mantra ``repeal and replace,'' since now that seems to be dead, why 
don't we take the existing law that has provided a lot of things for 
the average citizen? For the average person in my State of Florida, it 
means a great deal to have the availability of health insurance, which 
they never had and can now afford.
  There need to be fixes to the law known as the Affordable Care Act 
that was passed several years ago. Indeed, one of those fixes could be 
a kind of ``smoothing fund,'' that as the insurance companies vie for 
this business on the State exchanges, they would be able to have this 
fund as a resource for them to get over some of the humps--also, 
certainly for some of the insureds.
  Just because you are at 400 percent of poverty and therefore no 
longer eligible for some of the subsidies to enable you to buy health 
insurance--and, by the way, for a single individual, that is only about 
$47,000 a year of income--the person who makes $47,000, $50,000 a year 
can't afford to go out and spend $8,000, $10,000, $11,000 on a health 
insurance policy.
  We need to adjust that--in other words, fix that as well. There needs 
to be an additional fix of a subsidy for the people who are just over 
400 percent of poverty. To translate that another way, for a family of 
four, that is only about $95,000 a year. On a tight budget like that, 
they simply can't afford health insurance. They need some help.
  With a few little fixes like that to the existing law--the Affordable 
Care Act--we could get this thing tuned up and, indeed, continue to 
provide what we need in order for people to have healthcare.
  One other fix: There are about 4 million people in the country who, 
if their State legislatures and their Governor would expand Medicaid--
and some of those Governors are now expressing interest in doing this--
under the Federal law up to 138 percent of poverty, 4 million more 
people would be covered with healthcare. In my State of Florida alone, 
there are 900,000 people who otherwise would be getting healthcare who 
do not because the government in the State of Florida has refused to 
expand Medicaid coverage up to 138 percent of poverty.
  How much is that? For a single individual, that is someone making 
about $16,000 a year. A person like that can't afford health insurance. 
A person like that can't afford any kind of paying for any healthcare.
  What happens to them? When they get sick, they wait and wait to try 
to cure themselves because they can't pay a doctor. When the sickness 
turns into an emergency, they end up in the emergency room and then, of 
course, it is uncompensated care and the hospital eats it. The 
hospital, of course, passes that uncompensated care on to all the rest 
of us who are paying our premiums on health insurance.
  It makes sense to do this. With a few fixes, we would be able to tune 
up the existing law to provide the healthcare that most of us want to 
provide. It seems to me that it is common sense, and it is common sense 
that can be done in a bipartisan way. It is my hope and my prayer that 
the Senate and the House will come together and ultimately do this.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, the Senate has decided on a purely partisan 
basis to resolve the impasse of Judge Gorsuch's nomination by invoking 
the so-called ``nuclear option.'' For the first time in our history, 
nominees to the Supreme Court of the United States may advance from 
nomination to confirmation with a simple majority vote in this body.
  I have heard many of my colleagues ascribe blame equally to both 
sides, and I have heard analysts and experts say the same. One can 
question that diagnosis, as some very respected scholars like Norm 
Ornstein of the American Enterprise Institute and Thomas Mann of the 
Brookings Institute have demonstrated that our political polarization 
over the last several years, and hence our current impasse, has been 
driven predominantly by the ever more conservative ideology of the 
Republican Party. Regardless, here we are.
  The Gorsuch nomination lacks the traditional level of support 
required for a Supreme Court seat, and the majority leader has chosen a 
step that Democrats clearly and emphatically rejected when we needed to 
confirm nominees with broad support but were blocked because they were 
submitted by President Obama.
  I had hoped it was not too late for cooler heads to prevail. 
Unfortunately, adherence to the principle of 60 votes for consideration 
of a Justice of the Supreme Court and indeed the existing rule in the 
Senate was ignored, and we are at this impasse.
  Since many have drawn a false equivalence between the last so-called 
``nuclear option'' vote of several years ago and what occurred today, 
let me take a moment to explain, for my part, why I very reluctantly 
supported a change to the Senate precedent for nominees other than the 
Supreme Court in 2013.
  During President Obama's tenure, Republicans necessitated more 
cloture votes than were taken under every previous President combined. 
Let me repeat that. During President Obama's tenure, Republicans 
necessitated more cloture votes than were taken under every previous 
President combined, from George Washington to George W. Bush. In 
numerical terms, Republicans demanded a cloture vote 79 times over just 
5 years. In contrast--from the Founding Fathers all the way through 
George W. Bush--the Senate only faced that situation 68 times. 
Republicans obstructed Obama nominees more in 5 years than the United 
States Senate obstructed all nominees combined over the course of more 
than two centuries.
  The bitter irony, of course, was that after a nominee would break 
through, Republicans often would vote overwhelmingly to confirm the 
very nominee they so adamantly delayed. It was clear their sole guiding 
principle was obstruction and delay.
  Judges nominated by President Obama faced some of the longest median 
and average wait times under the five most recent Presidents, and 
President Obama tied with President Clinton for the fewest number of 
circuit

[[Page S2406]]

court nominees confirmed during that same period. All that time, 
judicial vacancies stacked up. Justice was delayed and denied. Critical 
public service roles went unfilled, and the American public came to 
regard Congress as a place where nothing of substance can occur.
  It was under those dire and unprecedented circumstances that I 
reluctantly joined my colleagues to change the filibuster rules for 
executive nominations and judicial nominations, other than the Supreme 
Court--very consciously excluding the Supreme Court, which at that time 
was recognized as appropriate by all my Republican colleagues. But 
there really is no equivalence between that decision and what the 
majority did today.
  Even in 2013, at the height of Republicans' partisan attacks on 
President Obama, Senate Democrats believed the Supreme Court was too 
important to subject to a simple majority vote. The Supreme Court is a 
coordinate branch of our government, and its lifetime appointees have 
final authority to interpret the Constitution. We understood then--as 
we do now--that the traditional 60-vote threshold to conclude debate on 
the highest Court in our nation was too important to the consensus-
driven character of this body to sacrifice.
  I think we also have to acknowledge that a President already has 
nominated a consensus choice capable of earning 60 votes to a seat on 
the Court, and that nominee was Chief Judge Merrick Garland. The 
unprecedented treatment he received by the majority has already made 
this one of the most infamous and politicalized Supreme Court 
nominations in American history. It is all the more disconcerting that 
Judge Gorsuch witnessed Judge Garland be treated so poorly but now 
seems to feel entitled to his seat on the Court, even if the Senate 
must change its precedence to give it to him.
  I already addressed this body about my deep concerns regarding Judge 
Gorsuch's judicial record of ideological activism and championing the 
powerful over the powerless, but it is worth going into greater detail 
on one of his opinions that is emblematic of this, and that has 
recently come to the fore.
  In 2008, Judge Gorsuch heard what is referred to as the Luke P. Case. 
In that case, the parents of an autistic child sought reimbursement 
from a school district for the cost of specialized education because 
the school had not provided adequate accommodations for the child under 
the Individuals with Disabilities Education Act or IDEA. The case 
presented heart-wrenching facts that are too familiar for families 
affected by disabilities such as autism. The child, Luke, experienced 
severe behavioral issues in public and at home. His parents sought 
advice from the best sources available to create the most effective 
atmosphere for him to make progress in school. Ultimately, they 
recognized the public school Luke had attended could not provide the 
learning atmosphere required by the law for Luke. So they placed him in 
a different school setting.
  Luke's parents exercised their rights under IDEA. The Colorado 
Department of Education, the Colorado Office of Administrative Courts, 
and a Federal district court all agreed that the law entitled them to 
reimbursement from the school district that was not able to provide an 
adequate learning environment for Luke. This should have been the end 
of the matter, but when the school district appealed the case to the 
Tenth Circuit, Judge Gorsuch's decision reversed all these factfinders 
to hold in favor of the school district.
  In order to reach his conclusion, Judge Gorsuch went to great 
lengths--picking and choosing passages from previous decisions--to 
weave a new standard that essentially eviscerated the protections under 
IDEA. His strict interpretation of this landmark law utterly ignored 
congressional intent and created a new precedent that schools need only 
provide ``merely more than de minimis'' or, in plainer terms, just a 
little bit more than zero educational opportunity for children with 
disabilities. The immediate result of this decision was to force Luke 
back into an inadequate learning environment and leave his parents with 
yet another unexpected financial hardship. At the same time, Judge 
Gorsuch's new legal standard threatened to degrade the quality of 
education for children with disabilities all across the country.
  The good news for Luke's family--and for so many others--is that the 
Supreme Court of the United States intervened in a rare unanimous 
opinion, reversing Judge Gorsuch's position--ironically during his 
confirmation hearings. The Nation has been spared the potential harm 
that could have resulted from lowering expectations for schools 
nationwide and leaving families like Luke's without sufficient 
recourse.
  Yet as my colleagues and I have pointed out at every turn of this 
confirmation process, this is far from the only decision by Judge 
Gorsuch that is widely outside the mainstream of modern jurisprudence. 
He is not--and was never intended to be--a consensus nominee to fill 
the vacancy on the Supreme Court. It should not come as a surprise, 
therefore, that this body is divided over his nomination to the highest 
Court in the land, and Judge Gorsuch could not earn enough support 
under the 60-vote threshold.
  The filibuster was intended to be an institutional safeguard that 
protects the minority by requiring broad consensus for major decisions 
by this body. It should be equally apparent in this circumstance that 
the filibuster did its job. A large minority of this body viewed Judge 
Gorsuch as too extreme for the Supreme Court, and that minority blocked 
cloture on his nomination. There was no national emergency, no danger, 
no serious consequence whatsoever that prevented the majority from 
reversing course and working with Democrats and the President to find a 
consensus nominee. In one day, the majority has lessened the 
distinction between our Chamber and our colleagues across the Capitol, 
all the while lowering ourselves further in the eyes of the Nation and 
opening the door to an even more polarized judiciary.
  I regret that this is the case, and I hope this body can turn back 
from the course we find ourselves on today.
  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. GRASSLEY. 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. GRASSLEY. Mr. President, we are now well on our way to confirming 
Judge Gorsuch as the next Justice of the Supreme Court. I have a few 
things to say about the way we have gotten here.
  Earlier today, the other side--meaning the Democrats--made a very 
unprecedented break with Senate history and with Senate tradition. They 
launched the first partisan filibuster of a Supreme Court nominee in 
our Nation's history. For our part, we Republicans insisted that we 
follow the practice of the Senate. We don't engage in partisan 
filibusters of Supreme Court nominees.
  Yesterday, I came to the floor to speak about the path that brought 
us to this point. As I discussed, way back in 2001, the current 
minority leader and some of his allies on the far left hatched a plan 
to, in their words, ``change the ground rules'' with regard to lower 
court nominees. I noted a New York Times article describing the 
Democratic senatorial caucus retreat, where the new approach to 
nominees was discussed; in other words, where they discussed the 
strategy for changing the ground rules of how judges are considered by 
the United States Senate.
  Mr. President, I ask unanimous consent to have printed in the Record 
the May 1, 2001, New York Times article entitled ``Washington talk; 
Democrats Readying for Judicial Fight,'' and the April 5, 2017, story 
from the Washington Examiner entitled ``The Gorsuch Plagiarism Story is 
Bogus.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the New York Times, May 1, 2001]

         Washington Talk; Democrats Readying for Judicial Fight

                           (By Neil A. Lewis)

       President Bush has yet to make his first nominee to a 
     federal court and no one knows whether anyone will retire 
     from the Supreme Court this summer, an event that would lead 
     to a high-stakes confirmation battle.

[[Page S2407]]

       Nonetheless, the Senate's Democrats and Republicans are 
     already engaged in close-quarters combat over how to deal 
     with the eventual nominees from the Bush White House. 
     Democrats in particular are trying to show some muscle as 
     they insist that they will not simply stand aside and confirm 
     any nominees they deem right-wing ideologues.
       ``What we're trying to do is set the stage and make sure 
     that both the White House and the Senate Republicans know 
     that we expect to have significant input in the process,'' 
     Senator Charles E. Schumer, New York's senior Democrat, said 
     in an interview. ``We're simply not going to roll over.''
       Forty-two of the Senate's 50 Democrats attended a private 
     retreat this weekend in Farmington, Pa., where a principal 
     topic was forging a unified party strategy to combat the 
     White House on judicial nominees.
       The senators listened to a panel composed of Prof. Laurence 
     H. Tribe of Harvard Law School, Prof. Cass M. Sunstein of the 
     University of Chicago Law School and Marcia R. Greenberger, 
     the co-director of the National Women's Law Center, on the 
     need to scrutinize judicial nominees more closely than ever. 
     The panelists argued, said some people who were present, that 
     the nation's courts were at a historic juncture because, they 
     said, a band of conservative lawyers around Mr. Bush was 
     planning to pack the courts with staunch conservatives.
       ``They said it was important for the Senate to change the 
     ground rules and there was no obligation to confirm someone 
     just because they are scholarly or erudite,'' a person who 
     attended said.
       Senator Tom Daschle of South Dakota, the Democratic leader, 
     then exhorted his colleagues behind closed doors on Saturday 
     morning to refrain from providing snap endorsements of any 
     Bush nominee. One senior Democratic Senate staff aide who 
     spoke on the condition of anonymity said that was because 
     some people still remembered with annoyance the fact that two 
     Democratic senators offered early words of praise for the 
     nomination of Senator John Ashcroft to be attorney general.
       Senators Robert G. Torricelli of New Jersey and Joseph R. 
     Biden Jr. of Delaware initially praised the Ashcroft 
     selection, impeding the early campaign against the 
     nomination. Both eventually acceded to pressure and voted 
     against the nomination.
       The current partisan battle is over a parliamentary custom 
     that Republicans are considering changing, which governs 
     whether a senator may block or delay a nominee from his home 
     state. Democrats and Republicans on the Judiciary Committee 
     have not resolved their dispute over the ``blue-slip policy'' 
     that allows senators to block a nominee by filing a blue slip 
     with the committee.
       On Friday, Senator Patrick J. Leahy of Vermont, the ranking 
     Democrat on the Judiciary Committee, and Mr. Schumer sent a 
     letter to the White House signed by all committee Democrats 
     insisting on a greater role in selecting judges, especially 
     given that the Senate is divided 50-50 and that the 
     Republicans are the majority only because Vice President Dick 
     Cheney is able to break any tie.
       Senator Trent Lott of Mississippi, the Republican leader, 
     told reporters today that he believed ``some consideration 
     will be given to Democratic input, but I don't think they 
     should expect to name judges from their state.''
       Mr. Lott said he expected that Democrats might slow the 
     process but, in the end, would not block any significant 
     number of nominees.
       Behind all the small-bore politics is the sweeping issue of 
     the direction of the federal courts, especially the 13 
     circuit courts that increasingly have the final word on some 
     of the most contentious social issues. How the federal bench 
     is shaped in the next four or eight years, scholars say, 
     could have a profound effect on issues like affirmative 
     action, abortion rights and the lengths to which the 
     government may go in aiding parochial schools.
       Mr. Bush is expected to announce his first batch of 
     judicial nominees in the next several days, and it is likely 
     to include several staunch conservatives as well as some 
     women and members of minorities, administration officials 
     have said. Among those Mr. Bush may put forward to important 
     federal appeals court positions are such conservatives as 
     Jeffrey S. Sutton, Peter D. Keisler, Representative 
     Christopher Cox of California and Miguel Estrada.
       The first group of nominees, which may number more than two 
     dozen, is part of an effort to fill the 94 vacancies on the 
     federal bench while the Republicans still control the Senate.
       But it remains unclear if there will be a Supreme Court 
     vacancy at the end of the court's term in July. Speculation 
     on possible retirements has focused on Chief Justice William 
     H. Rehnquist and Justices Sandra Day O'Connor and John Paul 
     Stevens. But in recent days, associates of Justice O'Connor 
     have signaled that she wants it known that she will not 
     retire after this term.
                                  ____


              [From the Washington Examiner, Apr. 5, 2017]

                 That Gorsuch Plagiarism Story Is Bogus

                          (By T. Becket Adams)

       Supreme Court nominee Neil Gorsuch is not a plagiarist, 
     according to the woman from whom he has been accused of 
     lifting materials.
       ``I have reviewed both passages and do not see an issue 
     here; even though the language is similar. These passages are 
     factual, not analytical in nature, ``Abigail Lawlis Kuzma, 
     who serves as chief counsel to the Consumer Protection 
     Division of the Indiana Attorney General's office, said in a 
     statement made available to the Washington Examiner.
       Her remarks came soon after two reports alleged Tuesday 
     evening that President Trump's Supreme Court nominee had 
     ``copied' passages in his 2006 book, ``The Future of Assisted 
     Suicide and Euthanasia.'' The reports alleged he also lifted 
     material for an academic article published in 2000.
       The charge, which involves Gorsuch repeating medical terms 
     and not original concepts or ideas, is weak, at best.
       ``[The similar] passage are factual, not analytical in 
     nature, framing both the technical legal and medical 
     circumstances of the `Baby/Infant Doe' case that occurred in 
     1982,'' Kuzma explained. ``Given that these passages both 
     describe the basic facts of the case, it would have been 
     awkward and difficult for Judge Gorsuch to have used 
     different language.''
       BuzzFeed was first to report on the similarities between 
     Gorsuch and Kuzma. It published a story Tuesday headlined, 
     ``A Short Section in Neil Gorsuch's 2006 Book Appears To Be 
     Copied From A Law Review Article.
       Politico followed suit publishing a story titled, 
     ``Gorsuch's writings borrow from other authors.''
       Other newsrooms, including the Huffington Post, Business 
     Insider and New York magazine, moved quickly to repeat the 
     charges against Gorsuch.
       Politico bolstered its charge with quotes from multiple 
     academic experts, including Syracuse University's Rebecca 
     Moore Howard, who, interestingly enough, is quite open about 
     supporting former President Barack Obama.
       However, several professors who worked closely with Gorsuch 
     during the period in which he produced much of the work in 
     question said the hints and allegations against the judge are 
     nonsense.
       ``[I]n my opinion, none of the allegations has any 
     substance or justification,'' Oxford University's John Finnis 
     said in a statement made available to the Examiner. ``In all 
     four cases, Neil Gorsuch's writing and citing was easily and 
     well within the proper and accepted standards of scholarly 
     research and writing in the field of study in which he was 
     working.''
       Georgetown University's John Keown, who reviewed Gorsuch's 
     dissertation, said elsewhere in a statement: ``The allegation 
     is entirely without foundation. The book is meticulous in its 
     citation of primary sources. The allegation that the book is 
     guilty of plagiarism because it does not cite secondary 
     sources which draw on those same primary sources is, frankly, 
     absurd.
       Indeed, the book's reliance on primary rather than 
     secondary sources is one of its many strengths.''
       Further, actual attorneys disagree that Gorsuch plagiarized 
     anything.
       ``People unfamiliar with legal writing, or even writing, 
     may be unfamiliar with how citations work,'' Attorney Thomas 
     Crown explained Wednesday.'' When I cite to a case or 
     statute, if I am quoting verbatim, I give a direct quotation, 
     with apostrophes and everything, and then the source. If I am 
     summarizing, sometimes even using the same words, I follow 
     with the direct citation. The Bluebook, which is the legal 
     style Bible, is for law reviews and some appellate and trial 
     courts, and has more specific rules.
       ``I mention this because this is standard across numerous 
     fields, not just law, and only illiterates . . . are 
     shocked,'' he added. ``Different field with different 
     standards and forms; but even most academics believe that a 
     good synopsis with citation isn't plagiarism.''
       In conclusion, he wrote, ``I don't want to ruin a perfectly 
     good five-minute hate, but this isn't even close to 
     plagiarism.''

  Mr. GRASSLEY. After a brief time in the majority, Senate Democrats 
were back in the minority in 2003--so approximately 2 years after they 
had this strategy. It was at that time the Senate Democrats began an 
unprecedented and systemic filibuster of President George W. Bush's 
circuit court nominees.
  Then the tables turned. President Obama was elected, and Republicans 
held the Senate minority. At that time, even though many of us did not 
like the idea of using the filibuster on judicial nominees, we also 
recognized that we could not have two sets of rules--one for Republican 
Presidents and one for Democratic Presidents.
  Our party defeated two nominees for the lower courts by filibuster 
and denied cloture to three of President Obama's nominees to the DC 
Circuit Court of Appeals. But the other side did not appreciate being 
subject to the rules that they first established and started using in 
2003 to filibuster judges. So at that point, in 2013, they decided to 
change the rules of the Senate.
  By the way, they changed the rules by breaking the rules. I say that 
because the rules of the Senate say it takes a two-thirds vote to 
change the

[[Page S2408]]

rules of the Senate, but they changed it by a majority vote. Now at 
that time, as we all know, Majority Leader Reid changed the rules for 
all Cabinet nominations and lower court nominees. To say that my 
colleagues and I were disappointed is a gross understatement.
  The majority claimed that they left intact the filibuster for Supreme 
Court nominees. But my view back in 2013, when they did that, was that 
the distinction Majority Leader Reid drew between lower court nominees 
and Supreme Court nominees was not a meaningful one. My view, in 2013, 
was that Majority Leader Reid had effectively eliminated the filibuster 
for both lower court nominees and the Supreme Court.
  Here is the reason. There are two circumstances where this issue 
might conceivably arise: either you have a Democrat in the White House 
and a Democrat-controlled Senate or you have a Republican in the White 
House and a Republican-led Senate.
  In the first, there was a Democrat in the White House and the party 
led by Leader Reid and Leader-in-Waiting Schumer was in the majority. 
If for some extraordinary reason Senate Republicans chose to filibuster 
the nominee, there is no question that a Majority Leader Reid or a 
Majority Leader Schumer would change the rules.
  Now, I do not believe that this particular circumstance would ever 
arise, because our side does not believe in filibustering Supreme Court 
nominees. I have never voted to filibuster a Supreme Court nominee, not 
once. I think I have a pretty good sense of the rest of our caucus. Our 
side just does not believe in it. It is not much more complicated than 
that simple commonsense statement I just made.
  Of course, even if for some extraordinary reason our side did choose 
to filibuster a Supreme Court nominee, we do not have to speculate as 
to whether the other side would have changed the precedent with respect 
to the Supreme Court. Last year, when everyone thought that Secretary 
Clinton was going to win the election, their own Vice-Presidential 
candidate said that they would change the rules if they needed to if we 
had a Republican filibuster.
  Then, of course, the other circumstance where this issue would arise 
is what we have seen this very day--a Republican in the White House and 
a Republican-controlled Senate. We saw this very day that the minority 
was willing to take that last step and engage in the first partisan 
filibuster in U.S. history.
  As I have repeatedly discussed, because they were willing to do it 
with a nominee as well-qualified as Judge Gorsuch, it proved, without a 
shadow of a doubt, that they would filibuster any one submitted by this 
Republican President. That is why, on the day that Majority Leader Reid 
took that unprecedented action in 2013 to break the Senate rules to 
change the Senate rules, I spoke on the floor.
  I concluded my remarks this way. So I want to quote myself:

       So the majority has chosen to take us down this path. The 
     silver lining is that there will come a day when the rolls 
     are reversed. When that happens, our side will likely 
     nominate and confirm lower court and Supreme Court nominees 
     with 51 votes, regardless of whether the Democrats actually 
     buy into this fanciful notion that they can demolish the 
     filibuster on the lower court nominees and still preserve it 
     for the Supreme Court nominees.

  That is what I said when Reid took that extraordinary step. So though 
I am extremely pleased that we will confirm such an exceptional nominee 
to the Supreme Court in the next day or so, I am, of course, 
disappointed with what we were forced to do to get it done. Sadly, I 
cannot say I am surprised. I think my surprise, or the fact that I 
can't be surprised--you can tell it from what I said back there, what I 
just quoted from the 2013 speech that I gave.
  I knew when Majority Leader Reid did it in 2013 that this is where we 
were headed. That is where we ended earlier this afternoon. But the 
bottom line is that you cannot have two sets of rules. You cannot 
clothe yourself in the tradition of a filibuster while simultaneously 
conducting the very first partisan filibuster of a Supreme Court 
nominee in history. You cannot demand a rules change only when it suits 
the Democratic Members of this body.
  You just can't have it both ways. You can't use the Senate rules as 
both a shield and a sword. But I must say, the one thing that does not 
disappoint me is this: The nominee to take Justice Scalia's seat is 
eminently qualified. He will apply the law faithfully without respect 
to persons. He is a judge's judge. Come some time tomorrow, we will all 
start calling him Justice Gorsuch.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Blunt). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WICKER. 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. WICKER. Mr. President, I rise to express my strong support for 
Judge Neil Gorsuch, to say that I will proudly vote in favor of his 
confirmation tomorrow, and to express my confidence that history will 
judge this nominee to be an outstanding Associate Justice of the 
Supreme Court. I hope he serves a long and distinguished career and 
believe he will. I think Justice Neil Gorsuch will turn out to be a 
credit to the Supreme Court, to the President who nominated him, and to 
the Senate that will confirm him tomorrow.
  It is unfortunate that we have had quite a bit of discussion about 
procedure and the process that has gotten us to this vote, which will 
take place tomorrow afternoon.
  I had a conversation with one of my Democratic colleagues yesterday 
afternoon as we were leaving the Capitol Building. This is a person 
with whom I have worked on issues and for whom I have great regard. I 
asked him how he was doing, and he said: Well, OK. I am just getting 
ready for the United States Senate to be forever changed.
  I paused for a moment, and I said: How can it be that two reasonably 
intelligent Senators of good will can look at the same factual 
situation and see it so differently? I think my colleague did agree 
that, indeed, the situation we have is what has led us to our 
proceedings today.
  I do believe my colleagues on the other side of the procedural issues 
today are people of good will who are trying to do the right thing by 
their country on this issue, just as I have been.
  Let's look first of all at the candidate himself, and then I might 
take a moment or two to talk about what we have already done. That 
decision has been made. Let's talk about Neil Gorsuch, about this 
outstanding future Supreme Court Justice who I believe will be sworn in 
tomorrow or the next day.
  Is Neil Gorsuch qualified? Really, can anyone contest that he is 
highly qualified? He is perhaps one of the most qualified people ever 
to have been nominated by a President for the High Court. He has 
degrees from Columbia, Harvard Law, and Oxford University. He has 
received the American Bar Association's highest rating, the gold 
standard that we look at when it comes to judging nominees for the 
Federal bench up to and including the High Court. He served for 10 
years with distinction on the Tenth Circuit Court of Appeals. Clearly, 
he has got the qualifications, and clearly, he is among that group of 
qualified individuals that the President promised to look at back 
during the campaign and promised to send that type of individual over 
to the Supreme Court. I really don't think there is much that can be 
said to contradict the fact that Neil Gorsuch is qualified and highly 
qualified.

  So now let's ask if Neil Gorsuch is somehow out of the broad judicial 
mainstream. Again, I think it is clear that, based on his history, 
based on his testimony, and based on his rulings up until now, he is 
part of the broad judicial mainstream that will put him in good company 
on the Supreme Court and makes him a worthy successor to Justice 
Scalia.
  First of all, he has earned the praise of both conservatives and 
liberals. He has even won the endorsement of President Obama's former 
Acting Solicitor General, who wrote in the New York Times, ``If the 
Senate is to confirm anyone, Judge Gorsuch who sits on the U.S. Court 
of Appeals for the Tenth Circuit in Denver should be at the top of the 
list.'' So thank you to the

[[Page S2409]]

former Acting Solicitor General for going beyond ideology and political 
philosophy and saying a true statement that Judge Gorsuch is 
outstanding and should be at the top of the list.
  Editorial boards across the country have touted Judge Gorsuch's 
credentials and temperament. The Denver Post, his hometown newspaper, 
wrote an editorial praising his ability to apply the law fairly and 
consistently. Of course, there has been newspaper after newspaper from 
the right and left across this country who come down on this side of 
the issue saying that Judge Gorsuch should be confirmed.
  Let's look also--and this has been pointed out so often that you 
wonder if you should say it again, but Judge Gorsuch on the Tenth 
Circuit has participated in 2,700 cases, he has written over 800 
opinions, and has been overruled by the Supreme Court one time. Is this 
a judicial radical? I think not.
  I think this is someone who is demonstrated to be in the judicial 
mainstream--one reversal by the Supreme Court out of 800 written 
decisions and 2,700 votes cast on panels with the Tenth Circuit. He has 
almost always been in the majority some 99 percent of the panels he 
served on, he was in the majority of those opinions, and 97 percent of 
those decisions were unanimous. This is hardly some radical pick as 
some might have suggested.
  Has the process been unfair? We have heard a lot about this. A lot of 
my dear friends on the other side of the aisle feel aggrieved for sure. 
They feel that Judge Garland, the nominee of President Obama in 2016, 
was treated unfairly. I would simply make this observation, and the 
American public can decide if this was unfair.
  This is a vacancy that came up during a heated, hotly contested 
Presidential year. There is really no doubt that, under similar 
circumstances, had the roles been reversed and had a Republican tried 
to nominate a nominee in the last year of his 8-year term, that a 
Democrat majority in the Senate would have done exactly as we did.
  I am not guessing when I say this because the Democratic leaders of 
previous years have said as much. No less than Joe Biden--who was a 
former chairman of the Judiciary Committee and later on became Vice 
President for 8 years--no less than Joe Biden said exactly the same. It 
almost became the Biden rule. Republican Presidential nominees taken up 
during the final year of a term will not be considered by a Democratic 
Senate. So the shoe was on the other foot, and we acted the same.
  So we will leave it up to the American people to decide whether Judge 
Garland was treated unfairly. I do not believe he was. As a matter of 
fact, I felt very comfortable during 2016 saying that who fills a 
Supreme Court seat is so important, such a significant and long-lasting 
decision, that the American people deserve to be heard on this issue. I 
felt comfortable making the Presidential election largely about what 
the Supreme Court would look like over the coming years.
  There is no question about it, the American people got to decide in 
November of 2016 whether they would like a judge in the mold of Justice 
Scalia whose seat we were trying to fill or would they like a judge in 
the mold of Judge Garland who President Obama was seeking to put in 
place. So I make no apology for saying to the American people, You get 
to decide in this Presidential year what sort of Supreme Court you 
want. The American people made that decision, and I am comfortable with 
that.
  I was asked today by several members of the press about the change in 
the rules that I voted for today. It is not a situation that makes me 
overly joyed. It is not my idea of a good time to overrule a precedent 
and to substitute another one in its place. You would rather not do 
that if you are a U.S. Senator; but the fact is that it puts us back 
into a place that we were for 200 years in this Republic.
  From the beginning of this Senate, 1789 through 1889, through 1989, 
up to and including 2003, there was no filibuster at all on Supreme 
Court Justices. There was no partisan filibuster at all in Supreme 
Court Justices, and no judge had ever been denied his position because 
of a partisan filibuster at any level--Federal judge, circuit level, or 
Supreme Court.
  That changed in 2003, and with the Miguel Estrada nomination, our 
Democrat friends stopped a qualified judge from going on the Federal 
appeals court. That was the beginning of an unfortunate 14-year 
experiment in judicial filibusters. It is not a filibuster that I 
think--it is not a precedent or experiment that I think this Senate can 
be very proud of, but it took place over a relatively short period of 
time over 14 years, and it ends it today.
  As of today, the U.S. Senate is back where it was for over 200 years 
in the history of this Senate and the history of our Republic without 
the ability to stop a judge on a partisan filibuster. In fact, this 
fact cannot be contradicted. There has never been in the history of our 
country, even in this past decade and a half of having the 
possibilities of a Supreme Court filibuster, there has never been a 
Supreme Court nominee in the history of our republic stopped by a 
partisan filibuster.
  Today that 225-year or so precedent would have ended had we not acted 
to change the rules back to where we are back to fundamental 
principles. I was not willing to see Judge Neil Gorsuch be that first 
nominee stopped by a partisan filibuster in the history of our country. 
I was simply not willing to do that.
  We now must proceed to the rest of our business. We will confirm 
Judge Gorsuch tomorrow. I think he will serve well. Then we have work 
to do. We have other nominees to consider, and then we've got an agenda 
that we need to tend to for our people.
  I am encouraged by the exchange of the first early steps of goodwill 
after this divisive process. Indeed, there was an article in one of our 
publications today that talked about a healthy feeling now in both 
caucuses, that we have got to put this procedural episode behind us, 
this crisis behind us and legislate.
  I am glad to hear that sort of bipartisan talk coming from the other 
side of the aisle. Another of my friends across the aisle said, ``We're 
not looking for dilatory procedures,'' he said. ``When there are things 
where we can work together, we're looking for that.''
  I am encouraged--even encouraged that my friend who I was talking to 
yesterday afternoon will conclude that we have not forever changed the 
Senate in a negative way, that we are, in fact, back to where we were 
before 2003 and getting things done.
  In the end, this is about an individual who is qualified. It is about 
a vacancy that needs to be filled. I for one am highly comfortable that 
the President, in Neil Gorsuch, has put forth an outstanding, eminently 
qualified judge and that he will serve us well. My vote tomorrow in 
favor of confirmation will be cast enthusiastically and proudly, and I 
think that it will stand the test of time.
  I thank the Presiding Officer very much, and at this time, I yield 
the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. RUBIO. 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. RUBIO. Mr. President, tomorrow morning or tomorrow afternoon at 
some point, we will, I believe, vote to confirm Judge Gorsuch to be a 
Justice to the U.S. Supreme Court. There is so much that has been said 
about him and his qualifications. I have been listening to the speeches 
all week. Even headed to the committee hearing, I think so much had 
been said about him. This is a mainstream candidate. This is a 
mainstream judge. He is someone who voted with the majority 99 percent 
of the time during his time on the bench. He is someone who 97 percent 
of the time, in 2,700 cases, was a part of rulings that were unanimous. 
He most certainly, I believe, is someone who believes the Constitution 
should be interpreted according to its original intent of the writers, 
but he is certainly not someone outside the mainstream of American 
legal thinking, and he is certainly eminently qualified. It is 
interesting in that you see a broad array of individuals come forward 
and talk about his qualifications.
  I also thought it was interesting that there really was no coherent 
reason for

[[Page S2410]]

opposing him. There are a lot of different opinions on the floor that 
claim he would not commit to certain decisions that people would like 
to see him make on the Court. That would be true of virtually everyone 
who has been nominated to the Court over the last quarter century.
  There is no doubt that he is someone who has certain beliefs and 
views about the Constitution that are reflective of the President's 
party, but that is what elections are about. Obviously, the great 
people whom President Obama appointed reflected his thinking. That is 
our system.
  A lot of the attention, though, in this debate has been about the 
process that brought us here. There has been tremendous consternation 
about the change that no longer would there be a requirement of 60 
votes in order to end debate. I think a lot of people have a 
fundamental misunderstanding of what has happened and how we have 
gotten here, and I thought it was important for the people of Florida 
and others who may be interested to know how I approached it, because 
it was something that I am not excited about or gleeful about or happy 
about. I would say that is probably the sentiment of most of the people 
here in the Senate. Yet it happened anyway.
  I saw a cartoon by one of these editorial cartoonists; I am not quite 
sure who it was. It had this picture of both sides basically saying: 
This is terrible, but we are going to do it anyway.
  I think it is important to understand, first and foremost, about the 
Senate. It is unique. There is no other legislative body like it in the 
world. Unlike most legislative institutions, it does not function by 
majority rule. It actually requires a supermajority to move forward. 
That was by design; it was not an accident.
  The people--the Founders, the Framers--created a system of government 
in which they wanted one branch of the legislature to be very vibrant, 
active, representative of the people. They represent districts, and 
they have 2-year terms. Then they created another Chamber which was 
different in nature. At the time, the U.S. Senate was designed, first 
of all, to represent the States. Where the House was the people's 
House, the Senate was the place the States were represented.
  The other thing they wanted to design was a place that was at some 
level possibly immune from the passions of the moment. They wanted a 
place where things would slow down for a moment, where we would take a 
deep breath and make sure we were doing the right thing. It was a wise 
course.
  Our Republic is not perfect, but it has survived for over two 
centuries. In the process, it has given us the most dynamic, most 
vibrant, and, I believe, the most exceptional Nation in all of human 
history. While not perfect, the Senate has been a big part of that 
endeavor.

  By the way, at the time, Senators were elected by the legislature; 
they were not even elected by people. Of course, that changed. I am not 
saying we should go back, but that is the way it was.
  That Senate was also unique because it had this tradition of 
unlimited debate. When a Senator got up to speak, they got to debate as 
long as they wanted, and no one could stop them. Then, at some point, 
that began to get a little bit abused, so they created a rule that 
required a supermajority, and that supermajority was further watered 
down. Then we arrive here, over the last 4 years, to see what has 
happened.
  Basically, what happens now is that there are two ways to stop 
debate, which is as a result of a procedure that was undertaken on the 
floor first by Senator Reid when he was the majority leader and now by 
the majority leader today on what is called the Executive Calendar, 
where there are nominations for the Cabinet, Ambassadors, the sub-
Cabinet, courts, and now the Supreme Court. No. 1 is by unanimous 
consent, when everybody agrees to it, or, No. 2, through 51 votes, a 
majority vote.
  I think that is problematic in the long term, not because of Judge 
Neil Gorsuch, for I believe that in any other era and at any other 
time, he would not have just gotten 60 votes or even unanimous consent 
to stop debate; I think he would have gotten 60-plus votes, maybe 70 
votes, to be on the Court. I think it is problematic because we do not 
know who is going to be the President in 15 years or what will be the 
state of our country. Yet, by a simple majority, without talking to a 
single person or getting a single vote from the other party or the 
other point of view, they are going to be able to nominate and confirm 
and place someone on the bench of the Supreme Court--to a lifetime 
appointment to a coequal branch of government--without even consulting 
with the other side. I think, long term, that is problematic--in the 
case of Neil Gorsuch, not so much, but for the future of our country, I 
think it could be problematic.
  The argument has been made that this has never been used before, so 
all of the stuff brings us back to where we once were. I think 
technically that is accurate, but this is not exactly where we once 
were. Where we once were was that there were people who worked here who 
understood they had the power to do this. They got it. They understood 
that if they had wanted to, they could have forced the 60 votes. They 
understood they had the power to do it, but they chose not to exercise 
it. They chose to be judicious because they understood that with the 
power, there comes not just the power to act but sometimes the power 
not to act, to be responsible, to reserve certain powers for 
extraordinary moments when it truly is required. And over the years, it 
has been abused.
  This is not going to be a speech where I stand up here and say that 
this is all on the Democrats, although I most certainly have had 
quarrels over some of the decisions that have been made by the other 
side of the aisle. I think it is a moment to be honest and say that we 
all have brought us here to this point, both sides, and it has required 
us to do this.
  The reason I was ultimately able to vote for the change today is that 
I am convinced that no matter who would have won the Presidential 
election and no matter which party would have controlled this Chamber, 
that vote was going to happen. Both sides were going to do this because 
we have reached a point in our politics in America where what used to 
be done is no longer possible, and that has ultimately found its way 
onto the floor of the U.S. Senate.
  Rules are rules, and ultimately the Republic will survive the change 
we have seen here today. I think the more troubling aspects are the 
things that have brought us to this point.
  A couple of days ago, while at a lunch with my colleagues, I said 
that one of the things, I think, we are going to have to accept is 
that, quite frankly, the men and women who served in this Chamber 
before us--20, 30 years ago--were just better than we are. They were 
human beings who, quite frankly, had deeply held beliefs. I do not know 
of any Member of this Chamber who was more conservative than Barry 
Goldwater or Jesse Helms. I do not know any Member of this Chamber who 
was more progressive or liberal than Hubert Humphrey or Ted Kennedy or 
others. Yet somehow, despite their deeply held principles, these 
individuals were able to work together to prevent what happened here 
today.
  The fact is, for both sides, that is not possible anymore. Today, our 
politics require us to use every measure possible, even if it is for 
symbolic purposes. That is just the way it is. That is more of a 
reflection of our political process than it is of the Senate.
  I have seen these articles that have been written of ``the end of the 
Senate'' or ``the death of the Senate.'' It is a little bit of an 
exaggeration, but I think it is actually just reflective of the fact 
that this is the way politics has become, that as a nation today, we 
are less than ever capable of conducting a serious debate about major 
issues in the way we once were able to do. I think everyone is to 
blame.
  I think the way politics is covered is to blame. Today, most articles 
on the issues before us are not about the issues before us; they are 
about the politics of the issues before us. Today, most of the work 
that is done in this Chamber and in the other Chamber has more to do 
with the messaging behind it than it does with the end result of where 
it will lead us. That is just the honest fact.
  Before people start writing or blogging: Well, look at all of these 
other times when the Senator from Florida--when I did some of these 
things--I admit it. I do not think there

[[Page S2411]]

is a single person here with clean hands on any of this. I admit that I 
have been involved in efforts that, looking back on some of these 
things, perhaps, if we knew then what we know now, we would have done 
differently. I think it is important in life to recognize and learn 
from those experiences and to adapt them to the moment before us.

  I think, moving forward, the biggest challenge we will face in the 
country is that our issues are not going to solve themselves. They will 
require people from very different States, very different backgrounds, 
and very different points of view to be able to come together and solve 
some pretty big deals. It is ultimately not about silencing people or 
having them compromise their principles but about acknowledging that in 
our system of government, we have no choice but to do so. We have no 
choice.
  I think it also requires us to take a step back and understand that 
the people who have a different point of view than ours actually 
believe what they are saying. They hold it deep, and they represent 
people who believe what they are saying. I say this as someone who will 
admit that, in my time of public service, perhaps I have not always 
applied that as much as I wish I had. I try to. You certainly live and 
learn when you get to travel the country and meet as many people as I 
did over the last couple of years. I certainly think that impacts us 
profoundly.
  I have a deeply held belief in limited government and free enterprise 
and a strong national defense and the core principles that define 
someone as a conservative. But I have also grown to appreciate and 
understand the people who share a different point of view--perhaps not 
as much as I hope to one day be able to understand and respect it, but 
certainly more than I once did, simply because the more people you 
meet, the more you learn about them, and the more you learn and 
understand where they are coming from.
  Are we capable as a society to once again return to a moment where 
people who have different ideas can somehow try to figure out how to 
make things better, even if the solutions are not perfect? I hope so, 
because the fate of the most important country in human history is at 
stake. Are we capable of once again having debates, not that aren't 
vibrant and not that from time to time people may say things or even do 
things that they may regret, but certainly ones that at the end of the 
day are constructed for the purpose of solving a problem, not winning 
an election. I hope so, because if we don't, we will have to explain to 
our children why we inherited the greatest country in human history and 
they inherited one that is in decline.
  I don't mean to exaggerate, because ultimately this is a rule change. 
We don't vote on the Supreme Court every day, every week, every month. 
Sometimes we don't vote on it for long periods of time. But I think it 
exposes a more fundamental challenge that we face today in American 
politics, and that we better confront sooner rather than later, and 
that we should all confront with the understanding and the knowledge 
that none of us come to it with clean hands.
  We were reminded again this week by the images that emerged from 
Syria of what a dangerous world we live in, and we are reminded that 
the threats remain.
  I ask people tonight--no matter who you write for, who you blog for, 
what political party you are a member of, or whom you vote for in 
November--to ask yourself a question and to be honest about the answer. 
If, God forbid--and I mean this, God forbid--there were another 9/11-
style attack on the United States, how would we honestly react? Because 
September 11 was a scary day, and on that day I remember there weren't 
Democrats or Republicans. Everyone was equally frightened and everyone 
was equally angered. There was a sense of unity and purpose that we had 
not seen in a long time and have not seen since.
  I honestly believe, sadly, that if today there were another 9/11-
style attack on America, one of the first things we would see people 
doing is blaming each other, saying whose fault it was. You will have 
some people saying: Well, this terrorist attack happened because 
President Obama didn't do enough to defeat the terrorists. And others 
would say: It happened because the Republicans and the new President, 
President Trump, has not done enough, or has done things to provoke 
them. I honestly believe that. I think that is what the debate would 
look like. I hope I am wrong.
  Just think about how far we have come in almost 20 years, 15 years. 
That is the kind of debate I believe we would have. Think about how 
destructive that is.
  I also think we would see a plethora of crazy, fake stories about 
what was behind it. And here is the craziest part: Some very smart and 
educated people would believe those stories because we have reached the 
point now where conspiracies are more interesting than facts.
  I know that people may see this and say: Oh, I think you are 
exaggerating. Maybe, I hope so. But I honestly think that we are headed 
in a direction that is actually making us--not us the Senate, but us, 
Americans--incapable of confronting problems.
  I will just say this. What I really hope will happen soon is that we 
are going to get tired of fighting with other Americans all the time, 
that we will finally get fatigued with all of this constant fighting 
against other Americans. Americans are not your enemies. Quite frankly, 
I hope we have no enemies anywhere in the world, other than vicious 
leaders, and we hope to be a part of seeing taken them out of power at 
some point for the horrible things they do. I hope we will reach a 
point where people are saying, I am just tired of constantly fighting 
with other Americans. We will have differences and we will debate them. 
Thank God that we have been given a republic where we have elections 
every 2 years and where we can have these debates. But, in the interim, 
whether we like it or not, none of us is going anywhere.
  The vast and overwhelming of majority of Americans will live in this 
country for the rest of their lives. This is their home and this is 
their country. We are going to have to figure out how to share and work 
together in this unique piece of land that we have been blessed with 
the opportunity to call home. If we don't figure out a way to do that 
soon enough, then many of these issues that confront America will go 
unsolved, and not only will our people pay a price and our children pay 
a price, but the world will pay a price.
  So I know that is a lot to say about a topic as simple as a rule 
change and ultimately a vote for the Supreme Court, but I really think 
it exposed something deeper about American politics that we had better 
confront sooner rather than later, or we will all live to regret what 
it leads to, and that is the decline of the single greatest Nation in 
all of human history.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.


Congratulating the University of South Carolina Women's Basketball Team 
            on Winning the National Basketball Championship

  Mr. GRAHAM. Mr. President, on a more upbeat note, the lady Gamecocks 
are national champions.

  On April 2, this past Sunday, the University of South Carolina 
women's basketball team beat Mississippi State 67 to 55 to end a 
magical season and become the national champions.
  This is a magical year for the State of South Carolina. We have the 
Clemson Tigers, who are the national football champs. Coastal Carolina 
University is the College World Series title holder for baseball. Now 
we have the lady Gamecocks as the national champs and in women's 
basketball. Dustin Johnson is the No. 1 golfer in America, who hurt his 
back today and had to withdraw from the Masters. So that was bad.
  This was a great year. I went to the University of South Carolina. I 
still have 4 years of eligibility in all sports for a reason: I was no 
good. My colleague who is here actually played college football, and we 
are both Gamecocks fans.
  Coach Dawn Staley came to South Carolina in 2008. She has been on 
three gold medal national championship teams as a player. She is now in 
the Hall of Fame for basketball and is one of two African-American 
female head coaches to win the national title in women's basketball. 
She is the real deal. She is a wonderful lady.
  A'ja Wilson, our dominating junior forward, was the MVP for the Final

[[Page S2412]]

Four and SEC player of the year, and first team All American. All the 
girls played really, really hard.
  The men's basketball team made it to the Final Four and lost in a 
very tough contest. I could not be more proud of the University of 
South Carolina men's basketball team.
  Frank Martin, the men's basketball coach, is the National Coach of 
the Year.
  This is a special time in South Carolina. If you are a Gamecocks fan, 
you have been long suffering for a while, and our ship finally came in.
  So congratulations to the lady Gamecocks. I can't wait until next 
year. We always say that with a sense of dread, but I can't wait until 
next year for South Carolina, Clemson, and every other sports team in 
South Carolina. We are doing something right. I don't know what it is, 
but we are all grateful in South Carolina.
  I yield to my colleague, who actually played college football, and I 
don't think he has any eligibility left because he was good.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. Mr. President, just in the very few spaces that are left 
after we finish chatting about our great State and the great season our 
school had, there are two things I want to note. No. 1, Coach Frank 
Martin: coach of the year, a fantastic person, a great communicator, a 
strong, disciplined coach. It is very hard to misunderstand what he is 
saying.
  Coach Staley: Absolutely, positively, unequivocally the best women's 
basketball coach, in my opinion, ever, against UCONN--ever. Dawn 
Staley, 20 years ago, came within a single point of winning a national 
championship as a player. Can you just imagine being a single point 
short? And this must feel like redemption for our coach.
  We are so proud of the fact that both of our coaches are producing 
student athletes, learning academically, striving on courts but 
prepared for life, for living. So we are excited about that.
  I want to note as well that there have only been 10 times in NCAA 
history--10 times--that both the women's and the men's basketball teams 
from the same school were in the Final Four at the same time.
  It is a good time to be a South Carolinian.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Mr. President, I have a question for the Senator from 
South Carolina. It is very important.
  Is the Senator aware that Frank Martin, an incredible coach for the 
men's basketball team is from Miami, FL?
  Mr. SCOTT. I am aware of that. And that is relevant to you how?
  Mr. RUBIO. I just wanted you to know.
  Mr. SCOTT. Will the Senator yield for a question?
  Mr. RUBIO. I will.
  Mr. SCOTT. What State are you from, sir?
  Mr. RUBIO. Florida.
  Mr. SCOTT. In what part of Florida were you born and raised?
  Mr. RUBIO. South Florida.
  Mr. SCOTT. Have you had any relationship with the coach before, 
Senator?
  Mr. RUBIO. I have. Coach Martin is a good friend, and I think a 
testament to how much Florida has to contribute to South Carolina.
  Mr. SCOTT. Having been there when you were in South Florida, I would 
say we made a big contribution to you too.
  Mr. RUBIO. I would say to the Senator from South Carolina, South 
Carolina has gotten better results for Frank Martin than it did for me. 
But we are very proud of Coach Martin. I would just add that, given the 
litany of athletic success this year by the State of South Carolina, I 
find that to be highly suspicious. I know I just spoke about conspiracy 
theories, but statistically, it is very unlikely that a State would 
have that many championships. I am not calling for a congressional 
inquiry, but I think it is an interesting topic of conversation.
  Mr. SCOTT. Mr. President, if my colleague will yield, I would note 
that Senator Graham did have clarity in his purpose of identifying the 
fact that the State has only 4.7 million people in a country of 330 
million people, and we have been able to secure the No. 1 golfer, that 
is true; the No. 1 baseball team, that is true; and the No. 1 football 
team in all of the Nation, Clemson University, that is true; and now 
the women's basketball champions, and that is true as well. However, I 
would point out that we were able to show you a wonderful experience as 
well in the State of South Carolina, and I hope that one day when you 
retire from politics, you and your lovely wife will join us and become 
a South Carolinian yourself. Perhaps then, and only then, will you be a 
successful football coach. You have a promising career in politics, but 
I know that you love and have passion for football, and perhaps when 
you retire, you too will be a national champion football coach.
  Mr. RUBIO. That is highly unlikely. But in all seriousness----
  Mr. SCOTT. I am serious----
  Mr. RUBIO. I do want to restate that Frank Martin is really an 
extraordinary person. Much more, Senator Scott and I both had a chance 
to interact with him on a number of occasions. I don't mean to single 
them out among all of the other suspicious athletic accomplishments in 
South Carolina that are certainly worth noting, but I would say, with 
Frank, one of the things that really impresses me is not what he does 
with these young men on the court but the kind of influence he is in 
their lives off the court and the impact he has.
  He was a high school coach in Miami and won State championships 
there. He comes from a hard-working family of Cuban exiles who made 
their home in South Florida. So we are very, very proud of what he has 
achieved. But what I am most proud of is the way Coach Martin has been 
able to influence those young men.
  He did defeat the Florida Gators to make it to the final four, and I 
was not happy about that. But I would say this--and I have said it to 
others--if the Florida Gators had to lose, I would want it to be to 
Frank Martin because of the extraordinary work he does. So I can't wait 
to see which Florida university hires him away.
  Thank you.
  Mr. SCOTT. Before Senator Rubio walks off the floor, having had the 
opportunity to listen to him over a number of years, he is eloquent. He 
is inspiring. Sometimes he is just dead wrong. Coach Martin will be 
staying at the University of South Carolina, without any question at 
all.
  Let me put the suspicions to rest. The reality of it is that good 
teams are made up of good recruiting. The fact that we have great 
recruiters in the State of South Carolina is indicative of the fact 
that we have a lot of titles in our State.
  So I will be praying for the Senator's State to succeed during the 
hurricane season, without any question, and to be consistently behind 
the State of South Carolina in every athletic event in which we have a 
competition, wherever there is a competition.
  Mr. RUBIO. I was going to say, I am not going to invoke that rule.
  Mr. SCOTT. Rule XIX.
  Mr. RUBIO. I think it is a good opportunity to say nothing--but 
congratulations, and we will be back.
  Mr. SCOTT. In a decade. Thank you.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, I have listened over the last several 
weeks to accusations and a type of smear campaign, quite frankly, of a 
good judge and a good man: Neil Gorsuch.
  It is remarkable to me to see that the debate has become more about 
character destruction than it has been about policy differences. I 
understand there are policy differences, but why does it have to come 
to this?
  In the past few weeks, I have heard on this floor that Neil Gorsuch 
shouldn't be a Justice on the Supreme Court because he has no 
independence from President Trump.
  No. 2, I have heard he was handpicked by far right groups like the 
Federalist Society, a group of legal minds committed to the original 
interpretation of the Constitution--clearly, a scandalous group of 
radicals.
  I have heard that Judge Gorsuch supports torture, he is against 
privacy, he hates truckers, he will step on the little guy, he will 
help only big corporations, he is just not mainstream, and I have heard 
that he shouldn't be selected because he was not approved first by the 
Democratic Senate leadership.

[[Page S2413]]

  All of these reasons have been given for a historic change in Senate 
tradition not to give a Supreme Court Justice an up-or-down vote. Block 
him on a procedural motion; for the first time ever, block a Supreme 
Court Justice on a procedural motion with a partisan vote.
  Let me take these one at a time as I walk through this.
  No. 1, I heard constantly that he is not independent enough from 
President Trump. As far as I know, he had never even met President 
Trump before. This didn't seem to be a standard, to be independent from 
the current sitting President.
  Let me give an example: Justice Elena Kagan, who is clearly qualified 
as a legal mind, but I would say Republicans have serious policy 
differences with her. Justice Kagan was allowed to have an up-or-down 
vote. This body did not have a standard that they had to be independent 
from the President. If they had a standard like that, Justice Kagan 
would have never been on the bench. Why do I say that?
  On May 10, 2010, President Obama nominated Elena Kagan to be an 
Associate Justice of the Supreme Court. From 1997 to 1999, she served 
as Deputy Assistant to the President for Domestic Policy and was Deputy 
Director of the Domestic Policy Council for President Clinton. In 2009, 
she was confirmed Solicitor General of the United States for President 
Obama. She worked for President Obama in the Obama White House as his 
Solicitor General and then was taken directly out of the White House 
and put on the Supreme Court.
  I would say that is not independent from the President. So this 
mythological new standard that any Court Justice nominee needs to be 
independent from the President clearly wasn't in place when Elena Kagan 
was being heard.
  It is also interesting to me that one of the most talked about 
decisions from Judge Gorsuch was a Chevron decision that he put out. 
The whole crux of that decision was the independence of the executive 
branch, the legislative branch, and the judicial branch. Let me just 
read a few paragraphs from the decision he wrote. He wrote this:

       For whatever the agency may be doing under Chevron, the 
     problem remains that courts are not fulfilling their duty to 
     interpret the law and declare invalid agency actions 
     inconsistent with those interpretations in the cases and 
     controversies that come before them. A duty expressly 
     assigned to them by the APA [Administrative Procedures Act] 
     and one often likely compelled by the Constitution itself. 
     That's a problem for the judiciary. And it is a problem for 
     the people whose liberties may now be impaired not by an 
     independent decisionmaker seeking to declare the law's 
     meaning as fairly as possible--the decisionmaker promised to 
     them by law--but by an avowedly politicized administrative 
     agent seeking to pursue whatever policy whim may rule the 
     day. Those problems remain uncured by this line of reply.

  In other words, the judiciary needs to have oversight of the 
executive agency in what they put out as far as agency rulings, not 
allowing the White House or any agency to just make any decision they 
like. He continued writing:

       Maybe as troubling, this line of reply invites a nest of 
     questions even taken on its own terms. Chevron says that we 
     should infer from any statutory ambiguity Congress's 
     ``intent'' to ``delegate'' its ``legislative authority'' to 
     the executive to make ``reasonable'' policy choices. But 
     where exactly has Congress expressed this intent? Trying to 
     infer the intentions of an institution composed of 535 
     members is a notoriously doubtful business.

  In all the accusations that he is not independent of the President, 
in one of his most famous opinions, he declares that we absolutely need 
to have independence from the White House--of any White House--and have 
a clear separation of powers between judiciary, legislative, and 
executive. That actually does not stand up to simple muster. So the 
first thing falls: no independence from the President.
  The second issue which came up often was that he was handpicked by 
far-right groups. There were all these groups that handpicked him, so 
somehow that made it horrible that these different groups would 
actually try to support him.
  I go back to Justice Kagan. Again, that wasn't the standard at that 
time, and I could use numerous judges through that process. Elena Kagan 
was supported by the AFL-CIO, by the Human Rights Campaign, by numerous 
environmental groups like WildEarth Guardians, Sierra Club, and the 
National Organization for Women. She had a lot of different liberal or 
progressive groups that were very outspoken in support of and helping 
to push her nomination.
  There is nothing wrong with that. She was a nominee who was actively 
engaged in White House politics; she was actively engaged in Democratic 
campaigns. Before that, as far as working for the Dukakis campaign, she 
was a Democratic activist, and it was well known. That did not preclude 
her from getting an up-or-down vote for the Supreme Court because she 
is sitting on the Supreme Court today. There was no cloture vote 
mandate or requirement for a 60-vote threshold as there was pushed by 
this minority.
  This issue that somehow you can't be handpicked or that having some 
groups that would support you from the outside somehow precludes you 
from being a serious consideration is not legitimate, and everyone 
knows it.
  I have also heard individuals out there saying that he is for 
torture, he is against privacy, he hates truckers, he will step on the 
little guy, he is only for big corporations, and he is not mainstream.
  Here is the problem: When you actually look at the history, it is 
very different from that. Of the 2,700 cases that Judge Gorsuch has 
been involved in, in the 10\1/2\ years he has been on the Tenth 
Circuit, he has been overturned in his opinions once--once in 2,700 
cases; 97 percent of the time his cases were settled unanimously, and 
99 percent of the time he voted with the majority.
  Lest you don't know the Tenth Circuit as we know the Tenth Circuit in 
Oklahoma, because it is the circuit court for our State, the majority 
of the judges on the Tenth Circuit are judges selected by President 
Carter, President Clinton, and President Obama. They hold the majority 
in the Tenth Circuit. So to say that he voted with them in the majority 
99 percent of the time would be to say that the Carter, Clinton, and 
Obama appointees also apparently had these radical ideas. It is just 
not consistent with the facts.
  Then I have heard of late that the President should have engaged with 
Senate leadership on both sides of the aisle to be asked for their 
approval of the nominee before that nominee was ever brought. Well, I 
don't know if that has ever been a requirement. There have been times 
that Presidents in the past have had conversations with people on both 
side of the aisle. Fine, but it is certainly not a requirement of the 
Constitution, and it certainly doesn't preclude a nomination.
  It is interesting to me that Judge Gorsuch offered to meet with 100 
Senators one-on-one, face-to-face. Only 80 of them accepted his offer; 
20 of them refused to even meet with him face-to-face. He did 4 days of 
hearings in the Judiciary Committee, 4 solid, long days, where he 
answered every possible question he could answer.
  He has had extensive background checks. Everyone has gone through 
every piece of everything they could find that has ever been written. 
In fact, the latest new accusation is they found a couple of places 
where what he wrote seemed to look strangely like something else 
someone else wrote--which, when I saw it and read the side-by-side on 
it, I thought: He forgot to do an annotation and a footnote in the 800 
opinions he has written. In the tens of thousands of annotations that 
he did, he didn't do a couple of them. Somehow that doesn't seem to 
rise to the level that he shouldn't be on the Supreme Court--that in 
the tens of thousands of annotations he put there, he might have missed 
a couple.
  I would challenge anyone serving in this body, to say: You can serve 
only if you have never missed a single footnote on any paper you ever 
wrote. I would say: Those who live in glass houses probably shouldn't 
throw stones because we have all had times like that.
  He is a solid jurist. I believe he will do a good job. In the time I 
sat down in his office, we looked at each other face-to-face, and I 
went through multitudes of hard questions with him, trying to determine 
his judicial philosophy, seeking one simple thing: Will you interpret 
the law as the law--not with personal opinion but as the law.
  This body is about opinions. This body is about listening to the 
voices all across our States and trying to make

[[Page S2414]]

good policy. Across the street at the Supreme Court, it is about one 
thing: What does the law say and what did it mean when it was written?
  The Constitution and law were not living documents. They do live in 
the sense that if you want to make changes in the Constitution, you 
amend the Constitution and you make changes to it. You can't suddenly 
say it meant one thing one day but culture has changed and now it means 
something new.
  If you need new law, this body passes new law. Across the street, 
they read the law and ask: What does it mean? It is that 
straightforward.
  I look forward to having a jurist on the Supreme Court as an 
Associate Justice who says: I may not even like all my opinions and you 
may not like all my opinions, but I am going to follow the law, and 
what the law says is what we are going to do.
  I think that is the best we can ask from a Supreme Court Justice, and 
I think it is a fair way to be able to get him an up-or-down vote. I 
have to tell you, I am profoundly disappointed that the Senate, to get 
a simple up-or-down vote, had to go through all of this just to be able 
to do what we have always done. Regardless of background or preferences 
or policy or politics, this body has always said the President, for his 
nomination, should get an up-or-down vote when they go through the 
process.
  We are going to do that tomorrow. We will put Judge Gorsuch on the 
bench, and we are ready for him to go to work.
  Mr. President, I yield back.
  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. PERDUE. 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. PERDUE. Mr. President, it is humbling to be on the floor of the 
U.S. Senate with colleagues like Senator Lankford from Oklahoma. It is 
an honor to listen to his words, to his heart, on an issue like today 
because this is, I believe, a historic day.
  On January 31 of this year, I had the great honor of being invited to 
the White House when President Donald Trump announced his nominee for 
Associate Justice of the U.S. Supreme Court, Judge Neil Gorsuch. It was 
a professional rollout of this nomination, but it spoke more to the 
man, the individual, Judge Gorsuch, than it did to the circumstance 
surrounding it.
  Today, I want to again discuss Judge Gorsuch's nomination and the 
200-plus years of historical precedent put on the line today. As an 
outsider of this political process, it is clear to me what is going on 
here. It really has nothing to do with Judge Gorsuch.
  The minority party today abandoned 230 years of tradition because of 
politics, in my opinion. Never before in the U.S. history has a purely 
partisan filibuster killed a Supreme Court nomination. Never before, in 
the history of our country, has a partisan filibuster killed a district 
judge nomination. Never before, and until 2003, has a partisan 
filibuster killed a circuit judge nomination. Mr. President, 2003 was 
the first time in our history that the rules of the Senate were used in 
a purely partisan way to stop a judicial nomination.
  In 2003, the Democratic Party threw out over 200 years of precedent 
when it comes to circuit judge nominees and killed a circuit judge 
nomination. Today they attempted to do the same thing when it comes to 
a nominee to the highest Court in the United States.
  It should be noted Republicans did not attempt to do this to either 
Justice Sotomayor or Justice Kagan when they were nominated by 
President Obama a few years ago. Throughout our history, even the most 
controversial Supreme Court nominees have gotten an up-or-down vote, a 
simple majority vote. On that note, I also wish to point out there is 
no longstanding rule or tradition that a Supreme Court nominee must 
obtain 60 votes to be confirmed.
  Judge Clarence Thomas was confirmed by a narrow 52-to-48 margin. Even 
though a single Senator could have required 60 votes to invoke cloture, 
and none did. Likewise, Justice Samuel Alito was confirmed by a 58-to-
42 margin. Again, no Senator required 60 votes to invoke cloture. 
Neither of those nominees were filibustered to death. They got an up-
or-down vote.
  Mainstream media outlets have repeatedly fact-checked the minority 
party on this. For example, last week the Washington Post said: ``Once 
again: There is no `traditional' 60-vote `standard' or `rule' for 
Supreme Court nominations, no matter how much or how often Democrats 
claim otherwise.''
  Even PolitiFact has repeatedly pointed out that ``Gorsuch, like all 
other Supreme Court Justice nominees, needs only a simple majority to 
be confirmed by the Senate.''
  Clearly, outside of this body, it is recognized in the media, and on 
both sides of the aisle for that matter, that there is no such thing as 
a 60-vote standard when it comes to the nomination and confirmation of 
Supreme Court Justices.

  Additionally, the notion that the minority party filibustering Judge 
Gorsuch's confirmation is the same as our not allowing a vote last 
year, that logic doesn't hold up.
  Last year, I joined many of my colleagues on the Senate floor in 
explaining why we felt it best not to give advice or consent on the 
nomination of a Justice to the Supreme Court during a Presidential 
election year. The integrity of the process, clearly outlined in 
article II, section 2, of the Constitution was at stake. It was about 
the principle, not the individual. Unlike the argument that it is 
tradition for a Supreme Court nominee to receive 60 votes, there is 
actual precedent for the position we took last year on President 
Obama's Supreme Court nominee.
  Former Vice President Biden, former Minority Leader Reid, and many 
other Members of both parties have agreed that the political theater of 
a Presidential election year should not influence the process.
  The last time a Justice was nominated and confirmed by a divided 
government in a Presidential election year was 1888. Clearly, there is 
more than 100 years of precedent for the position we took last year in 
not giving advice and consent.
  We took a position that was consistent with more than 100 years of 
actions and comments from Members of both parties. Let's just get over 
that. This year stands on its own, independently. The time for debate 
on this issue has come and gone.
  Furthermore, it is obvious that what is at issue here is not Judge 
Gorsuch's qualifications. In 2006, Judge Gorsuch was confirmed to the 
Tenth Circuit Court of Appeals by a voice vote in this body with no 
opposition. Again, no opposition on the floor of the U.S. Senate, just 
10 years ago.
  Then-Senator Biden did not object, then-Senator Reid did not object, 
then-Senator Clinton did not object, and, yes, then-Senator Obama did 
not object. Twelve current Members of this body, including the current 
senior Senator from New York, the senior Senator from Illinois, the 
senior Senator from California, did not object to Judge Gorsuch's 
confirmation in 2006.
  It is a simple fact, they had the opportunity to raise an objection, 
and they did not do it. It is obvious that what is going on here has 
nothing to do with Judge Gorsuch's qualifications. What is at issue is 
nothing but pure, unadulterated politics.
  This is exactly why I ran for the U.S. Senate, having never been 
involved in politics. This is what makes people home very nervous about 
the gridlock in this body. This is why President Trump still cannot 
meet with his full Cabinet today, months after he was sworn in as our 
President. This is the very cause of gridlock that I believe is causing 
the dysfunction in Washington.
  As I said, Judge Gorsuch was confirmed unanimously by voice vote with 
no opposition in 2006. Judge Gorsuch is a principled jurist who is 
steadfast in his commitment to defending and upholding the 
Constitution.
  In my private meetings with him, I have been very impressed that this 
is his starting and finishing point: He is there to interpret the law, 
not to be an activist for his own personal opinion. He boasts a 
unanimous seal of approval from the gold standard, the American Bar 
Association.
  Throughout his extensive career in both the public and private 
sectors and through hour after hour of testimony, Judge Gorsuch has 
demonstrated an impartial commitment to the rule of law. This is 
another area in which legal

[[Page S2415]]

minds from both sides of the aisle agree.
  Harvard Law School Professor Noah Feldman, himself no conservative, 
called it a ``truly terrible idea'' to try to force Judge Gorsuch, or 
any judge for that matter, to base their decisions on the parties 
involved. Beyond a shadow of a doubt, I know that Judge Gorsuch fully 
understands that the job of a judge is to interpret, not make, the law.
  As he himself said, ``A judge who likes every result he reaches is 
very likely a bad judge, reaching for results he prefers rather than 
those the law compels.''
  This commitment to impartiality, regardless of those involved in 
individual cases, is further evidence his nomination should be 
confirmed rather than filibustered to death like we have seen today.
  Judge Gorsuch's record is evidence enough that he is an impartial 
judge committed to the Constitution. The opposition has said he is 
outside the mainstream. That also doesn't hold up.
  In 97 percent of his 2,700 cases, judges who also heard the cases 
unanimously ruled with Judge Gorsuch. In 99 percent of his cases, he 
was not a dissenting vote. The other side is consistent in saying he is 
not mainstream. Seriously? How much more mainstream does he have to be?
  To that point, Judge Gorsuch has drawn praise from both liberals and 
conservatives alike. Former President Obama's Acting Solicitor General 
called Judge Gorsuch ``an extraordinary judge and man.''
  He is not alone in that assessment of Judge Gorsuch. Mainstream media 
outlets across the country have praised this nominee to the Supreme 
Court. Recently, the USA Today Editorial Board wrote: ``Gorsuch's 
credentials are impeccable . . . he might well show the independence 
the nation needs at this moment in its history.''
  The Washington Post's Editorial Board wrote:

       We are likely to disagree with Mr. Gorsuch on a variety of 
     major legal questions. That is different from saying that he 
     is unfit to serve.

  The Wall Street Journal Editorial Board wrote: ``No one can replace 
Antonin Scalia on the Supreme Court, but President Trump has made an 
excellent attempt by nominating appellate Judge Neil Gorsuch as the 
ninth justice.''
  As I have noted, the minority party's move to filibuster Judge 
Gorsuch is not rooted in any actual precedent in the U.S. Senate. It 
also clearly has nothing to do with Judge Gorsuch himself. By any and 
all objective measure, he is a mainstream, well-qualified nominee to 
the U.S. Supreme Court.
  That is a point agreed upon by liberals and conservatives alike. Yet 
here we are still today throwing out almost 230 years of tradition, 
purely because of politics. This body must rise above the self-
manufactured gridlock.
  Our last President, according to constitutional law professor 
Jonathan Turley, created a constitutional crisis. It was caused by 
shutting down the Senate and creating the fourth arm of government, the 
regulators, and threatening the very balance of our three-branch 
system. It allowed the former President, through regulatory mandates 
and Executive orders, to basically fundamentally change the direction 
of the country without Congress.
  Given this threat to the Constitution, at this point in our history, 
we absolutely need a jurist on the Supreme Court who will bring a 
balanced view and impartial commitment to the rule of law. It is 
imperative we confirm Judge Neil Gorsuch tomorrow--a principled, 
thoughtful jurist--to the U.S. Supreme Court.
  If we can't confirm this individual, who is absolutely in the middle 
of the profile agreed to by past Democrats and Republicans alike, who 
in the world will we ever be able to confirm?
  Seriously, if we can't get together on this individual, who is in the 
mainstream in the middle of the profile? How in the world are we ever 
going to save Social Security, Medicare, all the other critical issues 
that are before this body? Bipartisan compromise is what this body was 
built on. I call on my colleagues to put self-interest and even party 
interest aside for the Nation's interest.

  I count it an honor to be in this body. It is a sobering 
responsibility, but I am very optimistic when men or women of the 
character of a Neil Gorsuch are willing to go through this grueling 
exercise that we put them through in order to serve. Because of that, I 
am proud tonight to be a part of a majority that stood up and precluded 
this from happening.
  I am so excited that tomorrow we will confirm Judge Neil Gorsuch as 
the next Associate Justice to the United States Supreme Court.
  I yield back my time.
  The PRESIDING OFFICER (Mr. Young). The Senator from Ohio.
  Mr. PORTMAN. Mr. President, I rise today to express my strong support 
again for Judge Neil Gorsuch. I spoke on the floor the other day about 
Judge Gorsuch. I just heard my colleague from Georgia talk about him, 
and he did a terrific job.
  This guy, Neil Gorsuch, is the right person for the job. He is 
qualified. He is smart and he is fair, and a bipartisan majority of the 
Senate will vote for this worthy candidate tomorrow. Let me underscore 
that. A bipartisan majority of the Senate will vote for this worthy 
candidate tomorrow. He will end up getting on the Court.
  I must tell you that I regret that some of my colleagues on the other 
side of the aisle refused to provide him that up-or-down vote without 
going through the process we had to go through today. As someone who 
has gone through two Senate confirmations myself, I know they are not 
always easy. But I will tell you, it is a whole lot better for this 
institution and our country when we figure out ways to work together--
in this case, to continue a Senate tradition of allowing up-or-down 
votes.
  I like to work across the aisle. I have done that through my career. 
I can point to 50 bills I authored or co-authored that have become law 
in the last 6 years. They were bipartisan, by definition, because they 
got through this body and were signed into law by President Obama. I 
have voted for President Obama's nominees before President Trump. When 
President Obama had a well-qualified judge here on the floor, I voted 
for that judge. I voted for Loretta Lynch. That was not an easy vote. I 
took heat for it back home because I thought she was well-qualified. I 
think that is what we ought to do in this body.
  I am disappointed in the situation we are in. I think we could have 
followed more than 200 years of Senate tradition and not allowed for a 
partisan filibuster to try to block this nomination. We chose not to do 
that in this body. Never in the history of this body has there been a 
successful partisan filibuster of a Supreme Court judge--never. Some of 
my colleagues said: How about Abe Fortas? That was several decades ago, 
and that was bipartisan. Abe Fortas was a Supreme Court Justice who had 
some ethics issues, and he actually dropped out of trying to get the 
nomination because of it. But never have we stood up as Republicans--or 
stood up as Democrats--and blocked a nominee by using the filibuster. 
It has just not been the tradition.
  Instead, it has been to allow an up-or-down vote--a majority vote. 
There are two Justices on the Supreme Court right now who got confirmed 
with less than 60 votes. One is Clarence Thomas--probably the most 
controversial nominee in the last couple of decades, I would say. I 
wasn't in the Senate then, but I was watching it, as many of you were. 
It was certainly controversial, yet he got to the Court with 52 votes. 
Justice Alito was confirmed by 58 votes only 10 years ago. So these 
nominees were not filibustered.
  By the way, President Obama's nominees, Elena Kagan and Justice 
Sotomayor, were not filibustered by Republicans. They were given an up-
or-down vote. In the history of the Senate, 12 nominations have been 
defeated on the floor, but, again, never a successful partisan 
filibuster. Even Judge Robert Bork--some of you remember that 
nomination. It was very controversial. His nomination was defeated in 
1987. He was a Reagan appointee. But he wasn't filibustered. They had 
an up-or-down vote, and he was voted down.
  So what are these objections to Judge Gorsuch that would rise to that 
level where we want to say that over 200 years of Senate tradition 
ought to

[[Page S2416]]

be shunted aside and we ought to stop this man? What are those 
objections? I must say that I have listened to the floor debate and 
talked to some of my colleagues on the other side of the aisle. I made 
my case. They made their case. I just don't see why this man is not 
qualified. He was a law clerk for two Supreme Court Justices. He served 
in the Justice Department and had a distinguished career there. He was 
also a successful lawyer in the private sector. And of course, he has 
been a Federal judge for a decade. So we can look at his record.
  My colleague from Georgia just talked about that record. It is why 
the American Bar Association--a group not known to be a conservative 
body--decided that he was ``well qualified.'' They unanimously declared 
him to get their highest rating of ``well qualified.'' This is what 
they said about him. They said:

       Based on the writings, interviews, and analyses we 
     scrutinized to reach our rating, we discerned that Judge 
     Gorsuch believes strongly in the independence of the judicial 
     branch of government, and we predict that he will be a strong 
     but respectful voice in protecting it.

  That is why the American Bar Association gave him their highest 
rating. Not qualified? By the way, nobody objected--nobody--for any 
reason, to his nomination to serve as a Federal judge, to be a circuit 
court judge, a level right below the Supreme Court, back in 2006. Not a 
single Senator objected. By the way, those Senators included Senator 
Hillary Clinton, Senator Barack Obama, Senator Joe Biden, and a number 
of Senators, of course, who are still here today with us, who chose to 
filibuster this nomination. So I don't know.

  I heard some of my colleagues talk about some of his decisions. They 
have picked one or two of his decisions as judge over the past 10 years 
and said they didn't like the outcome, and that is why he is not 
qualified to sit on the Supreme Court. I have a couple of concerns with 
that argument. One, Judge Gorsuch has decided over 2,700 cases. I am 
sure we can all find one or two of these we didn't like. That is true 
for any judge. As I said, I voted for a number of President Obama's 
nominees, and I voted against others based on the merits and based on 
their qualifications. It didn't mean I agreed with them--trust me--or 
disagreed with them on everything. The odds are very good that you 
agree with Judge Gorsuch's decisions a lot more than you disagree with 
them. You know why I say that? Because the odds are really good that 
you agreed with them. Let's try 97 percent, because 97 percent is the 
number of his decisions that were unanimous with the other judges on a 
three-judge panel. So 97 percent of the time, his decisions were 
unanimous.
  Who is on these three-judge panels? Well, it is usually bipartisan in 
the sense that it is nominees who have been nominated by different 
Presidents of different parties. In the case of his circuit court, 
there is Judge Paul Kelly, who was appointed by President George H.W. 
Bush. There have also been several of his colleagues who were appointed 
by President Bill Clinton. Judge Gorsuch even mentioned in his 
testimony that he was on judge panels. He presided with Judge William 
Holloway, who was appointed by President Lyndon B. Johnson. So these 
three-judge panels tend to have judges that were appointed by 
Republicans and Democrats alike--97 percent of the time unanimous. And 
98 percent of the time, his decisions were in the majority.
  So again, I think the odds are pretty good that we are going to agree 
with Judge Gorsuch a lot more than we disagree when we look at his 
cases. He is a consensus builder. He is a guy who figures out how to 
come to a decision people agree with on different sides of the aisle, 
and from different points of view. That is what his record his. 
Actually, that doesn't surprise me at all, because he clerked in the 
Supreme Court for two Justices. One was Byron White and the other was 
Justice Anthony Kennedy. Those are two Justices who get a lot of heat. 
Byron White did, and Anthony Kennedy does--from both sides. Why? 
Because they tend to be in the middle. They write a lot of decisions 
that are consensus decisions. They tend to be that fifth vote on a 5-
to-4 decision. That is whom he clerked for.
  To note that somehow this guy shouldn't be confirmed for the Supreme 
Court because of one or two decisions just doesn't seem to be 
legitimate to me. This is a guy who had thousands of decisions, and the 
vast majority were 98 percent or 97 percent unanimous. He had one 
decision that was appealed to the Supreme Court because the litigants 
must have thought he was wrong. They took it to the Supreme Court to 
correct him. What happened? The Supreme Court affirmed it. They agreed 
with Judge Gorsuch.
  I don't know whom you could find out there among judges who has a 
stronger record. In every case, somebody wins and somebody loses. I get 
that. Think about this: Out of Judge Gorsuch's 180 written opinions, 
only one has ever been appealed to the Supreme Court--wow. And they 
agreed with his ruling.
  He made it clear he makes decisions not based on the outcome he 
likes, but based on what the law says. He thinks his job on the court 
for the last decade--and going forward--is to actually look at the law 
and decide what the law says and what the Constitution provides, not 
what he wants.
  I think that is the kind of judge we would want--particularly those 
of us who are lawmakers, right? We are the ones writing the laws. We 
would hope that would be respected and that judges wouldn't try to 
legislate. This is what he said in his testimony:

       A judge who likes every outcome he reaches is very likely a 
     bad judge . . . I have watched my colleagues spend long days 
     worrying over cases. Sometimes the answers we reach aren't 
     ones we would personally prefer. Sometimes the answers follow 
     us home and keep us up at night. But the answers we reach are 
     always the ones we believe the law requires.

  Interesting perspective. He is saying: Hey, if you like all your 
decisions, you are probably not a very good judge because your personal 
beliefs aren't always going to be consistent with what the law says or 
the Constitution says.
  He goes on to say:

       I've ruled for disabled students, for prisoners, for the 
     accused, for workers alleging civil rights violations, and 
     for undocumented immigrants. Sometimes, too, I've ruled 
     against such persons. My decisions have never reflected a 
     judgment about the people before me, only a judgment of the 
     law and the facts at issue in each particular case.

  Again, it seems to me that is the kind of person you want on the 
court. Making a decision as a judge is not about ruling in favor or 
against somebody because you like them or don't like them. It is about 
applying what the law says. As he said in his testimony recently, his 
philosophy is ``to strive to understand what the words on the page mean 
. . . [to] apply what the people's representatives, the lawmakers, have 
done.'' That is us. That is the House. That is people who are elected 
back home by the people who expect us to be the elected representatives 
and to listen to their concerns and then vote. Those laws should not be 
rewritten by the judiciary. That is the approach he takes. I would 
think any legislator would want to ensure the laws we pass are applied 
as written. Much more importantly, that is what people want too. That 
is what people should insist on. We want our votes to count. We want 
our voices to be heard.

  President Lincoln warned in his first inaugural address that if 
judges legislate from the bench, ``the people will have ceased to be 
their own rulers.''
  ``The people will have ceased to be their own rulers'' if judges 
legislate from the bench.
  I think President Lincoln was right. When judges become legislators, 
the people do have less of a voice. Judge Gorsuch himself summed it up. 
He said: ``If judges were just secret legislators, declaring not what 
the law is but what they would like it to be, the very idea of 
government by the people and for the people would be at risk.'' I think 
that is the deeper issue here.
  Again, I think he is the kind of judge we should want. Judge Gorsuch 
and I had the chance to sit down and talk about this philosophy. We 
talked about his background and his qualifications. I asked him some 
very tough questions, as he got asked during the Judiciary Committee 
nomination process. His hearings were something that all Americans had 
the opportunity to watch. He did a great job, in my view, because he 
did focus on how he believes that his job is not to allow his personal 
beliefs to guide him but, rather, upholding the law as written and the 
Constitution.

[[Page S2417]]

  I think that approach is a big reason he has earned the respect of 
lawyers and judges from across the spectrum, by the way. If you look at 
the people who say this guy is a great judge, it goes all the way 
across the political spectrum.
  Professor Laurence Tribe of Harvard Law School, an advisor to former 
President Obama, said Judge Gorsuch is ``a brilliant, terrific guy who 
would do the Court's work with distinction.'' Those of you who know 
Laurence Tribe, he is well-regarded, considered to be a liberal thinker 
on many issues. But he has looked at the guy, and he has looked at his 
record. He knows him. He says he is brilliant, terrific, and will do 
the Court's work with distinction.
  Neal Katyal--you have heard about him. He was the Acting Solicitor 
General for President Obama, a guy who knows a thing or two about 
arguing before the Supreme Court. He said Judge Gorsuch's record 
``should give the American people confidence that he will not 
compromise principle to favor the President who appointed him. . . . 
He's a fair and decent man.''
  This goes to what the ABA said about him: Independent. He will 
protect the independence of the judiciary.
  Look, he is smart, no question about it. You saw him answer those 
questions. You have seen his record. He is qualified, as we talked 
about. He is certainly a mainstream judge, when you look at his 
opinions--98 percent of the time in the majority, 97 percent of the 
time unanimous. Three-judge panels. He has the support--the bipartisan 
support--of a majority of the Senate.
  By the way, the American people, as they have plugged into this, also 
think he ought to be confirmed. There is a recent poll by the 
Huffington Post, which is not considered a conservative newspaper or 
entity. They said the people want us to confirm Neil Gorsuch by a 17-
point margin. Why? Because they watched this. They looked at the guy. 
They saw the hearings. They looked at his record. People believe he is 
the right person to represent them on the Supreme Court.
  So, again, while I am disappointed this process has become so 
polarized and divisive here in this body, I am glad to see this good 
man take a seat in our Nation's highest Court. I believe he deserves 
our support.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.

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