[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 4910-4923]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   PROTOCOL TO THE NORTH ATLANTIC TREATY OF 1949 ON THE ACCESSION OF 
                               MONTENEGRO

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of Executive 
Calendar No. 1, the Montenegro treaty, which the clerk will state.
  The senior assistant legislative clerk read as follows:

       Treaty document No. 114-12, Protocol to the North Atlantic 
     Treaty of 1949 on the Accession of Montenegro.

  Pending:

       McConnell amendment No. 193, to change the enactment date.
       McConnell amendment No. 194 (to amendment No. 193), of a 
     perfecting nature.

  The PRESIDING OFFICER. The majority whip.


                         The President's Budget

  Mr. CORNYN. Mr. President, I came to the floor to talk about the 
nomination of Judge Gorsuch to serve as the next Supreme Court Justice, 
and I happened to walk in while the Democratic leader was speaking. In 
the brief time I heard him comment this morning, I concluded that 
basically the Democrats are against everything. They are against 
everything. He knows as well as anybody that when the President sends 
over a budget, it is a proposal by the President that Congress 
routinely changes, arriving at its own budget priorities, working with 
the White House.


                       Nomination of Neil Gorsuch

  Mr. President, before I get too distracted by the minority leader's 
opposition to anything and everything, let me comment a little bit on 
the Gorsuch nomination.
  We will meet next week, on April 3, to vote Judge Gorsuch's 
nomination out of the Senate Judiciary Committee, at which time his 
nomination will come to the floor. The world had a chance to see--and 
certainly all of America--during the 20 hours that Judge Gorsuch 
testified before the Judiciary Committee that he is a superb nominee. 
He is a person with a brilliant legal mind. He has an incredible 
educational resume and extensive experience both in the public sector--
working at the Department of Justice--and in private practice and then 
for the last 10 years, of course, serving as a Federal judge on the 
Tenth Circuit Court of Appeals out of Denver.
  I believe he is one of the most qualified nominees in recent history, 
to be sure, and you might have to go back into our early history to 
find somebody on par with Judge Gorsuch in terms of his qualifications 
for this important office. Unfortunately, in spite of this, we are 
seeing the minority leader threatening to filibuster this incredibly 
well-qualified judge. I hope other Democrats will exercise independence 
and do the right thing.
  I was glad to see just yesterday our colleague, the former chairman 
of the Judiciary Committee, the senior Senator from Vermont, say that 
he had a different take. He was quoted in a Vermont newspaper--perhaps 
it is a blog--it is called VTDigger.org. Senator Leahy, the former 
chairman of the Judiciary Committee, said: ``I am not inclined to 
filibuster.''
  Just for the benefit of anybody who might be listening, let me 
distinguish between the use of the filibuster as opposed to voting 
against the nominee.
  It is a fact that there has never been a successful partisan 
filibuster of a Supreme Court nominee in American history--never.
  The only time cloture was denied on a bipartisan basis of a nominee 
to the Supreme Court was in 1968, when Abe Fortas was nominated by 
then-President Lyndon Johnson. Mr. Fortas, then serving as an Associate 
Justice on the Supreme Court of the United States, had a number of 
problems, one of which was that he was still advising President Johnson 
while he was a sitting member of the U.S. Supreme Court. He was 
basically giving political advice from the bench to the President of 
the United States, with whom he had a long-established relationship.
  Then there was a suspicion that Earl Warren, the Chief Justice of the 
United States, had cut a deal with the President such that he would 
resign effective upon the qualifying of his successor. So there wasn't 
any literal vacancy to fill. The President would then nominate Abe 
Fortas, then an Associate Justice, and he would then nominate Homer 
Thornberry, then a judge on the Fifth Circuit Court of Appeals, to fill 
the Fortas Associate Justice slot. There were a couple of embarrassing 
items to Judge Fortas that caused a bipartisan denial of cloture, or 
the cutting off of debate, after which his nomination was withdrawn 
after 4 days of floor debate.
  I mention all of this because sometimes people want to lead you down 
this rabbit trail, claiming that what they are doing is something that 
is well established in our history and in this precedence of the Senate 
when that is absolutely not true. There has never been a partisan 
filibuster of a Supreme Court nominee that has been successful in 
denying that Justice to the Supreme Court's nomination to be 
confirmed--never. What Democrats are threatening to do next week when 
Judge Gorsuch's nomination comes to the floor is unprecedented. It has 
never happened before.
  I am glad to hear some voices of sanity and wisdom from people like 
Senator Leahy, who said he was not inclined to join in that filibuster. 
I also saw that our colleague from West Virginia, Senator Manchin, has 
said he will not filibuster the nominee. It is totally a separate issue 
as to whether they vote to confirm the nominee ultimately because, as 
we all know, in working here in the Senate, in order to get to that up-
or-down vote, you have to get past this cloture vote, which requires 60 
votes, and it has been traditional that we have not even had those 
cloture votes with regard to Supreme Court nominations.
  As a matter of fact, there have only been four of those in our 
history. Two of them were with regard to William Rehnquist when 
nominated as Associate Justice to the Supreme Court and then when he 
was nominated to be Chief Justice of the Supreme Court.

[[Page 4911]]

With Samuel Alito, there was cloture obtained. Ultimately, he won an 
up-or-down vote and got a majority of votes on the Senate floor. Then, 
of course, there was the Fortas nomination, which I mentioned earlier. 
In none of those four cases was there a partisan filibuster that denied 
an up-or-down vote to the nominee. Again, the only one that is a little 
of an outlier is the Fortas nomination, which was ultimately withdrawn, 
so the Senate did not have the opportunity to come back and revisit 
that initial failed cloture vote because of the ethical problems that 
led Judge Fortas to resign from the Supreme Court and return to private 
practice.
  Let me talk a minute about the excuses our Democratic colleagues have 
given in opposing Judge Gorsuch.
  First, they said they would fight a nominee who was not in the 
mainstream.
  I believe that out of the 2,700 cases Judge Gorsuch has participated 
in, 97 percent of those have been affirmed on appeal--97 percent. He 
has only been reversed in maybe one case. I believe there was a 
discussion about it. There was even an argument as to whether that was 
an outright reversal. It is very unusual, in my experience, to see a 
judge who enjoys such a tremendous record of affirmance on appeal and 
such a very low record of reversal, particularly for an intermediate 
appellate court like the Tenth Circuit Court of Appeals.
  After they realized this ``out of the mainstream'' argument wouldn't 
work, they then moved the goalpost. Some of my friends on the other 
side of the aisle have implied they might oppose Judge Gorsuch because 
of his refusal to answer questions about issues that could come before 
him on the Court. In doing so, the judge was doing exactly what is 
required by judicial ethics. In other words, how would you feel if the 
judge before whom you appeared had previously said ``If I get 
confirmed, I will never vote in favor of a litigant with this kind of 
case''? Judges do not do that. Judges are not politicians who run for 
office on a platform. In fact, judges are supposed to be the anti-
politician--ruling on the law and the facts. It is not based on a 
personal agenda or a political agenda at all, and our colleagues know 
that.
  This is the same rule that was embraced by Ruth Bader Ginsburg--
someone whom our friends across the aisle admire on the Court. Elena 
Kagan did the same thing in refusing to comment or speculate, saying 
that it would be improper for them to prejudge these cases or to 
campaign, basically, for a lifetime appointment on the Supreme Court. 
Judge Gorsuch did the same thing as Justices Ginsburg and Kagan, and he 
fulfilled his ethical obligations as a sitting judge and preserved the 
independence of the judiciary by keeping an open mind as to cases that 
come before him.
  When they failed to make the case that Judge Gorsuch was somehow out 
of the mainstream, when they failed to make the case that he somehow 
was being nonresponsive in his answering questions by the Judiciary 
Committee, the goalpost moved yet again. Last week, some suggested that 
Judge Gorsuch never ruled in favor of the ``little guy.'' This was 
following a line of arguments peddled by some outside groups who were 
trying to paint Judge Gorsuch as unsympathetic to the litigants who 
appeared in his court.
  Fortunately, Judge Gorsuch set the record straight. He made clear 
that his motivation in each and every case is to follow the law 
wherever it may lead and to reach a decision based on where the law 
stands, not on his personal opinion or emotions. Again, a good judge 
does not judge the litigants but, rather, the case at hand.
  I should point out, as I did with regard to the more than 2,700 cases 
Judge Gorsuch has decided, that virtually all of them have been 
affirmed, meaning that every judge on the panel, including those 
nominated by Democrats, reached the same conclusion that he did, and 
they were approved, or affirmed, by the higher court, certainly not 
reversed.
  I think our colleagues are making a tragic mistake by denying this 
President his nominee for the Supreme Court of the United States. If 
Judge Gorsuch is not good enough for them, they will never vote to 
confirm any nominee from this or any other Republican President of the 
United States. What would happen if that view were to prevail? I think 
we would see the Supreme Court essentially become nonfunctional and 
shut down, and litigants who were hoping to get access to a hearing 
before the Court would have nowhere to turn. It is not acceptable.
  Some of our colleagues remind me of the old story about the child who 
murders his parents and then comes before the court and asks for 
leniency, saying: I am an orphan. This is a situation of their own 
making.
  I really regretted hearing the Democratic leader talk about a case in 
which somehow there was the argument that because the judge followed 
the precedent that then existed but that a future decision in a Supreme 
Court case changed that precedent--that the judge should have 
anticipated it and somehow failed to follow the current precedent 
because the Supreme Court at some later date might change that 
precedent. It makes absolutely no sense.
  So what our colleagues are doing is basically saying that no nominee 
of President Trump's or any Republican nominee is going to get 
confirmed to the Supreme Court because it is going to require 60 votes 
to do so. This would be unprecedented in our Nation's history. I think 
it will be an abuse of the power we have in the Senate of encouraging 
debate, which is the cloture vote, by filibustering this outstanding 
nominee.
  I have said it before and I will say it again: Judge Gorsuch is going 
to have his day on the Senate floor. We are going to have a fulsome 
debate. We are going to give our Democratic colleagues a chance to do 
the right thing and to vote at some point to cut off debate and then 
have an up-or-down vote to confirm the nominee, just as has happened in 
every single case before, with the possible exception of the Fortas 
nomination, which I described earlier, which was ultimately withdrawn 
and the judge resigned because of an ethical scandal.
  I hate to see our colleagues taking us down this path, but they are 
determined to oppose anything and everything these days. We used to say 
there was a difference between campaigning and governing. Basically, 
they are so upset with the outcome of the election that they are 
continuing the political campaign now and making it impossible for us 
to do our work here in the Senate. It is a crying shame.
  I can only hope that cooler heads will prevail and that others in the 
Democratic caucus will listen to Senator Leahy and others who say they 
are not inclined to filibuster. Whether they decide to vote against the 
nominee is entirely up to them, but denying the majority in the Senate 
a chance to vote to confirm the nominee is simply unacceptable, and it 
will not stand.
  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.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, confirming a Supreme Court nominee is one 
of the Senate's most significant constitutional responsibilities. I 
come to the floor today to announce that I shall cast my vote for Judge 
Neil Gorsuch to be a Justice of the U.S. Supreme Court. In making my 
decision, I evaluated Judge Gorsuch's qualifications, experience, 
integrity, and temperament. I questioned him for more than an hour in a 
meeting in my office, evaluated his record, spoke with people who know 
him personally, and reviewed the Judiciary Committee's extensive 
hearing record. While I have not agreed with every decision Judge 
Gorsuch has made, my conclusion is that he is eminently well qualified 
to serve on our Nation's highest Court.

[[Page 4912]]

  Judge Gorsuch has sterling academic and legal credentials. In 2006, 
the Senate confirmed this outstanding nominee by a voice vote to his 
current position on the U.S. Court of Appeals. A rollcall vote was 
neither requested nor required.
  Judge Gorsuch's ability as a legal scholar and judge has earned him 
the respect of members of the bar. The American Bar Association 
Standing Committee on the Federal Judiciary has unanimously given him 
its highest possible rating of ``well qualified.'' President Obama's 
former Acting Solicitor General testified before the Judiciary 
Committee in support of Judge Gorsuch, praising him as fair, decent, 
and committed to judicial independence.
  I have also received a letter signed by 49 prominent Maine attorneys 
with diverse political views, urging support for Judge Gorsuch's 
nomination. They wrote:

       Gorsuch's judicial record demonstrates his remarkable 
     intelligence, his keen ability to discern and resolve the 
     central issues at dispute in a legal proceeding . . . and his 
     dedication to the rule of law rather than personal 
     predilections. His judicial record also confirms that he is 
     committed to upholding the Constitution, enforcing the 
     statutes enacted by Congress, and restraining overreach by 
     the executive branch.

  In my view, these are precisely the qualities that a Supreme Court 
Justice should embody.
  I ask unanimous consent that this letter be printed in the Record 
following my remarks.
  Our personal discussion allowed me to assess the judge's philosophy 
and character. I told him that it was important to me that the 
judiciary remain an independent check on the other two branches of 
government as envisioned by our Founders. Therefore, I asked him 
specifically whether anyone in the administration had asked him how he 
would rule or sought any commitment from him on any issue. He was 
unequivocal that no one in the administration had asked him for such 
promises or to prejudge any issue that could come before him. He went 
on to say that the day a nominee answered how he would rule on a matter 
before it was heard or promised to overturn a legal precedent, that 
would be the end of an independent judiciary.
  During the Judiciary Committee hearings, when Senator Lindsey Graham 
asked him a similar question about whether he was asked to make 
commitments about particular cases or precedents, he gave the same 
answer. In fact, Judge Gorsuch notably said that if someone had asked 
for such a commitment, he would have left the room because it would 
never be appropriate for a judge to make such a commitment, whether 
asked to do so by the White House or a U.S. Senator.
  Neil Gorsuch is not a judge who brings his personal views on any 
policy issues into the courtroom. If it can be said that Judge Gorsuch 
would bring a philosophy to the Supreme Court, it would be his respect 
for the rule of law and his belief that no one is above the law, 
including any President or any Senator.
  I am convinced that Judge Gorsuch does not rule according to his 
personal views, but rather follows the facts and the law wherever they 
lead him, even if he is personally unhappy with the result. To 
paraphrase his answer to one of my questions about putting aside his 
personal views, he said that a judge who is happy with all of his 
rulings is likely not a good judge.
  The reverence that Judge Gorsuch holds for the separation of powers, 
which is at the core of our American democracy, was also evident in our 
discussion. As he reiterated throughout his confirmation hearing, the 
duty to write the laws lies with Congress, not with the courts and not 
with the executive branch. Members of this body should welcome his deep 
respect for that fundamental principle.
  Judge Gorsuch's record demonstrates that he is well within the 
mainstream of judicial thought. He has joined in more than 2,700 
opinions, 97 percent of which were unanimously decided, and he sided 
with the majority 99 percent of the time.
  I asked Judge Gorsuch how he approaches legal precedents. I asked him 
if it would be sufficient to overturn a long-established precedent if 
five current Justices believed that a previous decision was wrongly 
decided. He responded: ``Emphatically no.'' And that, to me, is the 
right approach. He said a good judge always starts with precedent and 
presumes that the precedent is correct.
  During his Judiciary Committee hearing, Judge Gorsuch described 
precedent as ``the anchor of the law'' and ``the starting place for a 
judge.'' He has also coauthored a book on legal precedent with 12 other 
distinguished judges, for which Justice Stephen Breyer wrote the 
introduction.
  Now, there has been considerable discussion over the course of this 
nomination process about the proper role of the courts in our 
constitutional system of government. It is also important for us to 
consider the roles that the executive and legislative branches play in 
the nomination process.
  Under the Constitution, the President has wide discretion when it 
comes to nominations to the Supreme Court. The Senate's role is not to 
ask, Is this the person whom I would have chosen to sit on the bench? 
Rather, the Senate is charged with evaluating each nominee's 
qualifications for serving on the Court.
  I have heard opponents of this nominee criticize him for a variety of 
reasons, including his methodology and charges that he is somehow 
extreme or outside of the mainstream. But I have not heard one Senator 
suggest that Judge Gorsuch lacks the intellectual ability, academic 
credentials, integrity, temperament or experience to serve on the U.S. 
Supreme Court. Yet it is exactly those characteristics that the Senate 
should be evaluating when exercising its advice and consent duty.
  This is especially true when Senators contemplate taking the extreme 
step of filibustering a Supreme Court nomination. As you well know, 
unfortunately, it has become Senate practice of late to filibuster 
almost every question before this body simply as a matter of course. 
But that would be a serious mistake in this case, and it would further 
erode the ability of this great institution to function. In 2005, when 
the Senate was mired in debate over how to proceed on judicial 
nominations, a bipartisan group of 14 Senators proposed a simple and 
reasonable standard. That group--of which I am proud to have been a 
part--declared that for Federal court nominations a Senator should only 
support a filibuster in the case of extraordinary circumstances.
  Since coming to the Senate, I have voted to confirm four Justices to 
the Supreme Court. Two were nominated by a Democratic President, and 
two were nominated by a Republican President. Each was confirmed: Chief 
Justice Roberts by a vote of 78 to 22, Justice Alito by a vote of 58 to 
42, Justice Sotomayor by a vote of 68 to 31, and Justice Kagan by a 
vote of 63 to 37.
  Before I became a Senator, this body confirmed Justice Kennedy, 97 to 
0; Justice Scalia, 98 to 0; Justice Thomas, 52 to 48; Justice Ginsburg, 
96 to 3; and Justice Breyer, 87 to 9.
  Note that two of the current members of the Supreme Court were 
confirmed by fewer than 60 votes, but consistent with the standard that 
we established in 2005, neither one was filibustered.
  Even Robert Bork, whose contentious confirmation hearings are said to 
have been the turning point in the Senate's treatment of Supreme Court 
nominations, was rejected by a simple failure to secure a majority of 
votes--42 yeas to 58 nays--not by a Senate filibuster. In fact, the 
filibuster has been used successfully only once in modern history to 
block a Supreme Court nomination. That was an attempt to elevate 
Justice Abe Fortas to be Chief Justice in 1968, nearly half a century 
ago. In that case, Justice Fortas ended up withdrawing under an ethical 
cloud.
  The result of the votes on Justice Alito's nomination are also 
illuminating. In 2006 Senators voted to invoke cloture by a vote of 75 
to 25. That is considerably more Senators than those who ultimately 
voted to confirm him, which was accomplished by a vote of 58 to 42. 
Here again, Senators proceeded to a ``yes'' or ``no'' vote on the 
nomination.

[[Page 4913]]

  Let me be clear. I do believe strongly that it is appropriate for the 
Senate to use its advice and consent power to examine nominations 
carefully or even to defeat them. In fact, I have voted against 
judicial nominees of three Presidents. But playing politics with 
judicial nominees is profoundly damaging to the Senate's reputation and 
stature. It politicizes our judicial nomination process and threatens 
the independence of our courts, which are supposed to be above partisan 
politics. Perhaps most importantly, it undermines the public's 
confidence in the judiciary.
  Since the Founders protected against the exertion of political 
influence on sitting Justices, the temptation to do everything in one's 
power to pick nominees with the right views is understandably very 
strong. But the more political Supreme Court appointments become, the 
more likely it is that Americans will question the extent to which the 
rule of law is being followed. It erodes confidence in the fair and 
impartial system of justice, and it cultivates a suspicion that judges 
are imposing their personal ideology.
  The Senate has the responsibility to safeguard our Nation against a 
politicized judiciary. The Senate should resist the temptation to 
filibuster a Supreme Court nominee who is unquestionably qualified, the 
temptation to abandon the traditions of comity and cooperation, and the 
temptation to further erode the separation of powers by insisting on 
judicial litmus tests. It is time for the Senate to rise above 
partisanship and to allow each and every Senator to cast an up-or-down 
vote on this nominee.
  This nomination deserves to move forward, as the dozens of 
distinguished Maine attorneys who wrote to me in support of his 
nomination said:

       In sum, during his tenure on the U.S. Court of Appeals, 
     Judge Gorsuch distinguished himself as a judge who follows 
     the law with no regard for politics or outside influence. We 
     could not ask for more in an associate Justice.

  I agree, and I look forward to the confirmation of Judge Neil Gorsuch 
to be a Justice of the U.S. Supreme Court.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   March 23, 2017.
     Re: Nomination of Judge Neil Gorsuch.

     Hon. Susan M. Collins,
     U.S. Senator, Dirksen Senate Office Building, Washington, DC.
     Hon. Angus S. King,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senators Collins and King: The undersigned Maine 
     attorneys respectfully request that you support the 
     confirmation of Judge Neil M. Gorsuch as Associate Justice of 
     the United States Supreme Court.
       Our practices are varied by geography, practice area, size 
     of firm, and type of clients we represent. We also hold a 
     diverse set of political views. Nonetheless, we agree that 
     Judge Gorsuch is exceptionally well qualified to join the 
     Supreme Court.
       As members of the Maine legal community, we have an 
     interest in the nomination of Judge Gorsuch. While most of us 
     will never have the opportunity to appear before the United 
     States Supreme Court, each of us has a strong interest in 
     supporting the confirmation of highly qualified jurists who 
     will maintain the Supreme Court's commitment to the rule of 
     law. The precedents established by the Supreme Court affect 
     each of us and the fellow Mainers whom we serve as our 
     clients.
       As you have surely found during the nomination process, 
     Judge Gorsuch is eminently qualified to serve as Associate 
     Justice. His qualifications were recently confirmed by the 
     American Bar Association, which rated him as ``well 
     qualified,'' its highest rating. Judge Gorsuch's judicial 
     record demonstrates his remarkable intelligence, his keen 
     ability to discern and resolve the central issues at dispute 
     in a legal proceeding, his notably clear and concise writing 
     style, and his dedication to the rule of law rather than 
     personal predilections. His judicial record also confirms 
     that he is committed to upholding the Constitution, enforcing 
     the statutes enacted by Congress, and restraining overreach 
     by the Executive Branch. He voted with the majority in 98 
     percent of the cases he heard on the Tenth Circuit, and was 
     frequently joined by judges appointed by Democratic 
     Presidents. Seven of his opinions have been affirmed by the 
     Supreme Court--four unanimously--and none reversed.
       In sum, during his tenure on the U.S. Court of Appeals, 
     Judge Gorsuch distinguished himself as a judge who follows 
     the law with no regard for politics or outside influence. We 
     could not ask for more in an Associate Justice and we ask for 
     your strong support of him and vote of confirmation.
           Sincerely,
       John J. Aromando; Brett D. Baber; Shawn K. Bell; Daniel J. 
     Bernier; Fred W. Bopp III; Timothy J. Bryant; Aaron D. 
     Chadbourne; John W. Chapman; Michael J. Cianchette; Roger A. 
     Clement, Jr.; Randy J. Creswell; Christopher M. Dargie; Avery 
     T. Day; Bryan M. Dench; Thomas R. Doyle; Michael L. Dubois; 
     Joshua D. Dunlap; Charles S. Einsiedler, Jr.
       James R. Erwin; Kenneth W. Fredette; Justin E. French; 
     Benjamin P. Gilman; Kenneth F. Gray; P. Andrew Hamilton; 
     Jeffrey W. Jones; Ralph I. Lancaster, Jr.; Ronald P. Lebel; 
     Tyler J. LeClair; Scott T. Lever; William P. Logan; Holly E. 
     Lusk; Chase S. Martin; Sarah E. Newell; Bradford A. 
     Pattershall; Dixon P. Pike; Gloria A. Pinza.
       Susan J. Pope; Michael R. Poulin; Norman J. Rattey; Daniel 
     P. Riley; Adam J. Shub; Joshua E. Spooner; Robert H. Stier, 
     Jr.; Patrick N. Strawbridge; Alexander R. Willette; Timothy 
     C. Woodcock; Eric J. Wycoff; Sarah S. Zmistowski; Thad B. 
     Zmistowski.

  Ms. COLLINS. I yield the floor.
  Seeing no one seeking recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Flake). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Missouri.
  Mr. BLUNT. Mr. President, I come today to talk about the nomination 
of Judge Neil Gorsuch to serve on the U.S. Supreme Court. Once again, 
throughout the hearings last week, Judge Gorsuch proved that he has the 
knowledge, he has the temperament, and he has the experience to serve 
on our Nation's highest Court. He laid out a clear judicial philosophy 
that adheres to what I think most Americans want to see happen today on 
the Court and what clearly the Framers of the Constitution thought 
would happen.
  In his own words, Judge Gorsuch said: ``I have one client, it's the 
law.'' That is the way the Founders saw the Supreme Court. They didn't 
see it as a legislative body. All good judges had to do was to read the 
law. They didn't have to be happy with the law. They didn't have to 
approve the law. They didn't have to determine that the law and the 
Constitution met their exact standard. They just had to determine what 
the law and the Constitution said. In fact, the first Supreme Court had 
six judges. There was no thought that it was a legislative body that 
had to have a tie-breaking judge so you could legislate.
  They thought six judges were plenty. By the way, they thought they 
needed six circuits. Each of those judges rode a circuit. So even when 
there was an appeal to the Supreme Court, one of the judges had already 
heard the case at the lower level. That judge heard the case again and 
then listened to see if that judge heard anything new, something that 
might change their mind. The other five of them were sitting there with 
the appeal of one of their colleagues, and nobody saw that as a problem 
because the Court wasn't about legislating.
  The Court was about determining what the law should say. Again, Judge 
Gorsuch said: ``I have one client, it's the law.'' It is not the little 
guy. It is not the big guy. It is not the medium-size guy: It is the 
law. He was asked over and over: Are you going to find for the little 
guy or the big guy? Well, that is not the judge's job. The judge's job 
is to read the law so both the little guy and the big guy know when 
they are in court that this is a country where the rule of law matters. 
They know, when they enter into a contract, that if you and your lawyer 
have read the law right, there shouldn't, at the end of the day, be 
very much gray space about what that contract said.
  Throughout his career, Judge Gorsuch has demonstrated his commitment 
to interpret the Constitution as it is written, applying the rule of 
law and not legislating from the bench. ``Judges are not politicians in 
robes.'' I think that may be another Gorsuch comment: ``Judges are not 
politicians in robes.'' If he didn't say it, his career as a judge 
shows that he believes it. Unfortunately, some of my colleagues have 
shown that their deference to the Constitution is not the same when it

[[Page 4914]]

comes to the Senate's role to advise and consent.
  I am particularly dismayed by the Democratic leader's intention to 
filibuster Judge Gorsuch's nomination. Republicans have never 
filibustered a Democratic nominee, yet colleagues across the aisle 
appear willing to do just that. Such a maneuver would only be an 
affront to our national norms.
  I don't know in the history of the country--I think there was one 
filibuster led by Democrats against a nomination by a Democrat 
President when Lyndon Johnson nominated Abe Fortas to move from 
Associate Justice to the Chief Justice's role. It didn't happen in 1968 
because it was a Presidential year and Justices don't get confirmed in 
the Supreme Court in a Presidential year in vacancies that hadn't even 
occurred yet. No. 2, it was led by Democrats in a Senate that had an 
overwhelming Democratic majority. There has never been a partisan 
filibuster effort involving any Justice on the Supreme Court until 
right now--until right now--and I am disappointed that that is what the 
Democratic leader of the Senate says he wants to do.
  According to Robert David Johnson, a Brooklyn College history 
professor, ``The chances of success'' of a partisan filibuster ``are 
basically zero.'' So my thought would be: Why pursue it?
  Kim Strassel recently wrote in the Wall Street Journal: ``Never in 
U.S. history have we had a successful partisan filibuster of a Supreme 
Court nominee.''
  In the last half century, only three Supreme Court Justices have even 
faced a filibuster. The most recent, Justice Alito, was ultimately 
confirmed when 19 Democrats refused to back the filibuster of his 
nomination. He had the full vote, and he got a majority vote.
  One would think that if Senate Democrats are willing to upend Senate 
tradition to block this nomination, they would have an unassailable 
reason to block it. They would be saying this judge is not qualified. 
This judge hasn't served his time. We don't know what he would do as a 
judge. He has been on the circuit court of appeals for a decade, and 
when looking at case after case, appeal after appeal, we see his 
unbelievably fine record as a judge.
  In announcing his intention to mount this filibuster, the leader of 
the Democrats in the Senate said that Judge Gorsuch ``was unable to 
sufficiently convince me that he'd be an independent check'' on the 
executive branch. The American Bar Association unanimously gave Judge 
Gorsuch's nomination their highest rating. They disagree. As they 
explained, ``based on 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.''
  This is from the American Bar Association, which many of my 
colleagues on both sides of the aisle have said over and over again is 
the ultimate test of qualification for the Court.
  When I met with the judge last month, he left no doubt in my mind 
that he would uphold the judiciary's unique constitutional role in our 
system of checks and balances.
  Let me go back to the other quote here for a minute. What was it that 
the Senator from New York said? ``Judge Gorsuch was unable to 
sufficiently convince me that he'd be an independent check'' on the 
executive branch. I am not even sure I know where in the Constitution 
that is the job of the judge. The job of the judge is to read the law 
and look at the Constitution. The job of the Congress is to pass the 
law. The job of the President is to sign the law. Unless there is some 
constitutional problem with that law, it is not the judge's job to 
decide whether the law is right or not, unless there is a 
constitutional reason to do that.
  Last week, I mentioned Judge Gorsuch's qualifications for the bench, 
but I think they bear repeating as we enter the next few days. As a 
graduate of Columbia University, a graduate of Harvard Law and Oxford 
University, his academic credentials are at the highest level. Judge 
Gorsuch has served his country admirably as a Supreme Court clerk, 
first for a Democrat on the Court, Byron White, who had been appointed 
by President Kennedy, and for a Republican appointee, Anthony Kennedy, 
appointed by President Reagan. He has been the principal Deputy 
Associate Attorney General of the United States at the Department of 
Justice, and in 2006, George W. Bush nominated him to serve on the 
Tenth Circuit Court of Appeals. The Senate unanimously confirmed his 
position at that time. Every single Democrat--12 of them now serving in 
the Senate who were in office, supported his nomination in 2006. In the 
decade that he served on the Tenth Circuit Court, he has shown 
independence, integrity, and he has shown a mainstream judicial 
philosophy. He has demonstrated a legal capacity that makes him a 
worthy successor to Justice Scalia on the Court. There is no precedent 
for requiring a 60-vote threshold to confirm a Supreme Court Justice, 
and Judge Gorsuch has given this body no reason to demand one now.
  I look forward to supporting his nomination. It will reach the Senate 
floor, I believe, after the Judiciary Committee deals with it early 
next week. I hope by the time we leave here a week from Friday that 
Judge Gorsuch is on his way to join the Supreme Court as an Associate 
Justice. By the way, if he does that, he will be the first Associate 
Justice ever to serve on the Court with a Justice for whom he clerked 
two decades or more ago. When he and Justice Kennedy get a chance to 
serve together--I look forward to seeing that happen.


                            Order for Recess

  Mr. President, I ask unanimous consent that the Senate recess from 
12:30 p.m. until 2:15 p.m. today for the weekly conference meetings.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. 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 PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I rise to speak on the nomination of Judge 
Neil Gorsuch to serve on the U.S. Supreme Court.
  It is important to reflect for a moment on how we have reached this 
moment. It has been more than a year since the untimely passing of 
Justice Antonin Scalia in February of 2016. Under article II, section 2 
of the U.S. Constitution, President Barack Obama had a duty to make a 
nomination to fill that vacant seat. He met that obligation by 
nominating Chief Judge Merrick Garland in March of 2016.
  Yet the leader of the Senate Republicans, Majority Leader McConnell, 
announced that, for the first time in the 230-year history of the 
Senate, he would refuse the President's nominee, Judge Garland, a 
hearing and a vote. Senator McConnell further said that he would refuse 
to even meet with Judge Garland. It was a transparent political 
decision made by the Republican leader in the hopes that a Republican 
would be elected President and fill the vacancy. It was part of a 
broader Republican political strategy to influence, if not capture, the 
judicial branch of government on every level of the court system.
  Not only did the Senate Republicans keep a Supreme Court seat vacant 
for over a year, they turned the Senate's Executive Calendar into a 
nomination obituary column for 30 other judicial nominees who had been 
reported out of the Judiciary Committee with bipartisan support. They 
were hoping a Republican President would fill all of those seats, and 
they were prepared to leave them vacant for a year or more to achieve 
that end.
  What kind of nominees were they hoping for? Nominees who had been 
blessed by special interests, by big business, and by Republican 
advocacy organizations.
  It was last year that then-Candidate Donald Trump released a list of 
21 potential Supreme Court candidates who

[[Page 4915]]

were handpicked by two Republican advocacy groups--the Federalist 
Society and the Heritage Foundation. I am not speculating on the fact 
that they were chosen by those two groups, as President Trump publicly 
thanked the groups for giving him a list of names with which to fill 
the vacancies on the Supreme Court. It was unprecedented for anyone, 
including a candidate for President, to outsource the judicial 
selection process to special interest groups, but President Trump did 
it. True to his word to these special interest groups, he nominated one 
of the names on the list--Judge Neil Gorsuch.
  The first telephone call Judge Gorsuch received about his nomination 
was not from the White House; it was from the Federalist Society, which 
was one of these Republican advocacy groups. Eventually, Judge Gorsuch 
made it to the interview stage with President Trump's inner circle. He 
met with Steve Bannon, Reince Priebus, and President Trump himself. 
Those men each took the measure of Judge Gorsuch and gave him their 
approval to serve for a lifetime appointment on the highest Court in 
the land. President Trump, who had announced numerous litmus tests for 
judicial nominations, appeared very satisfied with Neil Gorsuch as his 
nominee.
  The President's Chief of Staff, Reince Priebus, even said: ``Neil 
Gorsuch . . . represents the type of judge that has the vision of 
Donald Trump.''
  There was certainly no political subtlety in that evaluation.
  After Judge Gorsuch's nomination was announced, a dark money machine 
shifted into gear. A national campaign, which cost at least $10 
million, was launched to support the Gorsuch nomination. Because it is 
dark money, there is no disclosure about who is bankrolling this 
effort, but it is a safe bet that the suppliers of dark money have at 
least a passing interest in cases before the U.S. Supreme Court.
  Despite this unprecedented and unsettling process that led to Judge 
Gorsuch's nomination, the Democrats on the Senate Judiciary Committee 
gave Judge Gorsuch a courtesy that Republicans denied to Judge 
Garland--a hearing and a vote. Why? Because Senate Democrats take the 
Constitution seriously. We do not turn our backs on the constitutional 
responsibility of advice and consent, even though that is exactly what 
our Republican colleagues did when it came to Merrick Garland.
  Last week, the Senate Judiciary Committee met for 4 days to consider 
the Gorsuch nomination. In leading up to the hearing, I made it clear 
on the Senate floor that I thought that Judge Gorsuch had a burden to 
bear at that hearing.
  On February 2, I said here on the floor that Judge Gorsuch needed to 
demonstrate that he would be a nominee who would uphold and defend the 
Constitution for the benefit of everyone, not just for the advantage of 
a privileged few who happened to engineer his nomination.
  I also said that Judge Gorsuch needed to be forthright with the 
American people about his record and his views. I made it clear that 
avoiding answers to critical questions was unacceptable.
  I said that he needed to demonstrate that he would be an independent 
check on President Trump and every President and that he was prepared 
to disappoint the President and the rightwing groups that handpicked 
him if the Constitution and the law required it.
  Judge Gorsuch was given a full and fair hearing. He was given every 
opportunity to explain his judicial record and his views and to meet 
the expectations I laid out for him. I came away from this hearing 
firmly convinced that I must oppose the nomination of Neil Gorsuch.
  Here are the reasons:
  Judge Gorsuch favors corporations and elites over the rights and 
voices of Americans, often using selective textualism to advance his 
agenda. Judge Gorsuch's hearing reinforced my fear that he would lean 
toward corporations and special interest elites at the expense of 
American workers and families.
  Big business and special interests have found a friend under the 
Roberts Supreme Court. I noted at the hearing a study by the 
Constitutional Accountability Center that found that under Chief 
Justice John Roberts the Supreme Court has ruled for positions that 
have been advocated by the Chamber of Commerce 69 percent of the time.
  I am concerned, based on a review of his record, that Judge Gorsuch 
is likely to increase the pro-business leanings of the Roberts Court. 
In a series of decisions--and I have read many of them--involving 
workers' rights, discrimination claims, consumer rights, and access to 
the courts, Judge Gorsuch has, time and again, favored corporations. He 
has often substituted his own judgment for those of the agencies that 
are tasked with protecting the workers.
  No case was more egregious than the TransAm Trucking case, which was 
brought up repeatedly at the hearing. The facts are pretty well known 
by now. In January, Alphonse Maddin, a truck driver from Detroit, was 
stuck on the side of Interstate 88 in my home State of Illinois, and it 
was 14 degrees below zero outside. The brakes on his trailer were 
frozen. After waiting for a repair truck for several hours without his 
having any heat in the cab of his truck, Alphonse Maddin's body was 
starting to go numb. He called the trucking company one more time. They 
said: You have two options--stay in that truck or drag that frozen 
trailer down the interstate highway.
  Both of those options were a risk to health and safety and common 
sense. So, instead, Al Maddin unhitched the broken-down trailer and 
drove to a gas station to fuel up and get warm and then returned to the 
disabled trailer. For this, the company fired him, and that firing 
blackballed him from ever working as a truck driver again.
  Al Maddin came by my office and explained what he did. He had heard 
that there was some Federal agency that might consider what he had 
considered to be an unfair firing, so he went down to the agency and 
took out a ballpoint pen and filled out the complaint in longhand 
without the advice of counsel or any help. He was shocked when he won.
  The case went further on appeal. Seven different judges heard Al 
Maddin's case. Six of them agreed that what had happened to him was 
unfair and unlawful. The only judge who found for the trucking company 
was Neil Gorsuch.
  Judge Gorsuch's dissent claimed that he was merely looking at the 
plain text of the law and the dictionary's definition and that was why 
Al Maddin had been fired. But the Tenth Circuit majority said that Neil 
Gorsuch was cherry-picking one dictionary's definition to come to his 
conclusion. Other dictionaries and the law's purpose of protecting 
health and safety had been ignored by Judge Gorsuch.
  Republican nominees like Judge Gorsuch often claim they are using the 
supposedly neutral philosophies of originalism and textualism to guide 
their decision making, but Al Maddin's case shows how Judge Gorsuch 
used a selective choice of text to advance a pro-business agenda at the 
expense of this American worker.
  There are many other cases in Judge Gorsuch's record that demonstrate 
this trend, leading the Associated Press to say that Gorsuch's workers' 
rights opinions are ``often sympathetic but coldly pragmatic, and 
they're usually in the employer's favor.''
  Take a look at the Hobby Lobby case. In that case, Judge Gorsuch 
expanded the idea that a corporation--a business--is a person. Why? He 
wanted to permit a for-profit corporation to impose its owners' 
personal religious beliefs on more than 13,000 employees who worked at 
that corporation and to limit their access to healthcare under 
insurance policies.
  In finding for the corporation, Judge Gorsuch barely acknowledged 
that this decision burdened these thousands of employees and their 
personally constitutionally protected religious beliefs and choices.
  Judge Gorsuch also has a troubling record when it comes to protecting 
the rights of Americans with disabilities and those who are victims of 
discrimination. It was quite a scene when, last week, in the midst of 
our hearing on

[[Page 4916]]

Judge Gorsuch, the Supreme Court issued a unanimous ruling that 
rejected a standard that had been created by Judge Gorsuch. I am sure 
that has never happened in history. This standard, which Judge Gorsuch 
had promoted for a case in which he wrote the majority opinion, 
weakened protections for students with disabilities under the 
Individuals with Disabilities Education Act.
  In 2008, Judge Gorsuch wrote in the Luke P. case that, under the 
IDEA, schools need only to provide educational benefits to students 
with disabilities that are merely more than de minimis.
  At issue was the legal responsibility of a school district to provide 
educational opportunities for a child with disabilities. In this case, 
Luke was a boy from Colorado who had suffered from severe autism. With 
the assistance and support of his teachers, Luke had made significant 
progress in school--in kindergarten and first grade. Then, when his 
family moved to a new home, he had to change school districts. At his 
new school, Luke began to lose the skills he had gained. His behavior 
was worse.
  After unsuccessful attempts to address these concerns, Luke's parents 
decided that they ``could not in good conscience continue to expose 
their son, Luke, to this environment that was so detrimental to his 
educational and behavioral development.'' They decided to enroll Luke 
in a residential school that was dedicated to the education of children 
with his type of autism spectrum disorder.
  A due process hearing officer, a Colorado State administrative law 
judge, and a Federal district court all found that the school district 
had failed to provide the education that was guaranteed to Luke under 
the Federal law of IDEA and that it was, therefore, required to 
reimburse the cost of the private residential school placement that 
Luke needed.
  His parents were desperate to give Luke a chance in life, but then 
Judge Gorsuch ruled against them. In so doing, he created a new, lower 
standard for school districts in the process.
  I asked Judge Gorsuch about this. He claimed he was just following 
the law and precedent, but as I pointed out at the hearing, that was 
not accurate. A legal analysis showed that Judge Gorsuch was the first 
judge in that circuit to add the word ``merely'' to the standard.
  Luke P.'s father, Jeff, testified at the hearing and said that Judge 
Gorsuch's ``subtle wordcraft'' had the effect of ``further restricting 
an already restricted precedent with, unfortunately, my son in the 
bull's-eye of that decision.''
  What did Chief Justice John Roberts of the U.S. Supreme Court say of 
the Gorsuch standard? Here is what he said: ``When all is said and 
done, a student offered an educational program providing `merely more 
than de minimis' progress [Gorsuch's words] from year to year can 
hardly be said to have been offered an education at all.''
  The Supreme Court sent a strong message when they released this 
opinion in the midst of Judge Gorsuch's hearing. The Court unanimously 
said that the Judge Gorsuch standard was inconsistent with the law. On 
this issue, Judge Gorsuch, the nominee, is somewhere to the right even 
of Justice Clarence Thomas. This case is not an outlier. In fact, an 
analysis of his disability decisions shows that Judge Gorsuch has ruled 
against disabled students in 8 out of 10 IDEA cases.
  There was also a consistent pattern of Judge Gorsuch's record on 
discrimination and retaliation involving employers. Bloomberg BNA 
analyzed this record and found that he ruled for employers 8 out of 12 
times.
  For example, he ruled against a sex discrimination claim brought by a 
UPS saleswoman; a disability discrimination claim that was brought by a 
college professor; an age discrimination claim that was brought by two 
maintenance workers; a race discrimination claim that was brought by an 
African-American grocery store employee who was called a ``monkey'' by 
his supervisor; a gender and disability discrimination claim that was 
brought by a female county accountant with multiple sclerosis; and a 
discrimination claim that was brought by a transgender woman who sought 
to use the restroom of her gender identity.
  The case of Grace Hwang was particularly troubling to me. Ms. Hwang 
had been a college professor for 15 years. Then she was diagnosed with 
cancer. She needed a bone marrow transplant, so they gave her 6 months 
of sick leave. As it was about to expire, they told her to return to 
the classroom. Just at this same time, a flu epidemic was sweeping 
across the campus. Ms. Hwang asked to extend her leave and work from 
home so she wouldn't get infected. She felt especially vulnerable, 
having just had a bone marrow transplant.
  The university denied her request and terminated her employment 
because she asked to be protected from this flu epidemic. Judge Gorsuch 
authored an opinion upholding the dismissal of Ms. Hwang's disability 
discrimination complaint.
  Judge Gorsuch would not let a jury consider the reasonableness of her 
request. Instead, he wrote that six months' leave was ``more than 
sufficient'' and wrote that the purpose of disability law is ``not to 
turn employers into safety net providers for those who cannot work.''
  Grace Hwang's children said that Judge Gorsuch's opinion ``removed 
the human element from the equation. It did not bring justice.''
  Also, during the hearing, Judge Gorsuch refused to distance himself 
from the extreme and bigoted views of one of his college professors and 
his dissertation supervisor, Professor John Finnis, a man whom he has 
publicly praised.
  Overall, Judge Gorsuch's record raised serious concerns about what 
his confirmation would mean for the vulnerable and the victimized.
  We also came to learn that Judge Gorsuch was an aggressive defender 
of Executive power when he worked at the Justice Department during the 
Bush administration. In June 2004, after the terrible Abu Ghraib 
torture scandal, I offered the first legislation to ban cruel and 
inhuman treatment of detainees. This legislation ultimately became the 
McCain torture amendment, which, despite a veto threat by President 
Bush, passed this Senate in 2005 by an overwhelming 90-to-9 vote.
  But Judge Gorsuch advocated that the President should issue a 
statement claiming that the McCain amendment was ``essentially 
codifying'' torture techniques like waterboarding. This is despite 
overwhelming evidence from Senator McCain and others in Congress that 
this amendment was intended to do the exact opposite by outlawing 
cruel, inhuman, and degrading treatment.
  Judge Gorsuch testified that he was simply an attorney working for a 
client, but Gorsuch's email correspondence revealed that he was viewed 
as a ``true loyalist'' to the Republican administration. And this is a 
client that the judge actively lobbied to serve, even though their 
troubled record on torture was already a matter of public record.
  These documents from Gorsuch's tenure at the Department of Justice, 
which were not available during his earlier confirmation hearing for 
the Tenth Circuit, provide a revealing look at his beliefs on Executive 
power. They raise deeply troubling questions about what Judge Gorsuch 
would do if he is called upon to stand up to this President or any 
President who claims the power to ignore laws that protect fundamental 
human rights.
  For the majority of questions from Democratic Senators at his 
hearing, Judge Gorsuch failed to meaningfully respond. He had a 
standard set of evasions and nonanswers that he used whenever he was 
asked about fundamental legal principles and landmark cases. It didn't 
take long before this Senator, and many others, could finish his 
sentences before he started.
  In ducking these critical questions, Judge Gorsuch ended up saying 
nothing to assuage my concerns about Reince Priebus's pronouncement 
that Judge Gorsuch ``has the vision of Donald Trump.''
  The Supreme Court must serve as an independent check on President

[[Page 4917]]

Trump, not a rubberstamp. But Judge Gorsuch wouldn't even comment on 
the original meaning of the Constitution's emoluments clause, 
apparently for fear of possibly implicating the President who nominated 
him.
  Judge Gorsuch might not be the first nominee to avoid answering 
questions about his views, but he went further than others. As a 
result, members of the committee can look only to his judicial record 
and his work for the Justice Department to decide their vote for this 
lifetime appointment on the Supreme Court.
  His record on the bench and his record at the Justice Department make 
it clear that Judge Gorsuch is not the right person to serve in the 
highest Court in the land. We all want judges to follow the law and 
apply the facts fairly, but it is naive to believe that this is some 
kind of robotic exercise. Every judge brings some values to the court. 
In close cases, those values can tip the meaning of the law or even the 
facts before the court. One key purpose of these hearings is to provide 
reassurance that the nominee's values are in the American mainstream. I 
did not find this assurance in Judge Gorsuch's testimony last week, and 
I certainly didn't find it in his record. He received a fair hearing, 
but he did not earn my vote.
  Because Republicans control the Senate, we can expect Judge Gorsuch 
to be reported out of the Judiciary Committee next week and then to 
receive a vote on the Senate floor. But no one should be surprised that 
Judge Gorsuch will need to meet the threshold of 60 Senate votes in 
order to be confirmed.
  Majority Leader McConnell has made clear time and again that 60 votes 
is the standard for matters of controversy in this Senate. I will cite 
a few of the leader's more memorable quotes.
  On December 2, 2007, Senator McConnell said: ``I think we can 
stipulate once again for the umpteenth time that matters that have any 
level of controversy about it in the Senate will require 60 votes.''
  On October 28, 2009, Senator McConnell said: ``Well, it's fairly 
routine around the Senate that controversial matters require 60 
votes.''
  Then again, on July 17, 2007, Senator McConnell said: ``Sixty votes 
in the Senate? As common as gambling in Casablanca.''
  Sixty votes is a threshold that Supreme Court nominees have met for 
the past quarter century. If a Supreme Court nominee cannot garner 60 
votes in the Senate, then the President should put forward a new 
nominee.
  We are at a unique moment in history. The President has already fired 
an Attorney General and had his unconstitutional Executive actions 
blocked by many Federal courts. The President, in the first few weeks, 
has also launched unprecedented attacks on the integrity of the Federal 
judiciary. And now the Federal Bureau of Investigation has confirmed it 
is investigating Russian involvement in his election.
  A new bombshell is revealed almost every day.
  In this context, the Senate cannot simply rubberstamp a lifetime 
Supreme Court appointment for the President. Neil Gorsuch is the man 
Donald Trump urgently wants on the Supreme Court. That should give many 
Americans pause. It certainly gives pause to me.
  I cannot support the nomination of Neil Gorsuch. I will vote no when 
his nomination comes before the Judiciary Committee next week, I will 
vote no on cloture, and I will oppose his nomination on the Senate 
floor.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, the most solemn and serious and consequential 
act that the United States can undertake at any moment is to make the 
decision to send Americans into war. From time to time, war may be an 
unfortunate decision but a necessary decision--a necessary and 
potentially tragic function of any republic. And it might be 
necessitated by the need to safeguard the rights and the freedoms of 
the government's own citizens from foreign states--from those who would 
harm us. Yet we should enter into those wars and enter into any 
alliances that could lead to war only after utmost deliberation and 
strategic consideration, focusing specifically on the well-being of the 
American citizens--those people whom we are sworn to protect, those 
people whose safety is at stake whenever we go to war.
  That is why, for the past several months, I have asked that the 
Senate have a rollcall vote on the measure to ratify Montenegro's 
accession to the North Atlantic Treaty, and that is why I will be 
casting my vote against expanding NATO later today.
  Of course, treaties and alliances with other countries can be 
beneficial; there is no question about that. But the Founders of this 
country understood that their seriousness needs also to be considered--
that the seriousness of a treaty needs to be taken into account in the 
same way that you have to consider very carefully the seriousness of 
going to war, and for the very same reasons. That is why both of these 
powers--the power to make and ratify treaties and the power to declare 
and execute war--are given not to one single branch of the Federal 
Government, but rather they are shared by the legislative and executive 
branches acting together. In addition to this, treaty ratification 
requires not just a majority vote, but a two-thirds supermajority vote 
within the Senate.
  The United States should enter into treaties and alliances with 
foreign nations that will enhance the ability of American citizens to 
exercise their rights and freedoms and to safeguard those same people. 
At the heart of the NATO alliance is the article 5 guarantee for 
collective defense, stating, in essence, that an attack against any one 
NATO ally will be perceived and responded to as an attack against all. 
This means that the United States is obligated by treaty to make war 
because of an attack on an ally, and those allies are obligated to us 
for the same purpose and to the same extent. This, of course, is a very 
significant agreement. It is one that we should never take lightly. It 
is never one that we should just assume into existence any time we have 
a decision to make.
  Simply put, I don't see how the accession of Montenegro--a country 
with a population smaller than most congressional districts and a 
military smaller than the police force of the District of Columbia--is 
beneficial enough that we should share an agreement for collective 
defense. Montenegro becoming a member of NATO is certainly attractive 
to European countries because it makes the United States the security 
guarantor of yet another country in a region prone to instability and 
ethnic unrest, but that doesn't automatically make it of interest to 
the American people. It doesn't automatically mean that the benefits 
outweigh any risks to the American people by bringing this country into 
NATO.
  On the other hand, I believe the risks could outweigh the benefits to 
the detriment of the American people and result in more of our 
servicemembers being deployed overseas and at risk. The resolution of 
ratification on which the Senate is voting states that ``an attack 
against Montenegro, or its destabilization arising from external 
subversion, would threaten the security of Europe and jeopardize United 
States national security interests.''
  This makes NATO responsible not only for external security but for 
combating destabilization in a historically volatile part of the world. 
Undertaking obligations like this only increases the likelihood of 
Americans being placed in harm's way, of our brave young service men 
and women having to go into a potential field of battle.
  Further, expanding NATO does not address some of the systemic 
problems that U.S. administrations from both sides of the aisle have 
long pressed to their European counterparts: the failure of many NATO 
countries to meet decades-old defense spending obligations and the 
increasingly concerning behavior of some NATO members.
  For example, several weeks ago it was announced that American 
military personnel are now being used in northern Syria for the purpose 
of preventing

[[Page 4918]]

infighting between one of our NATO allies--Turkey--and our Kurdish 
allies in the coalition against ISIS. This was followed in short order 
by a diplomatic crisis between Turkey and the Netherlands--both NATO 
allies--in which the Turkish President accused the Dutch Government of 
fascism. European Commission President Jean-Claude Juncker in February 
rejected calls from the Trump administration, which were similar to 
pleas from the Obama administration, for European countries to increase 
their own defense spending in fulfillment of their existing obligations 
through NATO.
  Addressing such issues is much more vital to the future of NATO and 
American interests in Europe than further rounds of expansion.
  Finally, some of my colleagues have argued that we should move 
forward with Montenegro's accession into NATO because the Russians 
oppose it, just as the Russians have opposed all previous rounds of 
expansion. This is not the basis for a sound foreign policy. While the 
United States should not let another country have a veto over our 
national security decisions, it would be equally unwise for the United 
States simply to engage in certain actions just because geopolitical 
adversaries might oppose them. Such reactionary statecraft contradicts 
the ideals of prudence and practicality that our Founders hoped would 
guide our foreign policy.
  On a more practical level, it still doesn't mean that we should just 
be willing to put our Armed Forces in a position where our brave young 
men and women might have to go into harm's way as a result of the fact 
that a geopolitical adversary takes the opposite viewpoint.
  Further, elected officials should not have their patriotism or 
loyalty to country questioned because of their understandable concerns 
about national security, treaty obligations, and war. There are many 
thoughtful leaders and policy experts who have legitimate concerns--
both, about Russia's behavior and about the direction of NATO--and who 
support meaningful pressure against Russia through economic and 
diplomatic means, as well as the modernization of our strategic 
deterrent and missile defense systems.
  This vote, of course, is likely to pass and Montenegro will become 
the newest member of NATO this year. It is my sincere hope that the 
country will be a constructive force in addressing the operational and 
mission problems that I have described and that the Trump 
administration will press for needed reforms. But I also hope that 
American diplomatic leaders and Congress will work to identify and act 
on the security interests most relevant to the American people and 
think more strategically about our alliances and treaty partners in the 
future.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Mr. President, I come to the floor today to talk about 
the importance of the Senate's vote to ratify the accession of 
Montenegro into the North Atlantic Treaty Organization, or NATO. I am 
confident we will see an overwhelming, bipartisan majority of our 
colleagues here in the Senate support Montenegro's effort to join NATO. 
This is in Montenegro's interest, it is in Europe's interest, and it is 
in the national security interest of the United States.
  NATO is the most successful security alliance in history, and it is 
essential to the stability, freedom, and prosperity that Europe enjoys 
and that the United States has enjoyed, and, really, to that stability 
that has existed since after World War II. NATO has provided the 
security and stability for the freedoms we enjoy and the prosperity. 
Montenegro's accession to NATO will help the alliance become more 
resilient, and it will deter Russian aggression on Europe's eastern 
flank, which is why the alliance invited Montenegro to become its 29th 
member last year.
  I agree that Montenegro is a small country, but it is geopolitically 
important. Its membership in NATO will complete the alliance's control 
of the Adriatic coastline, and that will strengthen NATO's southern 
border.
  Since its independence from Serbia 10 years ago, Montenegro has 
pursued inclusion in Euro-Atlantic institutions, and it has been a good 
partner to NATO. For example, Montenegro has contributed ably to the 
mission in Afghanistan, which is the only time article 5 of NATO has 
been invoked. It was after the attacks of 9/11 on the United States, 
and our response was to go into Afghanistan. Montenegro joined us, 
along with our other NATO allies in this effort. Montenegro also 
imposed sanctions on Russia for its aggression in Ukraine.
  Montenegro's accession to NATO is also critically important for the 
wider Balkan region, which faces increasing Russian influence and 
interference. After all, remember that the two major wars of the last 
century, World Wars I and II, started in the Balkans. We need to do 
everything we can to maintain stability there. This is one of the 
things that I believe Montenegro's accession to NATO will help us do. 
We saw the increasing Russian influence and the increasing effort to 
destabilize the Balkans last year in Montenegro's fall elections.
  Since those elections, Montenegrin authorities have arrested several 
people in connection with a coup attempt and a plot to assassinate 
Montenegro's Prime Minister. There is indisputable evidence that ties 
both violent plots back to Russia, which was trying to eliminate a 
high-profile supporter of Montenegro's accession to NATO and install, 
instead, a pro-Kremlin political party there. Montenegrin police are 
still working with international authorities to locate the suspected 
Russian masterminds of these efforts.
  But when the bipartisan codel from the Senate and House, led by 
Senators McCain and Whitehouse, went to the Munich Security Conference 
in February, we had a chance to meet with Montenegro's Prime Minister 
Djukanovic. He told us in very vivid detail about the efforts to 
assassinate him and about Russia's efforts to install instead a pro-
Russian government. Do we really think that Mr. Putin, who desires 
nothing more than to weaken the NATO alliance, would work so hard to 
disrupt Montenegro's inclusion in NATO if he didn't think it would 
strengthen the alliance?
  Approving Montenegro's accession to NATO would signal support for 
Montenegro's independence and sovereignty and for their continued 
efforts to move towards the West and away from Russia. It would also 
demonstrate our solidarity with countries like Montenegro that Vladimir 
Putin is trying to bully, especially in light of our own recent 
experience with Russian meddling in our Presidential election. Now is a 
critically important time to send Russia the message that we will not 
tolerate this behavior. Last fall, a bipartisan group of diplomats, 
national security experts, and former administration officials sent a 
letter to Congress urging quick action on Montenegro's accession.
  Earlier this month, Secretary of State Rex Tillerson wrote a letter 
to Senator McConnell and Senator Schumer detailing the reasons 
Montenegro's accession to NATO is in our interest and urging that we 
schedule a prompt floor vote on the accession. Virtually all NATO 
members have already formally blessed Montenegro's inclusion in the 
alliance. So it is just the United States that hasn't taken this 
important step forward.
  The case for the Senate to support Montenegro's NATO accession is 
overwhelming. That is why it is so frustrating that it has taken so 
long. With Senator Johnson, I cochaired the Foreign Relations Committee 
hearing on this subject back in September of last year. In December and 
again in January, the Foreign Relations Committee approved Montenegro's 
accession protocol, and efforts were made to secure the necessary 
agreement for the full Senate to do the same. These efforts have been 
blocked by just a few Senators, despite the overwhelming bipartisan 
support for approval.
  I am glad that Montenegro's accession is finally getting the vote in 
the Senate that it deserves. The United States has long stood for 
freedom and democracy in Europe, and I urge my Senate colleagues to 
stand strong for freedom and democracy now by voting

[[Page 4919]]

to approve Montenegro's accession to NATO.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cruz). The Senator from South Dakota.


                       Nomination of Neil Gorsuch

  Mr. THUNE. Mr. President, last week the Senate Judiciary Committee 
held hearings on Judge Neil Gorsuch's nomination to the Supreme Court. 
Everything we heard from this nominee confirmed what has been clear 
from the beginning: Judge Gorsuch is the kind of judge all of us should 
want on the Nation's highest Court.
  Judge Gorsuch obviously has a distinguished resume. He graduated with 
honors from Harvard Law School and went on to receive a doctorate in 
legal philosophy from Oxford University, where he was a Marshall 
scholar.
  He clerked for two Supreme Court Justices--Byron White and Anthony 
Kennedy--and he worked in both private practice and at the Justice 
Department before being nominated to the Tenth Circuit Court of 
Appeals, where he has served with distinction for 10 years.
  He is widely regarded as a brilliant and thoughtful jurist and a 
gifted writer whose opinions are known for their clarity. Most 
importantly, however, Judge Gorsuch understands the proper role of a 
judge, and that role is to interpret the law, not make the law; to 
judge, not legislate; to call balls and strikes, not to rewrite the 
rules of the game.
  It is great to have strong opinions. It is great to have sympathy for 
causes or organizations. It is great to have plans for fixing society's 
problems, but none of those things has any business influencing your 
ruling when you sit on the bench. Your job as a judge is to apply the 
law as it is written--and here is the fundamental thing--even when you 
disagree with it.
  ``A judge who likes every outcome he reaches is very likely a bad 
judge,'' Judge Gorsuch said more than once. Why? Because a judge who 
likes every outcome he reaches is likely making decisions based on 
something other than the law. That is a problem. Equal justice under 
the law, equal protection under the law--these principles become 
meaningless when judges step outside of their role and start changing 
the meaning of the law to suit their feelings about a case or their 
personal opinions.
  Judge Gorsuch's nomination has attracted support from both sides of 
the political spectrum. I think the main reason for that is because 
both liberals and conservatives know they can trust Judge Gorsuch to 
rule based on the plain text of the law, irrespective of his personal 
opinions. Here is what Neal Katyal, an Acting Solicitor General for 
President Obama, had to say about Judge Gorsuch:

       I have no doubt that if confirmed, Judge Gorsuch will help 
     to restore confidence in the rule of law. His years on the 
     bench reveal a commitment to judicial independence--a record 
     that should give the American people confidence that he will 
     not compromise principle to favor the President who appointed 
     him.

  The Colorado Springs Gazette recently highlighted a letter signed by 
96 prominent Colorado lawyers and judges and sent to the senior Senator 
from Colorado. Here is what those individuals had to say about Judge 
Gorsuch:

       We hold a diverse set of political views as Republicans, 
     Democrats, and Independents. Many of us have been critical of 
     actions taken by President Trump. Nonetheless, we all agree 
     that Judge Gorsuch is exceptionally well qualified to join 
     the Supreme Court. We know Judge Gorsuch to be a person of 
     utmost character. He is fair, decent, and honest, both as a 
     judge and a person. His record shows that he believes 
     strongly in the independence of the judiciary.

  A former law partner and friend of Judge Gorsuch--a friend who 
describes himself as ``a longtime supporter of Democratic candidates 
and progressive causes''--had this to say about the judge:

       Gorsuch's approach to resolving legal problems as a lawyer 
     and a judge embodies a reverence for our country's values and 
     legal system. The facts developed in a case matter to him; 
     the legal rules established by legislatures and through 
     precedent deserve deep respect; and the importance of 
     treating litigants, counsel and colleagues with civility is 
     deeply engrained in him. . . .
       I have no doubt that I will disagree with some decisions 
     that Gorsuch might render as a Supreme Court Justice. Yet, my 
     hope is to have Justices on the bench such as Gorsuch . . . 
     who approach cases with fairness and intellectual rigor, and 
     who care about precedent and the limits of their roles as 
     judges.

  Again, that is from a self-described ``longtime supporter of 
Democratic candidates and progressive causes.''
  During his years on the bench, Judge Gorsuch has had a number of law 
clerks. On February 14, every one of Judge Gorsuch's former clerks, 
except for two currently clerking at the Supreme Court, sent a letter 
on his nomination to the chairman and ranking member of the Senate 
Judiciary Committee. Here is what they had to say:

       Our political views span the spectrum . . . but we are 
     united in our view that Judge Gorsuch is an extraordinary 
     judge. . . . Throughout his career, Judge Gorsuch has devoted 
     himself to the rule of law. He believes firmly that the role 
     of the judge in our democracy is to apply the laws made by 
     the political branches--that is, to adhere to our 
     Constitution and statutes our elected representatives have 
     enacted, and not to confuse those things with a judge's own 
     policy preferences.
       As law clerks who have worked at his side, we know that 
     Judge Gorsuch never resolves a case by the light of his 
     personal view of what the law should be. Nor does he ever 
     bend the law to reach a particular result he desires.
       For Judge Gorsuch, a judge's task is not to usurp the 
     legislature's role; it is to find and apply the law as 
     written. That conviction, rooted in his respect for the 
     separation of powers, makes him an exemplary candidate to 
     serve on the nation's highest court.

  That is the unanimous opinion of 39 of Judge Gorsuch's former law 
clerks, whose political views in their own words ``span the spectrum.'' 
Unfortunately, no amount of testimony in favor of Judge Gorsuch will 
ever be enough for some Senate Democrats.
  The Senate minority leader took to the floor last week to announce a 
determination to oppose Judge Gorsuch's nomination. He also announced 
his determination to push for a filibuster of Judge Gorsuch's 
nomination. The minority leader's reasons? Well, for starters, the 
minority leader apparently doesn't trust that Judge Gorsuch will use 
the bench to implement the leader's preferred policies. He disagrees 
with some of Judge Gorsuch's decisions, and he apparently considers 
that sufficient grounds to bar Judge Gorsuch from the Supreme Court. 
The minority leader demonstrated little interest in whether Judge 
Gorsuch's legal interpretations were correct. For the minority leader, 
judging is about getting one's preferred outcome, irrespective of what 
the law actually says.
  The minority leader also mentioned another reason for opposing Judge 
Gorsuch: He doesn't trust the judge to be independent or impartial, 
even though liberals and conservatives alike have praised Judge 
Gorsuch's independence and impartiality as two of his defining 
characteristics.
  The minority leader also made the laughable claim that Judge Gorsuch 
is somehow out of the judicial mainstream. Well, let me quote what the 
Wall Street Journal said on this subject. In February, the Journal 
wrote:

       Judge Gorsuch has written some 800 opinions since joining 
     the Tenth Circuit Court of Appeals in 2006. Only 1.75 percent 
     (14 opinions) [out of 800] drew dissent from his colleagues. 
     That makes 98 percent of his opinions unanimous even on a 
     circuit where seven of the 12 active judges were appointed by 
     Democratic Presidents and five by Republicans.

  Let me repeat that last line: ``That makes 98 percent of his opinions 
unanimous even on a circuit where seven of the 12 active judges were 
appointed by Democratic Presidents and five by Republicans.''
  Well, I wonder if the minority leader intended to suggest that the 
entire Tenth Circuit is composed of extremist judges or that all of the 
judges on the Tenth Circuit lacked impartiality or independence, 
because, logically speaking, if you are going to suggest that Judge 
Gorsuch is an extremist, then you would have to argue that his 
colleagues who agreed with his opinions 98 percent of the time are 
extremists too.
  The truth is, Democrat opposition to Judge Gorsuch has zero to do 
with whether Judge Gorsuch meets the qualifications of a Supreme Court 
Justice. It is obvious that the judge has all

[[Page 4920]]

the qualifications one could want in a Justice. Democrats are opposing 
Judge Gorsuch because they are mad. They are mad that their party 
didn't win the Presidential election, they are mad that their party 
doesn't have control of Congress, and they are mad that they are having 
to consider a judge nominated by a Republican President. It doesn't 
matter how qualified Judge Gorsuch is, how impartial he is, how 
independent he is, some Democrats are just going to oppose him anyway.
  This isn't the first time Judge Gorsuch has been before this body. 
Back in 2006, the Senate considered Judge Gorsuch's nomination to the 
Tenth Circuit. At that time, the judge's nomination sailed through the 
Senate. Both of his home State Senators--one a Republican and one a 
Democrat--supported his nomination, and he was confirmed by unanimous 
vote. Then-Senator Obama could have objected to the nomination, but he 
didn't. The current minority leader, who was serving in the Senate at 
that time, could have objected to the nomination, but he didn't. 
Senators Biden or Clinton could have objected to the nomination, but 
they didn't. Why? Presumably because they saw what almost everybody 
sees today: that Judge Gorsuch is exactly the kind of judge we want on 
the bench--supremely qualified, thoughtful, fair, and impartial. It is 
incredibly disappointing that some Democrats are now planning to oppose 
this eminently qualified Supreme Court nominee simply because they 
can't deal with losing an election.
  The Senate has a 230-year tradition of approving Supreme Court 
nominees by a simple majority vote. There has never been a successful 
partisan filibuster of a Supreme Court nominee in 230 years, and the 
only ones who have ever attempted one are the Democrats. Well, some 
Democrats may follow the minority leader in opposing Judge Gorsuch. I 
am hopeful that others will listen to the many voices, liberal and 
conservative, speaking out in support of his nomination.
  There is no good reason to oppose Judge Gorsuch, and there is every 
reason to support him. It is time to confirm the supremely qualified 
judge to the Supreme Court.
  Mr. President, I yield the floor.
  (Disturbance in the Visitors' Galleries.)
  The PRESIDING OFFICER. Expressions of approval will not be permitted 
by the gallery.
  The Senator from Minnesota.


                       Broadband Consumer Privacy

  Mr. FRANKEN. Mr. President, I rise today to talk about the effort by 
my Republican colleagues to gut critical consumer privacy protections. 
Last week, the Senate voted 50 to 48 to allow internet service 
providers such as Comcast, Verizon, and AT&T to freely collect, share, 
and sell its customers' private information. Later today, the House 
will vote on the same measure.
  Let's be clear what we are talking about here. From web browsing 
histories to app usage information, broadband providers have easy 
access to a whole lot of Americans' personal information. Comcast knows 
exactly what ails you when you visit WebMD's Symptom Checker or that 
you have recently experienced a major life event when you are browsing 
maternity clothes on target.com. They would like the ability to use or 
sell this information to target advertising toward you, and they would 
really like to use or sell this information without first having to ask 
your permission.
  Now, for me, the interests of consumers in Minnesota, Texas, and 
across our country have always come before those of big corporations. 
That is why I have long championed an internet that is open, 
accessible, and protects Americans' fundamental rights to privacy. For 
most Americans, I don't think those are controversial ideas.
  For example, I suggest that most if not all of us in the Senate 
believe in the importance of ensuring that Americans have access to 
affordable high-speed internet. It is one of those great issues on 
which Members on both sides of the aisle can agree. See, we all know 
that Americans' cable and broadband bills are too high. The Consumer 
Federation of America recently reported that the average American 
household spends about $2,700 a year for phone, TV, and Internet 
services. That is why it is so disappointing that instead of acting to 
make broadband more affordable and more accessible for Americans, my 
Republican colleagues have actually paved the way for multibillion-
dollar companies to make even more money off of their consumers by 
monetizing some of the most intimate details of their lives. Make no 
mistake about it, this is purely and simply a corporate handout at the 
expense of Americans' privacy.
  When the FCC voted to pass the broadband privacy rules, the broadband 
industry was quick to oppose and oppose loudly. In recent months, 
internet service providers have used their vast resources to lobby the 
FCC and my fellow lawmakers. If House Republicans heed their call, as 
my colleagues in the Senate have done, companies like Comcast, Verizon, 
and AT&T will be free to sell their customers' personal information to 
the highest bidder, and importantly, they will do so without the 
oversight or regulation of either the Federal Communications Commission 
or the Federal Trade Commission.
  For my part, I have long held that Americans have a fundamental right 
to privacy. We deserve both transparency and accountability from 
companies that have the capacity to trade on their private information. 
Should some people choose to leave their personal information in the 
hands of those companies, they certainly deserve to know that their 
information is being safeguarded to the greatest degree possible. I am 
going to keep fighting on behalf of consumers in Minnesota and across 
the country to secure these rights because I work for them and not the 
broadband industry.
  Thank you, Mr. President.
  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. CORKER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           The Nuclear Option

  Mr. CORKER. Mr. President, we find ourselves at an interesting point. 
Let me start by saying what a tremendous privilege it is to serve in 
this body. Every single day that I come to the building from where I 
live, I express that to myself--what a tremendous privilege it is for 
all of us to serve in this body, denoted by many as the greatest 
deliberative body in the world. Certainly, we find ourselves here in a 
place where we can effect so many things that not only affect our 
citizens but citizens across the world. What a privilege that is.
  The Presiding Officer and I have had numerous conversations in the 
past. I spent a life in business before coming to the Senate, and I 
know the Presiding Officer did a lot of unique things as well. At the 
age of 25, I was fortunate enough to build a business, starting with a 
small amount of money. It ended up operating all around the country. 
One of the things we did after every project--I built shopping centers 
around the country--is that we would get together and analyze the 
things we had done well and the things we had done not so well in an 
effort to become better. At the end of each year, we would sit down and 
look at our company, which was growing very rapidly, and try to analyze 
those things. Sometimes we would have setbacks, but generally speaking, 
the company continued to operate on an upward trend.
  What I find here is just the opposite. I have been here now a decade, 
and what we do is just the opposite of that. What we do is we continue 
a downward trend because the way the two parties operate with each 
other is when it gets to a point where there is something very critical 
that has to happen, the other side says, well, if they were in power, 
this is what they would do, so let's go ahead and do this ourselves. So 
what we have in the Senate, at least since I have been here in the last 
decade, is instead of an escalating situation where we continue to 
operate better and deal with these things in a more balanced way, what 
we do is we are on this continual downward trend.

[[Page 4921]]

  One of our younger Members mentioned the other day as we were 
discussing this--and I thought it was a great point--that what has 
happened in the Senate is that neither party has had the ability to 
withstand the pressure that is brought to them by their base in either 
party.
  I have seen that play out right now. What happens is their base puts 
pressure on, and we end up breaking the traditions of the Senate. We 
did it legislatively with the cloture vote being the scored vote by 
outside groups. So that is where we find ourselves.
  What is happening in our own caucus--I just realized over the 
weekend--is that we are now trying to figure out whom to blame. I heard 
a discussion last Wednesday that was totally divorced from reality as 
far as how we had gotten where we are today. I realized that we are 
getting ready to do some things here that will change the Senate 
dramatically. What is really happening is that both sides are trying to 
make sure history records that it was the other side that caused this 
to happen.
  We are now starting to see editorials in various publications--some 
that we Republicans read and some that Democrats read--to try to set 
the story straight. I about came out of my chair last Wednesday with 
regard to one of the explanations as to how we got where we are today. 
My guess is, today at lunch on the other side of the aisle, the same 
thing will be taking place. Obviously, on our side, it is the other 
side. On their side, it is our side.
  Let me go back to 2013. We had a breakdown taking place. President 
Obama was bringing forth some nominations, and it was right after he 
was elected for a second term. We went through the summer of 2013 with 
some of his nominees not getting cloture votes. I was called, as were a 
few other Senators, to make what we would call some tough votes. These 
were nominees whom we did not support. Cloture had again become the 
vote that people were scoring, but I and John McCain and Lamar 
Alexander and a few others were asked to make some votes that, 
candidly, were not very pleasant to keep us from getting to a place at 
which Senator Reid would impose the nuclear option.
  We made it through the summer, and we went into the fall. We had just 
confirmed a new circuit court judge for the D.C. Circuit, which is just 
below the Supreme Court relative to importance for lots of reasons. So 
we had a 4-to-4 balance on this circuit court. Senator Reid brought 
forth three more nominees, and they were not bad nominees. I think most 
people thought they were actually pretty decent nominees. But we did 
not want the balance of the D.C. Circuit to change; it was at 4-to-4.
  We know that a lot of administrative rulings that are relative to the 
administration take place in the D.C. court, so we made the argument 
that there were already enough judges there and that they did not have 
a very good case. It was the same argument, by the way, that Democrats 
made back in 2006 when Bush was also trying to make some nominations. 
We do the same to each other. So we ended up filibustering those three 
nominees.
  What we thought was going to take place was a negotiation on how many 
judges would actually go when all of a sudden Senator Reid, out of the 
blue, with some of his Members not realizing what had happened, did the 
nuclear option. He ruled and called upon the person sitting in the 
Chair and the Parliamentarian. All of a sudden, we destroyed what had 
been the case of it taking 60 votes to move beyond to an actual vote on 
the nominee. I was livid.
  Somebody said the other day that that was fine and that we had just 
gotten to where we had wanted to be. Are you kidding me? We were livid. 
We were livid that on some circuit court nominees, Senator Reid had 
pulled the nuclear option.
  I will tell you this: There were days--not days, months--where people 
who had normally worked with people on the other side of the aisle just 
kind of shut down. It was hard to believe the nuclear option had been 
invoked.
  Last Wednesday, somebody acted like it was no big deal, that it had 
just gotten us back to where we had always been. The fact is that we 
have not used filibusters much--years ago. The fact is that we are 
using them a lot today. Look, this was a big deal.
  Now we find ourselves in a situation in which we are getting ready to 
take the last step, if you will, on nominations. Let's face it: We have 
a nominee in this judge who is on the floor who is really beyond 
reproach.
  I realize my friends on the other side of the aisle have pressures. I 
have talked to some of them, and I respect them. I understand that 
their base is saying that because of what we did last year. Remember, 
it had been an hour since the great Justice passed away, and we had 
already declared we were not going to allow another Justice to be 
confirmed until after the Presidential race. It was a pretty audacious 
move, let's face it, and obviously it created some hard feelings on the 
other side of the aisle after the election was determined.
  Within their base, many of them are saying they are going to invoke 
the filibuster here. Our leadership is saying: If that happens, then we 
ourselves have to invoke the nuclear option on the Supreme Court 
Justice.
  We understand where this is going. I do not know what has been said 
on the floor other than during the hearings, but let's face it: One 
side is reacting to their base, to their pressure. They are having ads 
run against them if they are even considering voting to move beyond the 
cloture vote to an actual vote on the nominee. On our side, obviously, 
we are in a situation in which, if that happens, then our leader is 
going to call the nuclear option.
  By the way, everybody says: Oh, we are never going to do it on 
legislation. Come on. Let me go back to that for a minute.
  Back in 2010, the Democrats passed a healthcare bill with 60 votes. 
Then there was an election, and it took them down below 60 votes. They 
just needed to fix a little element on the healthcare bill with a 
reconciliation bill, and the Republicans went crazy over that. How many 
times have we talked about their passing this healthcare bill with 
reconciliation? It has been going on for 7 years. Now we are in the 
driver's seat. We have the majority. We are writing an entire bill 
through reconciliation because we understand the power of being able to 
do something with 51 votes. I understand. So what we do is we just keep 
upping the ante with each other. Are you kidding me?
  If we continue on the path we are on right now, the very next time 
there is a legislative proposal that one side of the aisle feels is so 
important, they cannot let their base down, the pressure builds, then 
we are going to invoke the nuclear option on a legislative piece. That 
is what will happen. Somebody will do it. Somebody will say that if 
they were in control, they would do it. That is the way trust has 
gotten around here. So we ought to do it because this is our 
opportunity to really change history.
  Look, I hope that before we move to the place that we all know we are 
going--I do not think anybody here would deny that pressures have 
built. Let's face it. If we do not have respect for the institution we 
serve and for ourselves, no one else will. Who will? These people know 
what we are getting ready to do to this place. For us to act like if we 
do it here, there is no way we would ever do it on a legislative 
piece--let me tell you this: Two years ago, after Senator Reid did what 
he did--a friend of mine and somebody I worked very closely with, I 
think most people know it took me a while to get back to normal with 
him. Two years ago, there would not have been a single Republican in 
our caucus who would have even considered voting for the nuclear 
option. As a matter of fact, we had discussions about changing it back. 
Then the election occurred, and we decided not to do that.
  What it looks like to me is that there is a whole host of Republican 
Senators who are willing to do that today. Everyone knows that on the 
other side of the aisle--maybe everyone; I don't know. Yet to say that 
we will never get to the point at which we will not change a 
legislative piece--give me a

[[Page 4922]]

break. Somebody is not living in reality, because we each continue to 
take the other down.
  Again, I do not really care how history writes it; I am going to tell 
you how I am going to write it. Neither side of the aisle has had the 
maturity or the willingness to stand up to the pressures and cause this 
institution to operate in the way it should--neither side of the aisle. 
As for anybody who tries to say that one side of the aisle is worse 
than the other, come on. It takes two of us to take the institution to 
the place at which we are getting ready to take it next week. That is 
my history. I have been here 10 years. I have watched it. Neither side 
of the aisle has clean hands. We have one side. They have a decision to 
make. Are they really going to filibuster this judge? Let's face it. If 
you go back and look at the principles of the Gang of 14 that were put 
in place back in the 2000s, when both sides came together and said: We 
are not going to do the nuclear option as long as a judge meets these 
criteria--this judge meets that criteria. It is clear. By the way, I am 
not criticizing; I am just observing.
  We both have pressures. We know that if a filibuster takes place--and 
you will know that immediately; of course, it would be after a few 
filibuster votes just to show that it cannot happen--the leader on this 
side is going to invoke the nuclear option. You all know that. I do not 
know if people are saying that it could happen, but of course that is 
what is going to happen. And then the very next time another big 
legislative issue comes up, the same thing is going to happen unless we 
have the ability to sit down and talk about this. I would love to do it 
out on the floor. Typically, we do not do those kinds of things because 
things get out of control when we talk about things honestly here on 
the floor, but I would like for us to do that. I would love for us to 
have maybe a 4-hour discussion about what we are getting ready to do 
here in the Senate. To me, that would be a healthy thing.
  I think all of these staffers who work up here, whom we respect, know 
exactly what is getting ready to happen here in the Senate.
  I think we owe this to people who are getting ready to run for the 
Senate or maybe to people who are thinking about running for 
reelection. We should go ahead and have this discussion so that they 
will know whether they are running for a 6-year House term--a 6-year 
House term because we do not have the maturity, because we do not trust 
each other, because we are on this constantly deescalating deal and our 
leaders do not talk to each other and fight and all of those kinds of 
things happen, because we are getting ready to take this institution to 
a place that I do not think many of us are going to be proud of. But, 
again, for the people who are thinking about running for the Senate, 
let's go ahead and clear it. Let's have a discussion about this 
legislative issue so that people will know, if they are seeking 
election to the U.S. Senate, that they are, in essence, going to sign 
up, possibly, for a 6-year House term.
  I am at a place in my Senate life where I have tremendous respect for 
the people with whom I have served. Every day I come here, I look at 
the things I have the ability to affect as one Senator. I look at that 
with such honor, to be able to be in a body that debates these kinds of 
things and affects people in the way we do. What an honor it is to be 
here. I am here with no malice.
  I am here, though, at a time when I see what is getting ready to 
happen without a lot of discussion, and I hope that somehow or another, 
we will have the ability to avoid what I see as something that is very, 
very detrimental to the Senate and, in the process, very detrimental to 
our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. GARDNER. Mr. President, I understand there is a time agreement on 
the recess before lunch.
  I ask unanimous consent that I be allowed to finish and complete my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of Neil Gorsuch

  Mr. GARDNER. Mr. President, I wanted to come to the floor again to 
express my strong support for a very mainstream, well-qualified nominee 
for the Supreme Court, Judge Neil Gorsuch.
  Last week, this country got to watch the Senate Judiciary Committee 
carry out days of hearings that questioned and probed Judge Gorsuch's 
legal approach, that questioned his temperament to the bench, his 
suitability to be on our Nation's High Court. I believe every member of 
the Senate Judiciary Committee had at least an hour to question Judge 
Gorsuch, to provide lengthy opening statements, to have an extended 
period of time to have a back-and-forth with Judge Gorsuch in order to 
go over his judicial philosophy--his approach--that he would take with 
him from the Tenth Circuit Court to the Nation's High Court.
  A number of interest groups and personal witnesses were talking about 
whether or not they believe Judge Gorsuch is qualified for the bench, 
and some were highly favorable and spoke very highly of him, and others 
opposed his confirmation. That is what is great about this country--to 
be able to come before our Congress, our government, and to testify for 
or against somebody who will be in that third important branch of 
government, the judicial branch. It is incredibly inspiring to watch 
this process unfold. There were student groups around the country, 
classes and teachers, who were watching the confirmation hearing as a 
project, as an educational experience, as a lesson in civics, 
democracy, and government.
  I mentioned, of course, that Judge Gorsuch is a judge on the Tenth 
Circuit Court today. He is a fourth generation Coloradan. He was 
confirmed to that position in 2006, 11 years ago, unanimously. He was 
confirmed to the Tenth Circuit Court 11 years ago unanimously. Based on 
some of the comments we have heard opposing Judge Gorsuch, it is hard 
to believe that anybody would have supported him unanimously 11 years 
ago--based on the things we have heard from the other side of the aisle 
about him. Judge Gorsuch was confirmed unanimously by 12 current 
Democratic Senators who did not oppose his confirmation 11 years ago 
and who serve in this body today.
  Twelve Democratic Senators serve in this Chamber today who agreed 
with his confirmation or didn't oppose his confirmation 11 years ago. 
In fact, not a single Democrat opposed his nomination--not a single 
one, and his nomination was unanimous--not Minority Leader Schumer, not 
Senator Leahy, not Senator Feinstein, not Senator Durbin, not Senator 
Cantwell, not Senator Carper, not Senator Menendez, not Senator Murray, 
not Senator Nelson, not Senator Reid, not Senator Stabenow, and not 
Senator Wyden. Judge Gorsuch's nomination also was not opposed by then-
Senator Barack Obama. It was not opposed by then-Senator Joe Biden, and 
it was not opposed by then-Senator Hillary Clinton.
  This level of support for the other party's nomination is almost 
unheard of in today's political climate. But now, these very same 
colleagues are vowing to break 230 years of Senate tradition, to 
dispense with 230 years of precedent, and to join a partisan filibuster 
of a nominee who has the right judicial temperament and holds 
mainstream views that are supported by the Constitution.
  Throughout the confirmation hearing process, we heard Judge Gorsuch 
talk about the over 2,000 opinions that he was a part of--2,700 
decisions that he was a part of--and I believe he testified before the 
committee that he joined in the majority in 97 percent of those 
opinions. That is somebody who sounds to me like the person who could 
have received the unanimous support of the Senate--who did receive the 
unanimous support of the Senate, including colleagues who serve with us 
today.
  But, unfortunately, across the aisle, we still haven't heard a reason 
articulated--a compelling rationale--for why this supremely qualified 
nominee should be opposed. Sometimes they will reference a letter from 
a law student at the University of Colorado, or

[[Page 4923]]

perhaps they will find one case out of the 2,700 cases that tugs at the 
heartstrings but not at the law and try to hang their hat on that 
decision as to why they should oppose Judge Gorsuch. To use a baseball 
analogy, it is a little bit like a batting average. You would think 
that a professional baseball player that had a 400 batting average was 
a pretty doggone good baseball player, but that would mean they missed 
the ball a heck of a lot much of the time. It seems to me the argument 
they are making with Judge Gorsuch is that unless he had a perfect 
batting average and never missed a single pitch and had a hit every 
single time--that is the standard, apparently, that our colleagues are 
looking for. It is a standard that no one has ever met in this country 
before.
  We are looking for mainstream judges with the right temperament and 
the right philosophy, and that is what Judge Gorsuch has proven time 
and again in the Tenth Circuit Court--that temperament that we need on 
the highest Court.
  Our colleagues on the other side of the aisle should abandon their 
threats of a filibuster and allow an up-or-down vote to occur for Judge 
Gorsuch. It is what Senate tradition and precedent requires.
  Today, though, I thought it important to talk about Judge Gorsuch's 
exceptionally strong record on religious liberty. Judge Gorsuch is 
perhaps widely known for his participation in the Tenth Circuit's Hobby 
Lobby case, a decision which involved the protections afforded by the 
Religious Freedom and Restoration Act and which was ultimately affirmed 
by the Supreme Court. In his concurrence, Judge Gorsuch made a number 
of telling pronouncements regarding religious liberty. Regarding the 
case, he wrote that the law in question requires the owners of Hobby 
Lobby to ``violate their religious faith by forcing them to lend an 
impermissible degree of assistance to conduct their religion teaches to 
be gravely wrong.''
  Let me say that again. In Hobby Lobby, Judge Gorsuch wrote that the 
law requires the owners of Hobby Lobby to ``violate their religious 
faith by forcing them to lend an impermissible degree of assistance to 
conduct their religion teaches to be gravely wrong.''
  In determining which religious beliefs are entitled to protection, 
Judge Gorsuch said it doesn't matter if the beliefs are contestable or 
even offensive. It only matters if they are sincerely held--if they are 
sincerely held.
  He went on to stress that ``it is not the place of courts of law to 
question the correctness or the consistency of tenets of religious 
faith, only to protect the exercise of faith.''
  It is these same constitutional principles of religious liberty that 
Judge Gorsuch has also used to protect religious minorities and prison 
inmates.
  In Yellowbear v. Lampert, Judge Gorsuch ruled that a Native American 
prisoner was entitled to the use of a prison sweat lodge under Federal 
law.
  Judge Gorsuch went on to stress that while prisoners give up many 
liberties, the freedom to sincerely express their religion is not one 
of them. His reasoning was later adopted by the Supreme Court to extend 
similar religious liberty protections to a Muslim prisoner. Judge 
Sotomayor even quoted the opinion of Judge Gorsuch in her concurrence 
in that case.
  From his opinions, it is clear that Judge Gorsuch is a mainstream 
nominee who understands the importance of putting personal beliefs 
aside and applying the law as written. This is why George Washington 
University Law School professor Jonathan Turley argued that Judge 
Gorsuch shouldn't be penalized for his past opinions. As he said, ``the 
jurisprudence reflect, not surprisingly, a jurist who crafts his 
decisions very close to the text of a statute and, in my view, that is 
no vice for a federal judge.''
  It is for the reasons I have cited today and for the reasons we have 
seen over the past week that I am certain Judge Gorsuch will make 
Colorado proud and that his decisions will have a positive impact on 
the Supreme Court and this country for generations to come.
  I look forward to working with my distinguished colleagues on both 
sides of the aisle to expeditiously confirm his nomination and to make 
sure that we uphold the best traditions and the precedent of this 
Senate.
  Mr. President, thank you.
  I yield the floor.

                          ____________________