[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[House]
[Pages 5251-5257]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1945
           CONFIRMATION OF NEIL GORSUCH TO THE SUPREME COURT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2017, the gentlewoman from the District of Columbia (Ms. 
Norton) is recognized for 60 minutes as the designee of the minority 
leader.
  Ms. NORTON. Mr. Speaker, I am very pleased to come to the floor this 
evening to coanchor the Congressional Black Caucus hour about the 
present nominee to the Supreme Court, Neil Gorsuch.
  I am very pleased that my good friend from Texas, Representative 
Sheila Jackson Lee, a distinguished member of the Judiciary Committee, 
has agreed to coanchor this hour with me.
  Mr. Speaker, I am chair of the working group for the Congressional 
Black Caucus that looks at nominees for Federal courts. So, I have 
buried myself in the record of Neil Gorsuch and wrote the testimony 
that we submitted to the Senate.
  What I will do is speak for a few minutes generally about the 
nominee, and then I will go to my good friend from Texas. I am very 
pleased that another good friend, Mr. Don Payne, Jr., is here from the 
State of New Jersey, and we will hear from him as well.
  Now, just as the Congress has been polarized so has the court been 
polarized, if you look at the liberal and conservative blocks in that 
way. But, of course, since the death of Supreme Court Justice Antonin 
Scalia, there has been a 4-4 split. Justice Anthony Kennedy, who is 
still a Member of the Court is not always a predictable conservative, 
though he tends to vote with the conservatives.
  What has happened in the Senate is entirely predictable, at least 
today. In an unprecedented move, the Senate refused to hear from or 
even meet the nominee of President Obama. There was almost a full year, 
yet the Senate refused to take up that nominee.
  What happened today was not payback. If you listened to the 
testimony, you would see that there are good reasons why the Senate 
Democrats today decided to filibuster Judge Gorsuch.
  I want to begin because I am speaking for the Congressional Black 
Caucus with his views as they affect African-Americans and, by 
definition, others who depend upon the antidiscrimination laws and the 
Constitution of the United States.
  There is more than enough in the record on race related matters from 
Judge Gorsuch's 10th Circuit service to oppose his nomination. But let 
me focus for a moment on his pre-court service, which seems to have 
predicted what he would do in the court of appeals.
  He was a principal deputy to the principal who had jurisdiction over 
the Civil Rights Division. We have to pay attention to the fact that 
the inspector general, during Judge Gorsuch's time in the Justice 
Department, found that the Civil Rights Division, where he had some 
oversight, had been politicized in order to stifle civil rights 
enforcement. As you might imagine, the Congressional Black Caucus had 
to pay attention to that finding by a neutral investigator.
  We also are very concerned about how Gorsuch is a Justice Department 
Official treated a Georgia election law. As we know, election laws from 
the South--of course, there has been a historic decision that has made 
the Voting Rights Act far less effective than it was--but certainly 
during most of the time of the Act, Southern states had to go through 
the Justice Department to see if the laws in southern States, that had 
kept African-Americans from voting for reasons of race, to see if newly 
enacted laws affecting voting rights, in fact, discriminated against 
African-Americans and others or not.
  A Georgia election law was found by the Civil Rights Division to be 
discriminatory. Judge Gorsuch was part of the team that overturned the 
Civil Rights Division. That was, of course, challenged in the courts. 
And the ruling of the Justice Department that pre-cleared the law--that 
said it was all right to go ahead with this law that the Civil Rights 
Division had found discriminated against Blacks--the court overturned 
that finding of the Justice Department.
  It used quite pregnant language. The District Court said that the 
Georgia election law was reminiscent of Jim Crow laws. Those words have 
special meaning in our history--and I speak not here about African-
Americans alone. But if you have found yourself in the minority on any 
issue--it could be a First Amendment issue, it could be a criminal 
justice issue--you want a court that will protect your rights, not only 
the rights of the majority.
  But this nominee has shown a hostility to litigation in the courts 
that have been the primary ways we have vindicated constitutional 
rights and the rights of minorities of every kind. In a telling op-ed, 
this nominee, Mr. Gorsuch, said: ``American liberals have become 
addicted to the courtroom, relying on judges and lawyers rather than 
elected leaders and the ballot box, as the primary means of effecting 
their social agenda.''
  What? What else was there? The majority had enforced laws against the 
minority--in this case, African-Americans. He conceded that Brown v. 
Board of Education the school desegregation decision. But he went on to 
say that liberals should ``kick their addiction'' to constitutional 
litigation. This is a man who wants to get on the Court whose most 
important mission is constitutional litigation.
  I submit to you that even the Justice who epitomized conservatism, 
Justice Scalia, never showed hostility coming to Court to vindicate the 
rights of people who felt themselves to be offended. So in that 
respect, I think it is clear that--and this is a very important 
respect--Judge Gorsuch is more conservative than Justice Scalia was on 
the Court.

[[Page 5252]]

  Nothing could be more concerning than a Justice who says: Look, the 
preferred way to vindicate your rights is the political process.
  Who would disagree with that?
  It is the failure of the political process that sends people to the 
court.
  It shows, it seems to me, little appreciation for the Bill of Rights 
itself. The entire Bill of Rights is about the rights of the minority. 
And again, the word ``minority'' means any of us could be in that 
minority at any given point. You could be in that minority when it 
comes to religious rights. You could be in that minority because of a 
search and seizure case. You could be in that minority because of a 
free speech case. And, yes, you could be in that minority because you 
are part of a classic minority group.
  That is why the 13th, 14th, and 15th Amendments were added to the 
Bill of Rights. The Framers, of course, shared Gorsuch's preference for 
the political process. A Constitution is a, small D, democratic 
document. But they created a separation of powers government knowing 
full well that majoritarian democracy sometimes treads on the rights of 
minorities. That is why we have the Supreme Court of the United States 
which Mr. Gorsuch seeks a seat.
  Mr. Speaker, before I go on to discuss some cases, I yield to the 
gentleman from New Jersey, (Mr. Payne), my good friend from New 
Jersey's 10th Congressional District.
  Mr. PAYNE. Mr. Speaker, I appreciate the gentlewoman from the 
District of Columbia's leadership throughout the years on many of these 
issues.
  Mr. Speaker, confirmation of Judge Gorsuch to the Supreme Court would 
be detrimental to the interests of working Americans, particularly 
African-Americans and other vulnerable communities.
  Just as President Trump's agenda prioritizes special interests, Judge 
Gorsuch's record shows that he favors powerful interests and businesses 
over regular people. His hostility to class action lawsuits would 
threaten protections for workers, especially African-Americans and 
other minorities.
  What is particularly of concern to me is Gorsuch's opinion in what is 
known as the ``frozen trucker'' case. Gorsuch ruled against an African-
American truck driver who, after breaking down in freezing weather, 
ignored his supervisor by unhitching the broken trailer from his truck 
and driving away in search of assistance.
  In freezing cold weather, the truck driver is nearly freezing to 
death. He has a truck that won't work with frozen brakes. They are 
telling him to move--to use the truck and drive away. If he takes his 
truck with frozen brakes, the harm potentially to other citizens is 
great. An 18-wheeler truck with no brakes, that doesn't seem logical.
  Gorsuch believed that the employee should have followed the orders, 
even though the driver's life was at risk. Gorsuch was the sole vote 
against the driver, who was put in the position of having to choose 
between freezing to death, driving an unsafe vehicle and endangering 
the lives of others, or unhitching his trailer and seeking help.

                              {time}  2000

  Judge Gorsuch's record is also troubling when it comes to issues 
around police accountability. Gorsuch believes in granting police 
qualified immunity, which protects law enforcement from being held 
liable for any excessive use of force. Now, this is deeply concerning 
given the widespread use of excessive force against African Americans 
by police and the increasing number of police shooting deaths of 
unarmed African Americans.
  This is particularly concerning to me. I come from Newark, New 
Jersey, and the police department is being overseen by a Federal 
monitor following a 2014 review that determined officers repeatedly 
violated citizens' civil rights.
  Additionally, Gorsuch's record on civil rights is deeply troubling. 
The National Bar Association, our Nation's oldest and largest national 
association of predominantly African-American lawyers and judges, notes 
that Gorsuch has shown a strong tendency to be biased in favor of 
powerful corporate interests and unapologetically biased against 
workers and victims of civil and human rights violations.
  The confirmation of Gorsuch would threaten the protections and the 
rights of African Americans. Gorsuch is in lockstep with the President, 
favoring the wealthy over ordinary Americans. This is why I oppose his 
confirmation.
  Even those who disagree that Gorsuch would bring a biased view to the 
Court should see the necessity in delaying consideration of Gorsuch, 
given the ongoing controversy over the Trump-Russia connection. It is 
inappropriate to rush forward with a lifetime appointment made by a 
President who is under investigation by the FBI and trapped in scandal. 
The Senate should delay consideration of Gorsuch until an independent 
commission investigates Russia's election interference and any ties 
between Trump and Russia.
  Let me just say that Judge Gorsuch has put on a very good show in 
front of the Senate, seeming to be very confident and thoughtful, but 
never really answering a lot of the questions that were asked of him.
  We feel that this jurist should not sit on the highest court in the 
land because of the bias that he has shown against working people and 
regular citizens in this country. Justice is supposed to be blind, but 
it seems that this jurist has a bias against the American working class 
person, the normal Joe, the minority looking for an equal break, and to 
have him sit on the highest court in the land would be a grave, grave 
mistake.
  Ms. NORTON. Mr. Speaker, I thank the gentleman from New Jersey (Mr. 
Payne) for those cogent remarks.
  I yield to the gentlewoman from Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. Mr. Speaker, I thank the gentleman from New Jersey 
(Mr. Payne) for his very careful scrutiny of Judge Gorsuch and for 
participating with us tonight.
  It gives me great privilege to join with the distinguished 
Congresswoman from the District of Columbia (Ms. Norton) to be able to 
really articulate what is at stake with the potential for Gorsuch to be 
the ninth member of the United States Supreme Court.
  As I do that, allow me to offer a personal note of sympathy to my 
hometown, to the Constable's Office, in the shooting and death of Chief 
Clinton Greenwood, to his family for his tragic death, and to 
acknowledge the service that he has given in many, many ways as a law 
enforcement officer and attorney committed to the implementation of the 
law. My sympathy goes to his family and to his colleagues.
  I also want to acknowledge the tragedy in Russia and the loss of 
life, which indicates how close all of us are around the world and that 
we should be committed to the fight against terrorism, wherever it may 
be.
  If I might, I applaud the Democratic Senators, in this instance, in 
the other body to express my appreciation for taking a fight that many 
would be critical of. Now, that fight I don't put in the context of 
politics or partisanship. I have not heard one Senator who is opposing 
Judge Gorsuch and is not supporting or participating in the filibuster 
mention one word about the political elections or the process that 
occurred in 2016.
  I have heard truly deliberative analysis that I think is important to 
recount, Congresswoman Norton. I am delighted with the gentlewoman from 
the District of Columbia and the distinguished leadership that the 
gentlewoman gives us as the chair of the Judicial Nominating Committee 
for the Congressional Black Caucus, a position that the gentlewoman has 
served ably for years and has resulted in some outstanding jurists 
because of her leadership that the Congressional Black Caucus has been 
able to advocate for.
  During the tenure of President Barack Obama, as the gentlewoman from 
the District of Columbia worked very closely on his nominees, 
distinguished jurists have been placed on the Federal bench and in the 
Supreme Court to no one's complaint. In addition, President Obama 
followed protocol and consulted with Members of the other party in the 
United States Senate.

[[Page 5253]]

  Unfortunately, we are now ending this process with the nomination of 
Judge Gorsuch by the President of the United States, this President who 
announced it as a campaign trick by issuing a list of individuals that 
he had not vetted but had been given by those who were bartering: This 
is a list, and you will have our support in the election.
  My fear is that that is not the context in which distinguished 
jurists should be appointed to the Supreme Court. There is no doubt 
that this was bait for voters to be able to fall in the column of this 
particular individual who now holds the office.
  So no criticism should go to my colleagues in the other body who 
realize that this is about life-or-death matters. This is about the 
millions of Americans who will suffer at the hands of Judge Gorsuch on 
the United States Supreme Court. I am more convinced now.
  I am grateful for their debate because, as they have debated in a 
very detailed, passionate manner, I hope that they have been able to 
provide light and education to Americans who may be watching and trying 
to understand the ``no'' vote and the ``yes'' vote, the filibuster, 
that it is not in any way anyone's political desire to not have the 
Supreme Court working on behalf of the American people, adhering to the 
high calling and ultimate judgment of the Supreme Court, which is to 
recognize settled law and to be able to respect the rights of all 
Americans and not skew this Court to the point that some Americans will 
be left out in the hall of justice.
  Why should my friends in the other body who have taken this 
courageous stand yield to false criticism and pontificating and 
grandstanding about they have never seen this before, the other persons 
who have voted ``yes'' have never seen this before, this is outrageous, 
a qualified individual.
  I have no angst against the person. He has ascended to the Tenth 
Circuit Court of Appeals. He has colleagues who respect him. He showed 
himself respectful before the Senate Judiciary Committee; in fact, some 
called him charming and engaging. Again, I make mention of the fact 
that this is about life and death.
  So let me put in the context a very important statement made by 
Amanda Bronstad in the National Law Journal article, February 28, 2017: 
``Neil Gorsuch `Piercingly Textual' and Often Pro-Defense on Class 
Actions and Arbitration.''
  ``According to a careful review of Gorsuch's decisions, his 
textualist approach, more than ideology, is the common theme of his 
opinions on class actions, arbitration, and mass torts. And yet, though 
some of his decisions have favored plaintiffs, Gorsuch's careful 
judicial reasoning and parsing of statutory language has more often led 
him to side with the defense,'' leaving most others out in the cold.
  In addition, Judge Gorsuch has a disdain for those who seek to 
redress their civil rights and other remedies of law.
  In a 2015 article published in the conservative National Review, 
these are his words:
  ``American liberals have been addicted to the courtroom, relying on 
judges and lawyers rather than elected leaders and the ballot box, as 
the primary means of effecting their social agenda on everything from 
gay marriage to assisted suicide to the use of vouchers for private 
school education.
  ``This overweening addiction to the courtroom as the place to debate 
social policy is bad for the country and bad for the judiciary.''
  Well, Judge Gorsuch, let me tell you a thing or two. I grew up in a 
segregated America. At my birth, African Americans were treated 
unequally in terms of education as well as accommodations, as well as 
the right to vote. We couldn't even march in some places in the Deep 
South without being shot at, losing our lives, being hosed at, and dogs 
making sure that our young kids were intimidated and even bitten.
  Maybe he fails to remember the four little girls in the 16th Street 
Baptist Church in Birmingham, called the bombing in Birmingham, in 
1963. Maybe he fails to remember the tragedy of the Edmond Pettus 
Bridge or Jimmie Lee Jackson shot dead in the streets of Selma. Or 
maybe he doesn't understand Brown v. Board of Education, Roe v. Wade, 
Miranda v. Arizona, Gideon v. Wainwright, New York Times v. Sullivan, 
Obergefell v. Hodges, and Shelby County v. Holder. These cases are 
dealing with issues such as the right to vote, the right to an equal 
education, the Fourth Amendment interpretation of the right to be 
protected from unreasonable search and seizure, and the First Amendment 
right to freedom of the press.

                              {time}  2015

  Maybe he doesn't understand that these cases have brought to America 
the image and the recognition of justice. It doesn't seem that he has 
that interpretation.
  So I just want to read another interpretation of his record by the 
Leadership Conference on Civil and Human Rights.
  ``Judge Gorsuch's decade-long record on the Federal bench, as well as 
his writings, speeches, and activities throughout his career, 
demonstrate he is a judge with an agenda.''
  What a frightening proposition, that he goes to the Supreme Court, 
having given the impression that he is just an open book, genuinely 
concerned.
  ``His frequent dissents and concurrences show he is out of the main 
stream of legal thought and unwilling to accept the constructs of 
binding precedent and stare decisis when they dictate results he 
disfavors.''
  Stare decisis is something that we learned in law school, but that is 
a very appropriate and important basis of decisions.
  ``If confirmed to the Supreme Court, which is closely divided on many 
critical issues, Judge Gorsuch would tip the balance in a direction 
that would undermine many of our core rights and legal protections. He 
lacks the impartiality and independence the American people expect and 
deserve from the Federal bench.''
  Let me make one or two other points that I think are so very 
important. I hope to put my entire statement into the Record, and we 
will be engaging, and I know that my colleague will have further 
comments, but I want to make sure that we point back to those who are 
criticizing a very courageous stance because they are taking the 
stance, my friends in the other body, in the backdrop of all these 
accolades and how genuine and charming he is. I have said that before.
  But he is going against the backdrop of protocol--no engagement with 
the Democratic Senators, no adherence to the President, when he was 
President-elect, who pledged to the Nation that he would be the 
President of all Americans--because it rings hollow to tens of millions 
of Americans.
  My colleague from New Jersey mentioned the truck driver story. It was 
a 2-1 decision. He was dissenting. No person with common sense and 
knowledge of the law would reject the understanding that this 
individual acted not against the instructions of his employer in 
leaving a truck that--by the way, the cargo area of the truck--nothing 
was violated, no product was taken, with bad brakes, and in jeopardy of 
his life, if he had left the cargo portion of the truck and tried to 
drive away on this frozen night, after waiting 3 hours in a cabin where 
he was freezing to death, he would have died.
  Yet Judge Gorsuch did not think that was important enough to rule in 
favor of this African-American who had a 2-1 decision. He thought that 
the employer could fire him; and there was no factual basis for that, 
that he did something when it was a balmy day, and he just went off 
recklessly because he didn't want to be bothered or he was tired or he 
was hungry. That was not the case.
  That is cruel, Judge Gorsuch. Your conservative ideology and 
professed judicial philosophy of original intent has harmed many.
  He is not an unbiased judge. At best, he is a younger, more charming 
version of Judge Robert Bork, who was rejected 58-42 by the Senate in 
1987. So he has a history of ruling against people who have used the 
legal system to hold government officials accountable.

[[Page 5254]]

  The gentleman who was fired was fired, I think, 7 years ago, and has 
not been able to find a job yet.
  By the way, the truck's heater didn't work.
  His words were--Judge Gorsuch dissented and said the employee should 
have followed orders, even at the risk of serious injury.
  In NLRB v. Community Health Services, Judge Gorsuch again dissented 
from a majority opinion that found in favor of employees, where a 
hospital was required to award back pay to 13 employees whose hours had 
been reduced, in violation of the National Labor Relations Act.
  As the ranking member on the Subcommittee on Crime, Terrorism, 
Homeland Security and Investigations, we are trying to find the right 
kind of balance between police and community. But Judge Gorsuch has 
ruled that there is no reason to give police any punishment, such as 
the case when an individual used a stun gun and the victim died.
  Judge Gorsuch's judicial record on police accountability minimized 
the Fourth Amendment protections against warrantless search and 
seizure.
  I will continue my discussions of Judge Gorsuch. I will come back 
again and finish my comments on issues dealing with, again, civil 
rights and the rights of women.
  I am delighted to cohost and comanage this hour dealing with the 
nomination of Judge Gorsuch.
  Ms. NORTON. I thank my friend for her comments.
  Mr. Speaker, I was the chair, before I came to Congress, in another 
life, of the Equal Employment Opportunity Commission, dealing with job 
discrimination in our country. I was interested, in my own research on 
Judge Gorsuch to find that he has written more opinions in 
discrimination cases than other cases.
  Now, the Rocky Mountain States of the Tenth Circuit do not have large 
numbers of African Americans, but the way in which the Supreme Court 
has interpreted antidiscrimination laws doesn't, in fact, basically 
differ from one group.
  The EEOC also has jurisdiction over disability discrimination. For 
example, the Court has always indicated that anti-discrimination laws 
should be read broadly in order to capture discrimination. Whether we 
are talking about the antidiscrimination laws as they affect women or 
racial or ethnic minorities or religious minorities, the Supreme Court 
simply will not read these laws narrowly.
  But that is not how Judge Gorsuch has operated on the Tenth Circuit. 
He has given a cramped interpretation of the antidiscrimination laws, 
and yet it is interesting to note that, when there is a claim of 
discrimination based on religion, he gives a very broad interpretation.
  He is perhaps best known for his opinion in the so-called Hobby Lobby 
case. This is the case in which he found that a closely held 
corporation was within its rights when it refused to adopt the 
Affordable Health Care Act's mandate that women and men be granted 
contraceptive protection as a part of health insurance. Judge Gorsuch 
found that this was a violation of the rights of the closely held 
corporation, the first time there has been such a holding.
  It is very interesting also to note that right after that, there was 
a case called Little Sisters of the Poor. Now, the Little Sisters of 
the Poor, unlike the closely held corporation, is, in fact, a religious 
organization, and they too said they do not wish to have contraception 
be a part of any of the institutions that they govern.
  Remember, we had a religious organization there, not a closely held 
corporation. The Court found that, to accommodate both women and the 
religious scruples of the Little Sisters, the Little Sisters had only 
to acknowledge that they did not desire to enforce the contraceptive 
mandate, and then it would be taken away from them and would be done by 
a third party, by the government. That was allowed as a way to 
accommodate the Little Sisters. Judge Gorsuch opposed that and wrote an 
opposing opinion.
  So to see this difference in the way he treats discrimination, 
reading antidiscrimination statutes affecting minorities of every kind 
in a narrow fashion; when he finds religious discrimination by statute, 
he reads those statutes very broadly.
  His technical rulings are of statutes that the Supreme Court has 
broadly interpreted, would have made these statutes worthless. You 
simply cannot enforce antidiscrimination statutes by treating them as 
though they were technical statutes that, for example, govern financial 
dealings. And yet this nominee has brought that kind of interpretation 
of antidiscrimination statutes.
  I was shocked at his holding in Hwang v. Kansas State University, 
which illustrates what I am saying. There, a professor brought a case 
because her university had refused to follow the guidance of the Equal 
Employment Opportunity Commission. She was entitled to a 6-month leave 
to accommodate her condition. This is a statute involving disability 
rights. She took that 6-month leave and asked to have it extended until 
a day certain, not indefinitely, to recover further from cancer and a 
bone marrow transplant.
  Now, the EEOC guidance said that an additional leave beyond 6 months 
was possible as an accommodation to an employee unless there was an 
undue hardship. There was no undue hardship.
  But this nominee, Judge Gorsuch, found that the ``6 months was more 
than enough to comply with the law in nearly every case''--yes, in 
nearly every case--but the EEOC guidance said that there obviously 
could be extensions. I can think of no case that would call for more of 
an extension than a professor who said: I will come back on a date 
certain, but I have a cancer diagnosis, and I have had a bone marrow 
transplant.
  I hope that that case would give some pause to anyone who hears about 
it. The nominee has been quite consistent in how he has ruled in the 
Tenth Circuit, which gives every reason to believe that he is going to 
carry that consistency to the Supreme Court.
  I was very interested to see how he ruled on a Planned Parenthood 
case where the Governor of Utah had seen these notorious false videos 
that purported to show the sale of fetal tissue.

                              {time}  2030

  Now, those videos--every court that has considered those videos have 
found that they had nothing to do with Planned Parenthood and what it 
actually did. So this matter has been litigated in a number of 
circuits. It was litigated in the 10th Circuit in a case called Planned 
Parenthood Association of Utah v. Herbert; and the 10th Circuit found, 
as the other circuits have, that these videos were not, in fact, 
associated with Planned Parenthood--the false videos that surfaced.
  Interestingly, the court, on rehearing, which Judge Gorsuch had 
sought, characterized his dissenting opinion as ``mischaracterization 
of this litigation and the panel opinion at several turns.''
  Here again, we see Judge Gorsuch going out of his way to rule in a 
fashion that he sees as necessary to sustain his broad views of 
religious claims. I am trying to give you an overview of Judge 
Gorsuch's opinions in a number of different areas, and I am mystified 
by how he would reach the conclusions he has reached in discrimination 
cases.
  Here is one that is very revealing: A.F. ex rel Christine B. v. 
Espanola Public Schools, where a student was found by Judge Gorsuch not 
to be able to sue for violation of the Americans with Disabilities Act 
because she had earlier settled a suit for violations of another act, 
the so-called IDEA Act.
  Well, she has a right under both laws. She would have obviously 
raised perhaps different claims, but his view was that she should not 
be in court. This closing of the courts must be taken seriously in 
evaluating Judge Gorsuch. Because if you can't get into court in the 
first place, particularly if you are a member of a minority group, or 
for the moment find yourself in the minority on a particular issue, 
then you are out of court before you are in court. You have lost before 
you cross the threshold.
  I can't imagine why Judge Gorsuch didn't allow a student to continue

[[Page 5255]]

when she had, in frustration, left her school because of violations of 
her disability rights. That frustration, as far as he was concerned, 
closed the courthouse door to her.
  Why would we want to interpret discrimination laws in a fashion that 
you can't get into court to make your case?
  A particularly cruel case, Compass Environmental v. OSHRC, a case 
where Gorsuch wrote the dissent, involved a worker who was electrocuted 
and died as a result. The corporation had trained its workers. This 
worker happened to be hired after the training had taken place; 
therefore, was not aware of all of the safeguards.
  The Occupational Safety and Health Review Commission found that the 
electrocution of the worker could have been avoided if the corporation, 
Compass Environmental, had provided the necessary training. So it cited 
Compass and it fined Compass. Gorsuch dissented. He found that the 
company had not violated the law. The company hadn't provided the 
requisite training. The man was electrocuted, and it is very 
instructive what Judge Gorsuch said:

       ``Administrative agencies enjoy remarkable powers in our 
     legal order. Their interpretations of ambiguous statutes 
     control even when everyone thinks Congress really meant 
     something else.''

  He didn't like the administrative ruling, so he dissented and would 
have ruled against the family of a man who was electrocuted.
  That is not a man I want on the Supreme Court. This is not a man who 
knows how to interpret the discrimination statutes which have always 
been interpreted broadly by the Federal courts. This is not a man who 
should sit on the Supreme Court of the United States.
  Mr. Speaker, I now yield to the gentlewoman from Texas (Ms. Jackson 
Lee), my good friend who is coanchoring this hour with me, who would 
like to say a few words.
  Ms. JACKSON LEE. Mr. Speaker, I thank the gentlewoman for again 
articulating the really egregious opinions, judicial approach, and 
temperament of Judge Gorsuch.
  I will conclude my remarks with a focus on the issues of women's 
rights as well as some cases dealing with immigration.
  Immigration, Mr. Speaker, is a crucial issue that we are addressing 
now. In fact, I will cite an incident that happened in our district--or 
in my district or in my community just a few days ago, which means, as 
we proceed, there may be a number of cases coming to the Federal courts 
and the district court because I think, as my colleague has indicated--
both of us have indicated--that the courts are for petitioning. That is 
what the courts are for.
  It seems that Judge Gorsuch wants to slam the door. And this is a--
how should I say it--a metaphor. It is not a precise comment by the 
judge, but annoyed that people have to come and use the courts. As he 
has indicated, minorities and women and others want to use the court 
for their social agenda.
  And for fear of being redundant, I feel moved--my passion is so 
strong because, Judge Gorsuch: Have you walked at any moment in your 
life in my shoes as a woman and as a minority?
  Have you walked in the shoes of the little children who made the 
plaintiffs of Brown v. Board of Education of Topeka?
  Were you in any way discriminated against with respect to education?
  Have you ever been a victim of stop and frisk?
  Have you ever been incarcerated for something you did not do?
  Have you ever been a woman who had been subjected to sexual 
harassment or discrimination?
  Do you understand the purpose of title VII?
  Do you understand the value of affirmative action both in policy and 
in law?
  Just a few weeks ago we got an effective and important decision on 
affirmative action out of this Supreme Court, in a court that is 4-4.
  I don't think that is the case. And I just, again, want to take this 
as I cite these cases. I just want to, again, cite Amanda Bronstad, 
that some of his decisions may have favored one or two plaintiffs. I am 
not going to deny that. But Gorsuch's careful judicial reasoning and 
parsing of statutory language has more than often led him to side with 
the defense.
  That is not the role of a Supreme Court Justice. It is not to side 
with anyone. It is to have the view on the basis of the appeal within 
the context of precedence and others how a decision should be rendered.
  So these are Judge Gorsuch's decisions:
  In Strickland v. UPS, Gorsuch dissented from a ruling giving a female 
UPS driver a chance to prove sex discrimination, arguing that the 
plaintiff had not provided evidence that she was treated less favorably 
than her male colleagues, even though in the documents submitted in the 
lower court, her coworkers testified and gave written testimony 
detailing the level of mistreatment they witnessed her receiving while 
employed by UPS.
  In Hwang v. Kansas State University involved a professor employed by 
Kansas State University who was diagnosed with cancer, and after 
treatments, requested an extension of her disability--another woman--
due to a flu outbreak on campus which could potentially compromise her 
health. And Judge Gorsuch talked about ``showing up'' as an essential 
job function, and that the Rehabilitation Act should not be used as a 
safety net for employees who cannot work. I think her request was an 
extension, not a forever.
  Two women, among others, that he found no reason to be supportive of. 
He could not find no legal precedent, nothing that would give him the 
ability to make a decision that was within the law and humane, even 
though he was in the dissent.
  And then in Planned Parenthood Association of Utah v. Herbert, the 
Governor of that State, again, he dissented against the court's 
majority, impacting women's health, to decline a full court review of 
the case--the court's majority decision to decline a full court review 
of the case, in which Governor Herbert of Utah stripped Federal funding 
away from Planned Parenthood. Neither party requested a full court 
review; however, Judge Gorsuch decided to deviate from court practices 
and norms to signal his favor of Governor Herbert's decision.
  Other women--he continues to show hostility toward women's rights and 
his willingness to overlook institutions that discriminate against 
women. His record indicates that.
  Let me finish with this comment on immigration--and if I might, Mr. 
Speaker, how much time is remaining?
  The SPEAKER pro tempore (Mr. Dunn). The gentlewoman has 2 minutes 
remaining.
  Ms. JACKSON LEE. Mr. Speaker, let me finish quickly and let my 
colleague from the District of Columbia close.
  Let me indicate an immigration case, and he voted to affirm the 
district's court granting of summary judgment which blocked a title VII 
national origin discrimination case from going to trial, despite 
evidence of animus, unlawful reverification and document abuse by the 
employer.
  Mr. Speaker, as a senior member of the House Committee on the 
Judiciary, Ranking Member of the Judiciary Subcommittee on Crime, 
Terrorism, Homeland Security, and Investigations, and member of the 
Congressional Voting Rights Caucus, I rise today to express my views 
regarding the nomination of Judge Neil Gorsuch to be Associate Justice 
of the Supreme Court.
  The Supreme Court is the highest court in the land and the final 
arbiter of our Constitution and laws, and its rulings can impact the 
lives and rights of all Americans as shown in the cases of Brown v. 
Board of Education, Roe v. Wade; Miranda v. Arizona; Gideon v. 
Wainwright; New York Times v. Sullivan; Obergefell v. Hodges; and 
Shelby County v. Holder, to name but a few.
  Judge Gorsuch is a judge with an agenda, as demonstrated by his 
record on the federal bench, as well as his writings, speeches, and 
activities throughout his career.
  Judge Gorsuch's frequent dissents and concurrences show he is out of 
the mainstream of legal thought and unwilling to accept the constructs 
of binding precedent and stare decisis when they dictate results he 
disfavors.

[[Page 5256]]

  Judge Gorsuch's appointment to the Court would tip the balance in a 
direction that would undermine many of the core rights and legal 
protections Americans cherish.
  For the reasons I will discuss in detail, the Senate should reject 
his nomination and not consent to his confirmation as the next 
Associate Justice of the U.S. Supreme Court.
  On Election Night the President-Elect pledged to the nation that he 
would be a president to all Americans.
  That pledge will ring hollow to tens of millions of Americans in 
light of his nomination of Judge Neil M. Gorsuch to be an Associate 
Justice of the U.S. Supreme Court.
  Perhaps nothing would do more to reassure the American people that 
the President is committed to unifying the nation than the nomination 
and appointment of a person to be Associate Justice who has a record of 
championing and protecting, rather than opposing and undermining, the 
precious right to vote; the constitutionally guaranteed right of 
privacy, criminal justice reform, and support for reform of the 
nation's immigration system so that it is fair and humane.
  That is not to be found in the record or character of Judge Gorsuch.
  It should not be forgotten that the vacancy at issue was created in 
February 2016 by the death of Justice Antonin Scalia and should have 
been filled by the confirmation of the eminently qualified Judge 
Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. 
Circuit.
  In fact, the only reason Judge Garland is not now on the Court is 
because Republican Senators disregarded a century of precedent and 
their constitutional oaths and refused to consider the nomination 
because it was made by President Obama.
  Judge Gorsuch's conservative ideology and professed judicial 
philosophy of ``original intent,'' which more accurately should be 
called the doctrine of predetermined result, has been at the core of 
his prior legal decisions.
  He is not an unbiased judge; at best, he is a younger, more charming 
version of Judge Robert Bork, who was rejected 58-42 by the Senate in 
1987.
  Unlike his predecessors, Presidents Obama, Clinton, Reagan, 
Eisenhower among them, the current President did not consult in advance 
with the bipartisan leadership of the Senate and its Judiciary 
Committee.
  Instead, the President selected Judge Gorsuch from the list of names 
provided him by the right-wing legal group, the Federalists Society.
  Judge Gorsuch's adherence to originalism is alarming and should raise 
concerns for all Americans because on a narrowly divided Court, his 
could be the deciding vote to dismantle many of the constitutional 
safeguards and protections upheld by the Court that have moved the 
country forward and made it better.
  Judge Gorsuch has a history of ruling against people who have used 
the legal system to hold government officials accountable.
  He has also used the bench to rule in favor of large corporations 
routinely and against the rights of workers.
  He has been lenient on those that have used excessive force and 
police brutality.
  His record demonstrates hostility towards equal opportunity, worker's 
rights, women's access to reproductive healthcare services, and 
protections for persons with disabilities.
  For example, in TransAm Trucking, Inc. v. Administrative Review 
Board, the majority held that a trucking company unlawfully fired an 
employee in violation of federal whistleblower protections.
  The employee, Alphonse Maddin, was a truck driver whose brakes broke 
down in the middle of a freezing January night in Illinois.
  The truck heater didn't work either, and he got so cold that he 
couldn't feel his feet or torso, and he had trouble breathing.
  Nonetheless, his boss ordered him to wait in the truck until a 
repairperson arrived.
  After waiting for three hours, Mr. Maddin finally drove off in the 
truck and left the trailer behind, in search of assistance.
  His employer fired him a week later for violating company policy by 
abandoning his load while under dispatch.
  The panel majority said the firing was unlawful, but Judge Gorsuch 
dissented and said the employee should have followed orders even at the 
risk of serious injury.
  In NLRB v. Community Health Services, Inc., Judge Gorsuch again 
dissented from a majority opinion that found in favor of employees, 
where a hospital was required to award back pay to 13 employees whose 
hours had been reduced in violation of the National Labor Relations 
Act.
  Judge Gorsuch's frequent and recurring dissents in workers' rights 
cases suggest a refusal to follow binding case law when it leads to 
results that favor workers rather than businesses and employers.
  In Strickland v. UPS, Gorsuch dissented from a ruling giving a female 
UPS driver a chance to prove sex discrimination, arguing that the 
plaintiff had not provided evidence that she was treated less favorably 
than her male colleagues even though her coworkers testified and gave 
written testimony detailing the level of mistreatment they witnessed 
her receiving while employed by UPS.
  Hwang v. Kansas State University involved a professor employed by 
Kansas State University who was diagnosed with cancer, and after 
treatments requested an extension for her disability due to a flu 
outbreak on the campus, which could potentially compromise her health.
  Judge Gorsuch ruled that ``showing up'' for work is an essential job 
function and that the Rehabilitation Act should not be used as a safety 
net for employees who cannot work.
  In Planned Parenthood Association of Utah v. Herbert, Judge Gorsuch 
dissented against the court's majority decision to decline a full court 
review of the case, in which, Governor Herbert of Utah stripped federal 
funding away from Planned Parenthood.
  Neither party requested a full court review, however, Judge Gorsuch 
desired to deviate from court practices and norms to signal his favor 
for Governor Herbert's decision.
  This particular case amplifies Judge Gorsuch's inability to remain 
impartial when deciding cases that may conflict with his personal 
beliefs.
  Throughout his tenure as a Judge, Gorsuch's record indicates his 
hostility toward women's rights and his willingness to overlook 
institutions that discriminate against women.
  Women will likely be disproportionately impacted by Judge Gorsuch's 
appointment to the United States Supreme Court and any decisions 
related to health, labor, and reproductive justice.
  Judge Gorsuch's record shows that he believes police officers always 
should be granted qualified immunity, allowing police officers and 
other government officials to avoid being held accountable for the 
excessive use of force.
  His record on police immunity aligns with President Trump's belief in 
police impunity.
  In cases where victims of excessive force did not pose an imminent 
threat to police safety, Judge Gorsuch has a tendency to side with 
police.
  Judge Gorsuch's judicial record on police accountability minimizes 
the Fourth Amendment protections against warrantless search and 
seizure.
  In three separate cases, Gorsuch ruled in favor of police searches of 
vehicles without a warrant.
  As an Associate Justice of the Supreme Court of the United States, 
Judge Gorsuch would be one of the nine individuals tasked with one of 
the most critical systems of American democracy.
  Because of the decisions rendered by the Supreme Court of the United 
States, women have been granted reproductive rights, de jure 
segregation and discrimination against African-Americans has been 
abolished and their right to vote protected, workers have been granted 
security from exploitative labor practices; and marriage equality is 
the law of the land.
  If confirmed to a evenly divided United States Supreme Court, it is 
unlikely that Judge Gorsuch would have a balanced, unbiased view of 
important issues.
  Judge Gorsuch's extreme judicial philosophy of original intent would 
likely lead him to cast decisive, out-of-the mainstream votes that 
reverse significant gains in the areas of police accountability, civil 
rights and liberties, women's reproductive rights, and workers' rights.
  Judge Gorsuch's record in each of these areas should raise concerns 
for all Americans.
  Opposing Judge Gorsuch is not a difficult decision; for members of 
the communities represented by CBC members, it is a matter of survival, 
of life and death.
  An Associate Justice would be expected to be an independent jurist 
capable of rendering judicial decisions that prevent executive 
overreach.
  No senator should vote to confirm the nomination of Judge Neil 
Gorsuch as Associate Justice if he or she has the slightest doubt that 
he possesses the character, qualities, integrity, and commitment to 
justice and equality needed for this position.
  There is so much to say about Judge Gorsuch, so much to say about the 
stance that is being taken by colleagues who are not being political, 
who are not talking about the 2016 election, who are simply talking 
about the courthouse door being slammed in the face of the most 
vulnerable.
  I believe that this judge should not ascend to the United States 
Supreme Court.
  Ms. NORTON. I thank my good friend for helping us document why we 
believe this is not the time for this Justice to be on the Supreme 
Court.

[[Page 5257]]

  We recognize that it is not the House of Representatives that decides 
this matter, but the Congressional Black Caucus represents 17 million 
Americans who will be deeply affected by who sits on this Court. I 
appreciate that we have had this full hour to express our views.
  Mr. Speaker, I yield back the balance of my time.

                          ____________________