[Congressional Record Volume 163, Number 61 (Friday, April 7, 2017)]
[Senate]
[Pages S2436-S2439]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                 Syria

  Finally, Madam President, on Syria, I salute the professionalism and 
skill of our Armed Forces that took action last night. The people of 
Syria have suffered untold horrors and violence at the hands of Bashar 
al-Assad and his supporters in Tehran and in Putin's Russia. Making 
sure Assad knows when he commits such despicable atrocities he will pay 
a price is the right thing to do. However, it is now incumbent on the 
Trump administration to come up with a coherent strategy and consult 
with Congress before implementing it.
  Madam President, 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. BLUNT. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. Madam President, I want to talk about what we are doing 
today and how important it is, how unique it is in the history of the 
country. Since 1789, 112 people have served on the Supreme Court. It is 
hard not to be reminded today, as we vote for the replacement for 
Justice Scalia, that he served on the Court for 26 years after Ronald 
Reagan, who appointed him, left the White House and 13 years after 
President Reagan died. Clearly, the impact of a Supreme Court 
nomination by the President and confirmation by the Senate is one of 
those things that has the potential to last long beyond either the 
service of those in the Senate at the time or beyond those of the 
President at the time. It is a significant decision.
  A Federal Court appointment, generally an appointment for life, is 
different than an appointment for someone who serves during the tenure 
of the President. I think almost all of us look at judicial 
appointments differently than we look at Cabinet appointments and other 
appointments that are concurrent with the President's term. This is an 
appointment that lasts as long as the judge is willing to serve and 
able to serve.
  At 49 years old, Judge Gorsuch, who has already been a judge for 10 
years, should know whether he likes being a judge. It would appear, and 
we would hope, he will have a long and healthy life to use his skills 
on the Court. I think those skills are very obvious in the over 2,000 
decisions he has been part of, of the 800 decisions he has written as a 
circuit judge, the appeals judge above other Federal judges and right 
below the Supreme Court.

[[Page S2437]]

  So he is someone who comes to this job understanding the job, with a 
significant body of work that the Senate has had plenty of time to look 
at and the President had time to look at before this nomination was 
made. In those 800 opinions Judge Gorsuch has written, he has been 
overturned by the Court he will now sit on, the U.S. Supreme Court, 
exactly 1 time. That is an incredible average of decisionmaking if 1 of 
800 times is the only time a court that is the court of appeals for 
you, the Supreme Court in this case, decides that your decision did not 
meet their view. Now, that does not mean that your decision did not 
meet your view of the law, if you are Judge Gorsuch, or your view of 
the Constitution. Of course, both of those things, after today--his 
view of the law, his view of how you apply the law--will go to the 
Court with him.

  At the White House event where his nomination was announced, Judge 
Gorsuch said that a good judge is not always happy with his opinions. 
Now, what would that mean? I thought that was very reassuring in the 
sense that his job as a judge is to read the law, to look at the 
Constitution, and to determine how the facts of the case meet the 
reality of the law.
  One of the things that makes this a great country to live in, a great 
country to work in, and a great country to take a chance in is the one 
thing you can rely on, hopefully--the rule of law. The one thing you 
can rely on, when good lawyers read the law, is that they all 
understand it to mean the same thing, and you move forward with 
whatever decision you make on that. What Judge Gorsuch was saying was 
that personal opinions are not always satisfied by reading the law. 
What he also, I think, reflects is a view that the law is what the law 
was intended to mean at the time.
  There are ways to change the law. If the country has changed, if the 
world has changed, if circumstances have changed, there are ways to 
change the law, and that is our job. That is not the job of any Federal 
judges anywhere, including on the Supreme Court. Their job is to 
determine what the law was intended to mean when it was written, and 
their job is to determine what the Constitution was intended to mean 
when it was written. Everything the Constitution intended was not what 
we would want to live with today, and that is why we have that long 
list of amendments, starting with the Bill of Rights.
  Even immediately, the people who wrote the Constitution said that we 
have to add some things to this because this does not mean what we 
really want it to mean as it is applied. So you get the Bill of Rights. 
Yet that is not the job of the Court. It is the job of the Congress to 
pass laws, the President to do his job of vetoing and sending those 
laws back or of signing them into law. The Court's job is what Judge 
Gorsuch understands it to be.
  He said in his hearings: I have one client, and that client is the 
law. That client is not either party appearing before the Court. That 
client is not the government. That client is the law. I think he also 
said that judges are not politicians in robes.
  We have a job to do that is different than the job of the Court, and 
I think, as we send Judge Gorsuch to the Court today--to be the 113th 
person in the history of the country to serve on the Court--we send a 
person who has an understanding of what a judge should do. Most 
Americans, when they think about what the Court is supposed to do, 
would clearly understand that is the job of the Court. There are other 
jobs to be done, and they are to be done in other places. I think he 
will be a great addition to the Court with his 10 years of experience 
as a judge and as the judge that other Federal judges' cases are 
appealed to. What great training he has had to get ready for the Court.
  Then, of course, to get this job done, we had to return to the 
traditional standard that has always been the standard in the country, 
until the last few years, as to how Presidential nominations are dealt 
with. It is easy to confuse, I think, the unique role of the Senate in 
its having some barriers that the House does not have with regard to 
advancing legislation. Since, basically, 1789, that has been applied to 
legislation. The Senate has always seen its job as wanting to be sure 
the minority is heard before we move forward. Yet, starting in 1789, 
there was never a supermajority for Presidential nominations, whether 
it was to the Cabinet or the Court.
  It is impossible to find, even before 1968, any case in which the 
Senate came together and said: We are officially going to decide that 
we are not going to have a vote on this judge. Now, not every judge got 
a vote, but when every judge got a vote, a majority of Senators 
determined whether that judge would go on the Court or not. Two members 
of the Court today did not get 60 votes. Clarence Thomas got 52 votes, 
and I think Judge Alito got 58 votes. Two members did not get 60 votes, 
but nobody thought they needed 60 votes because that had never been 
part of the structure of how judges got on the Court.
  I think what we have done this week is return the Senate to, 
essentially, the practice on Presidential nominees that for 214 years 
was the way nominees were always dealt with.
  In 2013, the Senate was controlled by our friends on the other side 
of the aisle. With the roughly 1,250 to 1,300 Presidential nominations, 
they decided that every nomination that was available to them--for 
every judge where there was a vacancy, for every person where the 
President might have had a vacancy to fill--would be determined by a 
simple majority. From that moment on, everybody, I think, should not 
have been surprised, when we eventually had a Supreme Court vacancy--
and this is the first one since that happened--that whoever was in 
charge would extend that same majority to the Supreme Court. Now all 
Presidential nominees are back to where they had been for 214 years.
  I heard the minority leader--I heard my friend Mr. Schumer--talk 
about the importance of our recommitting ourselves to the protections 
for the minority in passing legislation. I think we can do that. 
Frankly, this exercise of refreshing our minds as to how legislation 
has always been handled in that way, I believe, has probably created a 
greater commitment to that--to the legislative supermajority to move 
forward with debate--than we have had for a while.
  I think the leader of our friends on the other side and certainly the 
leader on our side have both said nobody is willing to back down on the 
challenges the Senate faces when we are required to come together to 
get things done.
  The Senate is unique. Essentially, it takes 6 years for every Senator 
to run for election. After some new sense of the direction of the 
country occurs, voters basically have to say again and again and maybe 
a third time: No, we really want to change the way the country has run 
up until now. Quick decisions are not necessarily the best decisions in 
a democracy, and in our democracy, this institution--the Senate--is the 
legislative institution that determines that there is a necessary 
either coming together of the people who are here at the time or for 
voters to say at another time: No, you did not get it the first time, 
and we are sending different people because we really want to make this 
change.
  I think the vote today and the traditions of the country send that 
113th person into the history of America to serve a lifetime term on 
the Court. I am confident the President's nominee and the Senate's 
decision to send that nominee to the Court sends a good person to the 
Court with a good understanding of what the Supreme Court of the United 
States is supposed to be. His job is not to look at the law and try to 
determine what it should have said or to look at the Constitution and 
determine what it should have said but rather to look at the law and 
the Constitution and determine what they say.
  Judge Gorsuch, as well as any person who has ever appeared before the 
Senate to stand available for that job, understands that principle, 
will take that principle to the Court, will work with his colleagues, 
as he has on the Tenth Circuit, in order to rally around what the law 
says and what people can rely on in a country where our freedoms should 
be secure and where we should know that the courts are there to 
determine what is right in any given case, not what the judges think 
would be their ideas of what would be right.
  I look forward to the vote later this morning and to seeing Judge 
Gorsuch be sworn in as a member of the Court sometime in the very near 
future.

[[Page S2438]]

  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. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I rise today in support of the 
nomination and the confirmation of Judge Neil Gorsuch to the U.S. 
Supreme Court. I do so with mixed emotions because I believe that the 
actions taken in order to achieve this position will have lasting 
effects that are unfortunate on this body as far as comity is 
concerned, but also the confirmation of future judges of the Supreme 
Court by 51 votes. Rather than go back through the history of what 
former Majority Leader Reid did in regard to judges and what we are 
doing now, I am very concerned about the future which will then, with 
only a 51-vote majority required, lead to polarization of the nominees 
as far as their philosophies are concerned when the majority does not 
have to consider the concerns and the votes of the minority.
  With my focus on Democrats' unprecedented filibuster of Judge 
Gorsuch's nomination to the U.S. Supreme Court and the Senate's 
regrettable action yesterday to invoke the nuclear option on Supreme 
Court nominees, I have been remiss in not taking the time to describe 
for the American people why I support strongly and without 
qualification confirming Judge Gorsuch to serve as an Associate Justice 
of the U.S. Supreme Court.
  Why I do so is very simple. Rarely has this body seen a nominee to 
the Supreme Court so well qualified, so skilled, with such command of 
constitutional jurisprudence, with such an established record of 
independence and such judicial temperament as Judge Gorsuch. It is, in 
fact, exactly for these very reasons that this very body unanimously 
voted in 2006 to confirm this very judge--this same judge--to the U.S. 
Court of Appeals for the Tenth Circuit. Yet, now, the other side would 
have the American people believe that this very same judge lies firmly 
outside the mainstream and is, therefore, otherwise unacceptable to 
serve in the Nation's highest Court. Even by the standards of this 
body, this sophistry is breathtaking.
  Let me take a moment to join the chorus of support of my colleagues 
and recount why Judge Gorsuch is so deserving of this body's support 
for confirmation to the Supreme Court.
  First and foremost, Judge Gorsuch is a world-class judge. On the U.S. 
Appellate Court for the Tenth Circuit, Judge Gorsuch has maintained the 
lowest rating of other judges dissenting from his opinion. Indeed, 
according to the Congressional Research Service, only 1.5 percent of 
Judge Gorsuch's majority opinions were accompanied by a dissent--the 
lowest of any judge in that study. Notably, the U.S. Supreme Court has 
never overruled any of Judge Gorsuch's opinions--not a single one. 
Furthermore, in the more than 2,700 cases Judge Gorsuch participated 
in, 97 percent of them were decided unanimously, and Judge Gorsuch was 
in the majority 99 percent of the time. These are facts. In addition, 
the U.S. Supreme Court overruled an opinion where Judge Gorsuch sat on 
a panel only one time.
  While serving on that court, Judge Gorsuch built an exceptional 
reputation for his fair-minded, articulate, and sharp intellect. 
Stanford Professor Michael McConnell, who served with Judge Gorsuch on 
the Tenth Circuit, characterized Judge Gorsuch as ``an independent 
thinker, never a party liner'' and ``one of the best writers in the 
judiciary today. . . . [H]e sets forth all positions fairly and gives 
real reasons--not just conclusions--for siding with one and rejecting 
the other.''
  Second, Judge Gorsuch has one of the most impressive professional and 
academic backgrounds this body has ever seen. He graduated from 
Columbia cum laude and Phi Beta Kappa and cum laude from Harvard Law 
School. He also obtained a doctorate degree in philosophy from Oxford 
University and served as a Truman and Marshall Scholar. Additionally, 
he served for U.S. Circuit Court Judge David Sentelle, Supreme Court 
Justices Byron White and Anthony Kennedy. Judge Gorsuch also served as 
Principal Deputy Assistant Attorney General at the Department of 
Justice before serving as a judge on the U.S. Court of Appeals for the 
Tenth Circuit.
  For all of these achievements, Judge Gorsuch has earned the highest 
possible rating from a group Minority Leader Schumer calls the ``gold 
standard'' for evaluating judicial nominations.
  Finally, Judge Gorsuch has established himself as an exceptional 
nominee. Indeed, Judge Gorsuch's appearance before the Senate Judiciary 
Committee was extraordinary. In the course of the three rounds of 
questioning by that committee, each Member had the opportunity to quiz 
Judge Gorsuch for over an hour each on just about every aspect of 
constitutional law. In answering about 1,200 questions from the panel, 
he demonstrated almost peerless mastery over that field.
  Furthermore, Judge Gorsuch's nomination, with the help of my friend 
and former member of this body Kelly Ayotte, was exemplary in its 
transparency. Before his hearing, and in response to the Judiciary 
Committee's requests, Judge Gorsuch provided over 70 pages of written 
answers about his personal record and over 75,000 pages of documents, 
including speeches, case briefs, and opinions--which, by the way, makes 
you wonder why he wanted the job. Anyway, White House archives and the 
Department of Justice similarly produced over 180,000 pages of 
documents related to Judge Gorsuch's time at the DOJ. The Department of 
Justice, moreover, provided access to reams of documents that would 
ordinarily be subject to claims of privilege. However, in the spirit of 
cooperation and in the hope of truly bipartisan consideration, the 
Department of Justice provided my friends on the other side access to 
these records anyway.
  Additionally, in response to almost 300 separate questions posed by 
Democrats on the committee, Judge Gorsuch provided another 70 pages of 
written responses, and did so within a week of receiving them, to give 
my friends sufficient time to review the answers before the committee 
voted for consideration of his nomination.
  Despite all of that I just said--despite everything that I just said, 
my friends on the other side would have the American people believe 
that Judge Gorsuch lies firmly out of the mainstream and hopelessly 
obfuscated his judicial philosophy.
  My friends, when you do that with an individual that qualified, you 
lose credibility.
  For all of the reasons I just went through, that is simply untrue. 
Moreover, when many of my friends on the other side had the opportunity 
to question Judge Gorsuch over the 20 hours they had with him during 
his confirmation hearing, they contented themselves with asking Judge 
Gorsuch for his personal opinions on issues that could come before him 
if he is confirmed to the Court. In addition, they passed hypotheticals 
they knew he, for ethical and prudential reasons, could not possibly be 
expected to answer.
  Here is some straight talk. The real reason most of my friends on the 
other side opposed Judge Gorsuch's confirmation is that President Trump 
nominated him--because their base of support and related special 
interests on the far left have been upset about President Trump's 
election in November. The fact is that if most of my friends on the 
other side of the aisle are opposed to this nominee, they will oppose 
any nominee put forward by this President, or any Republican President, 
for that matter.
  The record is clear. Judge Gorsuch's qualifications, knowledge, 
skill, judicial temperament, and record of independence are truly 
exceptional. For these reasons, he has earned my strong and unqualified 
support for his confirmation to the Nation's highest Court.
  Could I just make one additional comment, and I know my friend from 
Utah is waiting. When President Obama and Presidents before him were 
elected from both parties, it was pretty much the standard procedure 
here in the U.S. Senate to give the incoming President the benefit of 
the doubt. In other words, the American people, by electing a President 
of the United States, had also basically endorsed his responsibility 
and his right to nominate judges to the courts. That is just

[[Page S2439]]

sort of a given, because the American people spoke in their selection 
of the President of the United States, taking into consideration those 
responsibilities the President would have. So, therefore, for those 
reasons, I voted for most of President Obama's nominees, as I did most 
of President Clinton's nominees. Now we are in a position where we are 
so polarized that even a man of the qualifications of Judge Gorsuch is 
now opposed by our friends on the other side of the aisle.

  I say to my friends on the other side of the aisle, and I say to my 
friends on this side of the aisle: That is not the way the Senate was 
designed to work. The Senate was designed for us to communicate, for us 
to work together, for us to understand the results and repercussions of 
a free and fair election. It is about time we sat down together and 
tried to do some things for the American people in a bipartisan 
fashion. This near-hysterical opposition that I see from my friends on 
the other side of the aisle does not bode well for what we know we need 
to do.
  Madam President, I recognize the presence of the distinguished 
Senator from Utah, and I say ``distinguished'' because both he and I 
are of advanced age.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I really appreciate my colleague for his 
comments. He is one of the great Senators here, and we all pay 
attention to what he has to say, especially on foreign policy and 
military affairs, but also on so many other things as well. People 
ought to be listening to what he is saying with regard to this 
judgeship. I have great respect for Senator McCain and always will. He 
is one of the truly great Senators in this body. I just wish my 
colleagues on the other side would pay a little more attention to what 
he is having to say here today. So I thank the Senator.