[Congressional Record Volume 163, Number 61 (Friday, April 7, 2017)]
[Senate]
[Pages S2440-S2443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                 Syria

  Mr. CORNYN. Madam President, I would like to start briefly by 
mentioning the horrific chemical attack on innocent civilians in Syria 
earlier this week. It was nothing short of evil. I stand shoulder to 
shoulder with the administration in condemning this brutality. Again, 
we see Bashar al-Assad crossing a line--a line drawn and then ignored 
by the Obama administration.
  The United States and the world community simply can't stand idly 
while Syria continues crimes against humanity, again, under Russian 
protection. That is why last night the administration responded quickly 
and proportionally. I commend the President and his national security 
team for acting decisively and sending a clear message to Assad and our 
allies. I am sure it was a message that was not missed by the leaders 
of the Iranian Government, the Russian Federation, and North Korea.
  I agree with Ambassador Haley that Russia's obstructionism at the 
U.N. has enabled Assad and prevented international action, resulting in 
at least 400,000 Syrians dead in this civil war and millions of others 
displaced as refugees, not only internally but externally as well. 
Going forward, I stand ready to work with the President and his 
administration on a unified strategy to defeat Assad's barbarism and 
work toward greater stability in Syria and throughout the region.
  Madam President, on another subject, as we all know, here in about 20 
minutes, we will start the vote to confirm Neil Gorsuch as the next 
Justice of the Supreme Court. Over the last few weeks, our colleagues 
and I have--and the entire country, as a matter of fact--have gotten to 
know Judge Neil Gorsuch not only as a judge but as a man. He is a good 
man with superb qualifications and incredible integrity.
  A Colorado native, Judge Gorsuch has served on the Denver-based Tenth 
Circuit Court of Appeals for about 10 years. He is known for his sharp 
intellect, his brilliant writing, and his faithful interpretation of 
the Constitution and laws passed by Congress. He is, in short, a 
distinguished jurist with an impeccable legal and academic record.
  In addition to his decade on the bench, his professional experience 
includes years practicing in a private law firm, prestigious 
clerkships, including the Supreme Court of the United States under two 
separate Justices, and service in the Department of Justice.
  It is simply undeniable that Judge Gorsuch is a qualified, high-
caliber nominee. I have no doubt that he will serve our Nation well on 
the Supreme Court. But of course, in spite of all of this--his sterling 
background, his proven character, his broad bipartisan support--we have 
seen an unprecedented attack on this good judge and this good man in 
the form of a partisan political filibuster, the first ever lodged 
against a Supreme Court nominee. Yesterday, our Democratic colleagues 
would have prevented the up-or-down vote we are getting ready to have 
here starting at 11:30. For what? Well, it certainly was not because of 
the judge, his character, his qualifications, or his background and 
experience; it was merely because so many of our colleagues across the 
aisle simply have not gotten over the fact that Donald Trump won the 
Presidential election and Hillary Clinton did not.
  Before Judge Gorsuch was nominated, the minority leader, our 
colleague Senator Schumer, said they needed a ``mainstream nominee.'' 
After President Trump nominated a mainstream nominee, Democrats then 
looked for other ways to make him out to be some sort of extremist or 
radical. But they failed because there is simply no evidence to justify 
those kinds of characterizations.
  For one, judicial experts spanning the political spectrum, including 
President Obama's former Solicitor General, voiced their support.
  Second, they had to deal with the facts of his record. During his 
time on the Tenth Circuit, Judge Gorsuch was

[[Page S2441]]

involved in thousands of decisions--2,700 to be exact. The vast 
majority of those panel decisions made by at least three judges--
sometimes more on the panel--97 percent of them were unanimous. So you 
would basically have to slander the reputations of all of those other 
judges with whom the judge agreed to claim that he is some sort of out-
of-the-mainstream extremist. That is truly an impressive record for a 
judge in a multi-judge court like the Denver-based Tenth Circuit Court 
of Appeals. It simply rebuts any picture our friends across the aisle 
have attempted to paint of him as some kind of extremist or radical.
  I would ask our friends this question: If Judge Gorsuch does not fit 
the bill for a qualified, mainstream nominee, then is there any nominee 
from this President or any other Republican President who will meet the 
Democrat's arbitrary, flimsy standard?
  Time and time again, our friends across the aisle failed to make any 
intellectually honest argument against this nominee. Still, they are 
determined to block him. That brought us to the cloture vote yesterday 
and the last-ditch effort to block Judge Gorsuch. They did not want to 
even give him the up-or-down vote we are getting ready to have here in 
a few minutes. Instead, they wanted to kill his nomination by simply 
refusing an up-or-down vote and moving his nomination forward.
  In our Nation's entire history, before yesterday there had only been 
four cloture votes for Supreme Court nominees--only four. None of them 
had been cast as a partisan filibuster determined to try to block the 
nomination--until yesterday.
  Still, the minority leader, cheered on by the extreme groups on the 
left, barreled this Chamber to the first-ever partisan filibuster of a 
Supreme Court nominee, following a regrettable and recent tradition of 
Democratic obstructionism when it came to Republican judicial nominees.
  Now that there is a Republican White House, that is what they want to 
do again--obstruct. This is a wholly concocted method the Democrats 
started back when George W. Bush was President to deny a Republican 
President an opportunity to nominate the person of his choice, 
confirmed by a majority vote in the Senate.
  Before 2000, before Senator Schumer and a number of liberal legal 
activists decided they wanted to raise the threshold for confirmation 
to 60 votes, instead of what the Constitution requires, which is a 
majority vote. No one would ever have dreamed that the Constitution 
would have allowed for a 60-vote requirement, rather than an up-or-down 
vote.
  It is not that our friends across the aisle truly oppose Judge 
Gorsuch. The fact is, they oppose President Trump. That is what this is 
all about.
  This vote isn't actually about President Trump. It is about the man 
we have all learned so much about, Judge Neil Gorsuch, who has a record 
of faithfully interpreting the law, a man who has proved himself to 
possess an independent judicial mind, who simply follows the law 
wherever it may lead. He is someone who has won bipartisan approval.
  This vote is about delivering our promise. The Republicans have 
promised to let the American people's voice be heard in deciding who 
they would choose as President to select the next Supreme Court 
Justice. The American people did that. They chose President Trump, and 
he chose Judge Gorsuch.
  If Hillary Clinton had been elected President today, I have no doubt 
that her choice for the Supreme Court would be confirmed by a majority 
vote in the same U.S. Senate.
  Now it is time that we deliver on the promise we made to the American 
people and confirm Judge Neil Gorsuch to the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I hadn't planned to speak this morning, 
but when my friend from Texas decided to give his version of history, I 
thought: Well, I ought to give my version. It is slightly different.
  Justice Antonin Scalia passed away in February of last year. 
President Barack Obama, the President of the United States of America, 
had a constitutional responsibility under article II, section 2 to 
nominate a person to fill the vacancy on the Supreme Court, as every 
other President had. And he did.
  He came up with the name Merrick Garland, the Chief Judge on the DC 
Circuit Court of Appeals, a man who is widely respected, judged 
unanimously ``well qualified'' by the American Bar Association. 
President Obama submitted his name to this Congress, to the Senate, a 
Senate that has a Republican majority, led by Senator Mitch McConnell 
of Kentucky.
  Senator McConnell and the Republican Senators did something that had 
never happened in the history of this Chamber--not once. They denied 
President Obama's nominee the opportunity for a hearing and a vote. In 
fact, Senator McConnell went further and said: I won't even meet with 
the man.
  It had never happened before.
  You say to yourself: Well, come on. This isn't beanbag. You are in 
Washington. This is major league politics. This sort of thing must 
happen all the time. Never.
  In fact, if you go back not that far in history, to 1988, in the last 
year of President Ronald Reagan's Presidency--his fourth year of his 
second term, some call it the lameduck year--there was a vacancy on the 
Supreme Court.
  Republican President Ronald Reagan sent the name Anthony Kennedy to a 
Democratically controlled Senate, which had the power to do the same 
thing Senator McConnell did: Deny a hearing, deny a vote.
  Well, what did the Democrats do? We gave Justice Kennedy a hearing, a 
vote, and sent him to fill the vacancy on the Supreme Court.
  Under Senator McConnell, the Republicans refused Merrick Garland the 
same opportunity, and they said to President Obama: You are in your 
fourth year. You are a lameduck. Your choice for the Supreme Court 
really doesn't count.
  But there was more to it. Really, the strategy was based on the 
premise and possibility that a Republican would be elected in this last 
November election, and if so, that Republican President could fill the 
vacancy on the Supreme Court.
  Well, that is exactly what happened. The election of Donald Trump 
gave him the opportunity to fill the vacancy of Antonin Scalia, a 
vacancy that should have been filled, I believe, by Merrick Garland, 
President Obama's nominee.
  That is what led up to the vote yesterday, but there was more.
  Where did the name Neil Gorsuch come from? It is true that he served 
on the Tenth Circuit for 10 years. He had been approved by the Senate. 
He certainly had a strong resume. But how did he get on the finalist 
list?
  Well, most of the time you never know. Presidents don't always 
disclose how they come up with names. In this case, it was very open 
because, during the course of his campaign, Donald Trump, the 
candidate, listed 21 names of people whom he would appoint to the U.S. 
Supreme Court. On that list of names, Neil Gorsuch of Colorado.
  How did that name make the list? Well, we know because President 
Trump told us. He was the choice of the Federalist Society and the 
Heritage Foundation. If you know these two organizations, you know they 
are Republican advocacy groups, very conservative groups, and they were 
going to pick the nominees who were approved by them and submit them to 
Donald Trump, which he then publicized. We know that because, at the 
end of the day, Donald Trump thanked the Federalist Society for 
nominating Judge Gorsuch. That is how the name came to us.
  I sat through the hearings as a member of the Senate Judiciary 
Committee, and I will tell you that most Supreme Court nominees don't 
go out of their way to volunteer information. They try to be 
respectful, but they don't try to say much of anything. They don't want 
to get in trouble either as judges or as candidates to be a Justice on 
the U.S. Supreme Court. So there were gaps in his testimony and 
troubling questions raised about him.
  I don't want to dwell on him so much as I want to dwell on this 
process. What happened yesterday on the floor of the Senate was 
unfortunate. Since I have been in the Senate, the last four Justices on 
the Supreme Court--two

[[Page S2442]]

nominated by President Obama, Sonia Sotomayor and Elena Kagan, and two 
nominated by George W. Bush, John Roberts as well as Justice Alito--all 
received 60 votes during the course of their consideration. That is 
not, as the Senator from Texas alluded, written in the law per se, but 
it was written--until yesterday--in the rules of the Senate. You needed 
60 votes to overcome the possibility of a filibuster and to file 
cloture.
  Well, that rule was changed yesterday to a simple majority. That is 
an unfortunate occurrence. A lifetime appointment to the highest Court 
in the land should be more than just a bare majority vote, as far as I 
am concerned, and, historically, with very few exceptions, that has 
been the case.
  That is not the case here. We found yesterday that the Republicans 
voted for a change in rules, which was under the power of the majority 
to do--a change in the rules, which lowered the standard for this judge 
for the first time officially in at least a century to a mere majority 
vote. That is what he received, and that is what brings his nomination 
to the floor today to be considered for the Supreme Court.
  At the end of yesterday's session, when the rule was changed, some 
Senators were engaged in high fives on the other side of the aisle. I 
am not sure why. I don't think it was a time for any winning 
celebration. I think it was an unfortunate moment.
  The question is, Where will we go from here? We know what the outcome 
of the vote will be on Judge Gorsuch this afternoon. That is 
preordained by the rule struggles we went through yesterday. But where 
does the Senate go? Where should we go? Well, I hope we will have the 
good sense to restore the 60-vote margin when it comes to future 
Supreme Court nominees.
  It may be that Justice Gorsuch has an asterisk by his name as the 
only one to have been officially approved with cloture set at a 
majority vote, but I am hoping, even if he reaches the Supreme Court, 
that will not hold him back from serving this Nation well. I know he 
has told us over and over again that is exactly what he wants to do.
  But I hope the Senate will restore the standard of 60 votes necessary 
for the Supreme Court. I really believe serving as a Supreme Court 
Justice is an extraordinary opportunity for a person to serve this 
Nation, an extraordinary responsibility, and we should take it very 
seriously. It shouldn't be a majority decision; it should be a 60-vote 
decision. I hope we get back to that very soon.
  Secondly, I hope the Senate will not be derailed by this Supreme 
Court nomination having happened so early in the session. This is a 
great institution. I have given a big part of my life to it and look 
forward to serving more in the Senate--not as long as the Senator from 
Iowa, who I think has retired the trophy in his State for his service 
in the Senate--but I do believe this is a great institution.
  An example is that the Senator from Iowa and I are of opposite 
political faiths. He and I have worked together on some important 
issues in the past, and we want to work together in the future. I think 
we can. If we can restore what you and I remember as the glory days of 
this body, it is in the best interest of this Nation.
  So beyond this Supreme Court nomination, let's hope we can all come 
together to make that happen.
  I see my colleagues filing in. I know they are anxious to vote. I am 
not going to hold the Chamber. I am just going to say that I thank the 
Presiding Officer and my friend, the chairman of the Senate Judiciary 
Committee. I look forward to the vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, we are about to vote on the nomination 
of Judge Gorsuch, so I would like to say to my colleagues why I am so 
pleased that we will soon be referring to him as ``Justice Gorsuch.''
  I opened our Judiciary Committee hearing with this:

       One of Justice Scalia's best opinions begins with this 
     declaration: it is the ``proud boast of our democracy that we 
     have a government of laws and not of men. . . . Without a 
     secure structure of separated powers, our Bill of Rights 
     would be worthless.''

  The separation of powers in our Constitution is a guardian of our 
liberty. Judge Gorsuch understands that. His deep understanding of the 
separation of powers enlivens his opinions.
  By faithfully enforcing the boundaries among the branches of 
government and the power of the Federal Government in our lives, this 
Justice will ensure that the law protects our liberties.
  Here is the other thing that is important about a judge who respects 
the separation of powers: We know he will be independent. He told us 
that he is his own man, that no person speaks for him. He is not 
beholden to the President who appointed him. His testimony shows that 
he is not beholden to us in the Congress either. He wouldn't compromise 
his independence to win confirmation votes. He passed the test.
  This is a man of integrity, and his qualifications for the bench are 
exceptional. You know the story: bachelor's from Columbia University, 
Harvard Law School, doctorate from Oxford University, partnership at a 
prestigious law firm, and high-level Justice Department service for the 
people of our country, but most importantly, a decade-long record of 
faithfully applying the law on the Federal bench in 2,700 cases as a 
member of the Tenth Circuit Court of Appeals.
  Let me sum up this way: This brilliant, honest, humble man is a 
judge's judge, and he will make a superb Justice.
  I yield the floor.
  Madam President, 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. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The VICE PRESIDENT. Without objection, it is so ordered.
  Mr. DURBIN. I yield back the remainder of our time.
  I withhold that request until the arrival of the leader.
  I suggest the absence of a quorum.
  The VICE PRESIDENT. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The VICE PRESIDENT. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I yield back the remainder of time on this 
side.
  The VICE PRESIDENT. Without objection, all time is yielded back.
  The question is, Will the Senate advise and consent to the Gorsuch 
nomination?
  Mr. McCONNELL. I ask for the yeas and nays.
  The VICE PRESIDENT. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Georgia (Mr. Isakson).
  Further, if present and voting, the Senator from Georgia (Mr. 
Isakson) would have voted ``yea.''
  The VICE PRESIDENT. As a reminder, expressions of approval or 
disapproval are not permitted from the gallery.
  Are there any other Senators in the Chamber desiring to vote or 
change their vote?
  The result was announced--yeas 54, nays 45, as follows:

                      [Rollcall Vote No. 111 Ex.]

                                YEAS--54

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Manchin
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--45

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Kaine
     King
     Klobuchar
     Leahy

[[Page S2443]]


     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     Isakson
       
  The nomination was confirmed.
  The VICE PRESIDENT. The majority leader.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I 
move to table the motion to reconsider.
  The VICE PRESIDENT. The question is on agreeing to the motion.
  The motion was agreed to.

                          ____________________