[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5360-5381]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The senior assistant legislative clerk read the nomination of Neil M. 
Gorsuch, of Colorado, to be an Associate Justice of the Supreme Court 
of the United States.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, before I start, I ask unanimous consent 
that the debate time on the nomination of Judge Gorsuch during 
Tuesday's session of the Senate be divided as follows: the time until 
3:30 p.m. be under the control of the chairman of the Judiciary 
Committee; the time from 3:30 p.m. until 4:30 p.m. be under the control 
of the minority; the time from 4:30 p.m. until 5:30 p.m. be under the 
control of the majority; the time from 5:30 p.m. until 6:30 p.m. be 
under the control of the minority; and finally, that the time from 6:30 
p.m. until 6:45 p.m. be under the control of the majority.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, today we will continue to debate the 
nomination of Judge Neil M. Gorsuch to serve as Associate Justice of 
the Supreme Court of the United States.
  The Judiciary Committee held four full days of hearings last month. 
The judge testified for more than 20 hours. He answered more than 1,000 
questions during his testimony and hundreds more questions for the 
record. We have had the opportunity to review the 2,700 cases he has 
heard, and we have had the opportunity to review the more than 180,000 
pages of documents produced by the Bush Library and the Department of 
Justice. Now, after all of this, my Democratic colleagues unfortunately 
appear to remain committed to what they have been talking about for a 
long period of time: filibustering the nomination of this very well 
qualified jurist.
  Even after all of this process, there is no attack against the judge 
that sticks. In fact, it has been clear since before the judge was 
nominated that some Members in the Democratic leadership would search 
desperately for a reason to oppose him.
  As the minority leader said before the nomination: ``It's hard for me 
to imagine a nominee that Donald Trump would choose that would get 
Republican support that we could support.'' That is the end of the 
quote from the minority leader.
  He said later, and I will continue to quote him: ``If the nominee is 
out of the mainstream, we'll do our best to hold the seat open.''
  Then the President nominated Judge Gorsuch. This judge is eminently 
qualified to fill Justice Scalia's seat on the Supreme Court, and there 
is no denying that whatsoever.
  Let me tell you some things about him. He is a graduate of Columbia 
University and Harvard Law School. He earned a doctorate in philosophy 
from Oxford University and served as a law clerk for two Supreme Court 
Justices.
  During a decade in private practice, he earned a reputation as a 
distinguished trial and appellate lawyer. He served with distinction in 
the Department of Justice. He was confirmed to the Tenth Circuit Court 
of Appeals by a unanimous voice vote in this body.
  The record he has built during his decade on the bench has earned him 
the universal respect of his colleagues both on the bench and the bar. 
This judge is eminently qualified to do what the President appointed 
him to do.
  Faced with an unquestionably qualified nominee, my friends on the 
other side of the aisle, my Democratic colleagues, have continually 
moved the

[[Page 5361]]

goalpost, setting test after test for this judge to meet. But do you 
know what? This judge has passed all of those tests, all with flying 
colors, so the people on the other side of the aisle--the Democrats in 
the minority--are left with a ``no'' vote in search of a reason.
  Let's go through some of their arguments. First, the minority leader 
announced that the nominee must prove himself to be a mainstream judge. 
Is he a mainstream judge or not? Well, consider his record: Judge 
Gorsuch has heard 2,700 cases and written 240 published opinions. He 
has voted with the majority in 99 percent of the cases, and 97 percent 
of the cases he has heard have been decided unanimously. Only one of 
those 2,700 cases was ever reversed by the Supreme Court, and it 
happens that Judge Gorsuch did not write the opinion.
  Then consider what others say about him. He has been endorsed by 
prominent Democratic members of the Supreme Court bar, including Neal 
Katyal, President Obama's Acting Solicitor General. This Acting 
Solicitor General wrote a New York Times op-ed entitled ``Why Liberals 
Should Back Neil Gorsuch.'' Mr. Katyal wrote: ``I have no doubt that if 
confirmed, Judge Gorsuch would help to restore confidence in the rule 
of law.''
  He went on to write that the judge's record ``should give the 
American people confidence that he will not compromise principle to 
favor the President who appointed him.''
  Likewise, another well-known person, David Frederick, a board member 
of the liberal American Constitution Society, says we should ``applaud 
such independence of mind and spirit in Supreme Court nominees.''
  So after hearing what people on both the right and the left have said 
about the judge, it is clear that he is ``mainstream,'' but the 
goalpost seems to move. Next we hear that the judge doesn't care about 
the ``little guy'' and, instead, rules for the ``big guy.''
  First of all, that is a goofy argument. Just ask liberal law 
professor Noah Feldman. If you ask Professor Feldman, he says this 
criticism is a ``truly terrible idea'' because ``the rule of law isn't 
liberal or conservative--and it shouldn't be.''
  The strategy on this point became clear during our hearing: Pore 
through 2,700 cases, cherry-pick a couple where sympathetic plaintiffs 
were on the losing end of the legal argument, then find a reason to 
attack the judge for that result, and then, because of that case or 
two, label him ``against'' the little guy. As silly as that argument 
is, the judge himself laid waste to that argument during the hearing 
when he rattled off a number of cases where the so-called little guy 
came out on the winning end of the legal argument of a case.
  At any rate, as we discussed at length during his hearings, the judge 
applies the law neutrally to every party before him, and that is what 
you expect of judges.
  I disagree with some of my colleagues who have argued that judging is 
not just a matter of applying neutral principles. I think that view is 
inconsistent with the role our judges play in our system and, more 
importantly, with regard to the oath they take. That oath requires them 
to do ``equal right to the poor and the rich'' and to apply the law 
``without respect to persons.'' Naturally, this is what it means to 
live under the rule of law, and this is what our nominee has done 
during his decade on the bench of the Tenth Circuit Court of Appeals. 
So the judge applies the law ``without respect to persons,'' as he 
promised in his first oath he would, and he will repeat the oath when 
he goes on the Supreme Court.
  Then, of course, as they move these goalposts, the judge has been 
criticized for the work he did on behalf of his former client, the U.S. 
Government, when he was at the Justice Department.
  Of course, we have had a lot of nominees over many years who have 
worked as lawyers in the government. Most recently, Justice Kagan 
worked as Solicitor General. As we all know, she argued before the 
Supreme Court that the government could constitutionally ban pamphlet 
material. That is a fairly radical position for the U.S. Government to 
take. When asked about that argument during her hearing, she said that 
she was a government lawyer making an argument on behalf of her client, 
the U.S. Government, and it had nothing to do with her personal views 
on the subject. Now, there is a whole different standard for some 
people of this body. That answer is apparently no longer good enough. 
To hear the other side tell it, government lawyers are responsible for 
the positions their client, the U.S. Government, takes and the 
positions they have to argue. I respect my colleagues who are making 
this argument, but this argument does not hold water.
  What, then, are my colleagues on the other side left with after 
moving these goalposts many times, after making all of these arguments 
that don't stick? What are they left with? Because they can't get any 
of their attacks on the judge to stick, all they are left with are 
complaints about the so-called dark money being spent by advocacy 
groups. Yes, that is where the goalpost took them--to dark money.
  As I said yesterday, that speaks volumes about the nominee, that 
after reviewing 2,700 cases, roughly 180,000 pages of documents from 
the Department of Justice and the George W. Bush Library, thousands of 
pages of briefs, and over 20 hours of testimony before our committee 
and hundreds of questions both during and after the hearing, all his 
detractors are left with is an attack on the nominee's supporters--
people out there whom the nominee probably doesn't even know. They 
raise money to tell people about him, which they have a constitutional 
right to do under the First Amendment freedom of speech.
  The bottom line is that they don't have any substantive attacks on 
this nominee that will stick, so they shifted tactics, yet again moving 
the goalpost, and are now trying to intimidate and silence those who 
are speaking out and making their voices heard in regard to this 
nominee.
  Here is the most interesting thing about this latest development: 
There are advocacy groups on every side of this nomination. There are 
people out there for him, raising money and spending the money for him, 
and there are people out there against him who are raising and spending 
money so people know why they disagree with this nominee. Of course, 
that is nothing new. That has been true of past nominations, and there 
is nothing wrong with citizens engaging in the First Amendment freedom 
of speech and in the process of being for or against and encouraging 
public debate on whether a person ought to be on the Supreme Court. It 
was certainly true when liberal groups favoring the Garland nomination 
poured money into Iowa to attack me last year for not holding a 
hearing. For that reason, I didn't hear a lot of my Democratic 
colleagues complain about that money that could well be called dark 
money as well.
  There are groups on the left who are running ads in opposition to 
this nominee and threatening primaries. They are actually threatening 
primaries against Democrats who might not tow the line and might not 
help filibuster this nomination. For some reason, I am not hearing a 
lot of complaints about the money that is being raised to make some 
Democrats who might support this nominee look bad.
  As I have said, there is nothing wrong with citizens engaging in the 
process and making their voices heard. This is one of the ways we are 
free to speak our minds in a democracy. It has been true for a long, 
long time.
  As I said yesterday in the committee meeting, if you don't like 
outside groups getting involved, the remedy is not to intimidate and 
try to silence that message; the remedy you ought to follow is to 
support nominees who apply the law as it is written and then, in turn, 
leave the legislating to a body elected to make laws under our 
Constitution--the Senate and the House of Representatives.
  Regardless of what you may think about advocacy groups, about their 
getting involved, there is certainly no reason that they should go to 
great lengths to talk about this in our committee or talk about it to 
the nominee because he can't control any of that.

[[Page 5362]]

  The truth is, the Democrats have no principled reason to oppose this 
nomination, and those are words from David Frederick that I have quoted 
before. It is clear instead that much of the opposition to the nominee 
is pretextual. The merits and qualifications of the nominee apparently 
no longer matter.
  The only conclusion we are left to draw is that the Democrats will 
refuse to confirm any nominee this Republican President may put forth. 
There is no reason to think the Democrats would confirm any other judge 
the President identified as a potential nominee or any judge he would 
nominate. In fact, we don't even need to speculate on that point 
because the minority leader has spoken that point and made his point 
very clear. Before the President made this nomination, he said: ``I 
can't imagine us supporting anyone from his list.'' So it was very 
clear from the very beginning that the minority leader was going to 
lead this unprecedented filibuster. The only question was what excuse 
he would manufacture to justify it. The nominee enjoys broad bipartisan 
support from those who know him, and he enjoys bipartisan support in 
the Senate.
  I recognize that the minority leader is under very enormous pressure 
from special interest groups to take this abnormal step of 
filibustering a judge, because filibustering the Senate is not unusual 
but filibustering a Supreme Court Justice is very unusual. I know other 
Members of his caucus are operating under those very same pressures as 
well. In fact, yesterday, while the committee was debating the 
nomination, a whole host of liberal and progressive groups held a press 
conference outside of the Democratic Senatorial Campaign Committee, 
demanding that the campaign arm cut off campaign funds for any 
incumbent Democrat who doesn't filibuster this nominee. Those groups 
argue that because the Democratic Senatorial Campaign Committee had 
already raised a lot of money off the minority leader's announcement 
that he was going to lead a filibuster, the committee shouldn't provide 
that money to any Member who refused to join this misguided effort.
  Well, all I can say is that it would be truly unfortunate for 
Democrats to buckle to that pressure and engage in the first partisan 
filibuster of a Supreme Court Justice nominee in U.S. history--another 
way to say that is, the first partisan filibuster in the 228-year 
history of our country since 1789. If they regard this nominee as the 
first in our history worthy of a partisan filibuster, it is clear they 
would filibuster anyone.
  I have stated since long before the election that the new President 
would nominate the next Justice and the Judiciary Committee would 
process that nomination. That is just what we have done through the 
committee, and now we are doing it on the floor. So I urge my 
colleagues not to engage in this unprecedented partisan demonstration. 
Everyone knows the nominee is a qualified, mainstream, independent 
judge of the very highest caliber. Republicans know it, Democrats know 
it, and the left-leaning editorial boards across the country prove that 
even the press knows it. I urge my colleagues on the other side to come 
to their senses and not engage in the first partisan filibuster in U.S. 
history and instead join me and vote in favor of Judge Gorsuch's 
confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. GARDNER. Thank you, Mr. President, for the opportunity to come to 
the floor today in support of Judge Neil Gorsuch's confirmation to the 
Supreme Court. As a Coloradan, it gives me great honor to be here to 
talk about his nomination, the exceptional qualities of Judge Gorsuch, 
and how he will make us proud from the bench of the U.S. Supreme Court.
  I also commend my colleague, Chairman Chuck Grassley, for his work on 
the Judiciary Committee presiding over a very fair series of hearings, 
giving members on both sides of the aisle time to learn about Judge 
Gorsuch, to question Judge Gorsuch, and the time to present their side 
of the argument depending on whatever side that was going to be. 
Because of the fairness of the hearings, because of the fairness with 
which Chairman Grassley executed the hearings, it is quite obvious that 
this Chamber is faced with a very exceptional judge, a very exceptional 
nominee, and a nominee there is really no excuse to vote against.
  Neil Gorsuch really is about the story of the West. He is a fourth-
generation Coloradan. It is nice to stand here and talk about somebody 
who shares so much of our western experience and western heritage and 
somebody who serves on the Tenth Circuit Court in Denver--a circuit 
court that represents 20 percent of the land mass of the United States.
  Neil Gorsuch's background and upbringing in Colorado represent the 
hard work of westerners. His maternal grandfather, Dr. Joseph McGill, 
began his adult life by working in Union Station, the main railway 
terminal in downtown Denver. Dr. McGill put himself through medical 
school and went on to become a prominent surgeon. His grandmother, 
Dorothy Jean, raised seven children, all of whom he gave a better life 
and put through college because of his work in Colorado.
  Neil's paternal grandfather, John Gorsuch, was his legal inspiration. 
After serving in World War I, John Gorsuch put himself through 
undergrad and law school at the University of Denver by driving a 
trolley car back in the trolley car days of Denver. John, his 
grandfather, helped to build a private law practice that focused on 
real estate law. He made time to help Denver's welfare department and 
participated in Kiwanis and numerous other civic organizations, 
building a legendary law firm in Denver known as Gorsuch Kirgis.
  This is the kind of upbringing that made Neil Gorsuch who he is. In 
his younger days, Neil moved furniture, shoveled snow, like so many of 
us in Colorado, mowed lawns. It was the kind of upbringing that brings 
grit and determination to any person who knows hard work. It is that 
work ethic, combined with his family's appreciation of higher 
education, that helped Neil consistently realize academic excellence. 
It has been debated on this floor numerous times, his academic 
credentials that he would bring to the Supreme Court--his background 
and education at Columbia, law school at Harvard, his Ph.D. at Oxford, 
and of course, most importantly, the summer he spent at the University 
of Colorado and the teaching he carries out at the University of 
Colorado School of Law.
  This week, we are going to see a lot of finger-pointing and hear a 
lot of accusations. We are going to hear a lot of blame. The one thing 
we may not hear too much about is the person we are debating--Neil 
Gorsuch. That is because when it comes to Judge Gorsuch, people 
understand the highly qualified judge that he is. People understand the 
incredible legal mind he would bring to the Supreme Court. Instead of 
debating the merits of the nominee, they are going to debate how we got 
to the place we are today, and by the end of this week, architects of 
obstruction may force this Chamber to vote along partisan lines on 
something that should be a bipartisan effort.
  In Colorado, if you go to downtown Denver, you will see an area known 
as Confluence Park. Confluence Park is a great place in Colorado where 
people go to spend an afternoon and perhaps a weekend on a hot summer's 
day. It is where two rivers join together. There at Confluence Park, 
Colorado's poet laureate, Thomas Hornsby Ferril, has a poem inscribed 
on a plaque, which reads:

       I wasn't here. Yet I remember them, the first night long 
     ago, those wagon people who pushed aside enough of the 
     cottonwoods to build our city where the blueness rested.

  It is a poem that reminds us in Colorado that we are always looking 
up, that we are always looking toward the mountains and to that great 
blue sky. That is what Neil Gorsuch has done his entire life. He is 
somebody who is forward-thinking, somebody who understands the 
optimistic sense of Colorado, who understands the majesty of our West, 
and who understands the majesty of our form of government--a system 
that has three separate but equal branches of power. He has led a

[[Page 5363]]

life that is dedicated to the majesty of our Constitution. He is 
somebody who understands the pillars of our government in that no one 
branch of government should gain an unfair advantage over the other. 
That is what we ought to be debating this week. Instead, we are going 
to live the consequences of decisions that were made over a decade ago.
  It is interesting that Judge Gorsuch serves on the Tenth Circuit 
Court because one of his fellow judges on the Tenth Circuit Court was 
nominated by President George Bush in the early part of 2001, 2002, 
2003. It was Tim Tymkovich who was nominated by President Bush and who 
was caught up in the very first round of filibusters that changed the 
way this Chamber worked on nominations.
  It was a calculated determination by some in this Chamber to use a 
tool that had never been used before in such a lethal, partisan fashion 
that it would bring down judges and ultimately lead to a corrosion of 
Senate custom--a corrosion of over 200 years of Senate practice--when 
it comes to judges' confirmations. Ultimately, this week, we will see 
whether it leads to the disruption of how we confirm Supreme Court 
Justices.
  Make no mistake about it, over the past 200 years, we have not seen 
this moment before--a successful partisan filibuster of a Supreme Court 
Justice. People are going to talk about this around the country as they 
read the news, as they listen to the radio, as they watch on TV what is 
happening in the Senate. Most will just wonder, is the nominee 
qualified? If the nominee is qualified, then why are we trying to have 
an argument about ``he said, she said'' 15 years ago, 16 years ago? 
Because the nominee is well qualified, he should be confirmed. Why are 
we going to change 200 years of Senate practice and custom if the 
nominee is highly qualified, has what it takes to serve on the Supreme 
Court? That is the choice Members of this Chamber will have to make 
over the next several days as we work to confirm Judge Gorsuch.
  In 2006 when Judge Gorsuch was confirmed to serve on the Tenth 
Circuit Court in Denver, this Chamber did so unanimously by voice vote. 
There are a dozen Members in this Chamber who served then and did not 
oppose his nomination, many of whom seem willing today to block his 
nomination to the Supreme Court.
  One thing has changed in the intervening years; that is, who serves 
in the Presidency, who serves in the White House, who serves as 
President, and whether that nomination came from a Republican or a 
Democrat. The nomination, of course, in 2006 came from a Republican. 
Still, he was confirmed unanimously. Judge Gorsuch, now nominated to 
serve on the Supreme Court, was appointed by a Republican. Yet those 
very same people who supported him 11 years ago are now objecting to 
his service on the High Court after his exemplary decade of service on 
the Tenth Circuit Court.
  It was service that showed Judge Gorsuch's joining in over 2,700 
opinions, and with the majority the vast number of times. It was 
service in which he got to know the Colorado legal community. As we 
have discussed over the past several days and several weeks and the 
past month, the people who know Judge Gorsuch the best are the people 
who served with him and who worked with him at the Department of 
Justice, who practiced law with him, and who serve in the Colorado 
legal community. I thought it was important that we spend some time in 
talking about the people who know Judge Gorsuch the best because I 
think their opinions matter in this--those of the people of Colorado 
who want Judge Gorsuch confirmed.
  Let me start with a series of quotes from Judge Gorsuch's supporters 
back home in Colorado--again, those people who know him the best.
  This particular quote comes not from a Republican, not from a 
conservative; this quote comes from Steve Farber, who served in 2008 as 
the Democratic National Convention cochair. Again, he is not a 
conservative and he is not a Republican; he was the cochair of the 2008 
Democratic National Convention.

       We know Judge Gorsuch to be a person of utmost character. 
     He is fair, decent, and honest, both as a judge and a person.

  Steve Farber continues:

       We all agree that Judge Gorsuch is exceptionally well 
     qualified to join the Supreme Court. He deserves an up-or-
     down vote.

  This is not Mitch McConnell who is saying this. It is not Cory 
Gardner, Republican Senator from Colorado, who is saying this. This is 
a very prominent figure in Colorado's legal community and somebody who 
served in the 2008 Democratic National Convention.
  One of those 12 people who supported Judge Gorsuch in 2006 was then-
Senator Barack Obama, who was seeking the nomination at Mile High 
Stadium, at this very convention of which Steve Farber was cochair. 
Steve Farber says we should confirm Judge Gorsuch with an up-or-down 
vote.
  Norm Brownstein said that Judge Gorsuch deserves a fair shake in the 
confirmation process. He is another very prominent Democratic lawyer in 
Denver.
  We have heard a lot of people talk about the cases--those 2,700 
opinions--that he was a part of. We have heard Senator Grassley talk 
about arguments against Judge Gorsuch, people who have said that Judge 
Gorsuch was always against the little guy and that he was siding with 
corporations.
  Here is a quote from a Denver lawyer and Democrat on representing 
underdogs before Judge Gorsuch:

       [Judge Gorsuch] issued a decision that, most certainly, 
     focused on the little guy.

  Why did Marcy Glenn say this? Marcy Glenn said this because she knows 
that Judge Gorsuch voted with the majority of the court in 99 percent 
of the cases. In those 2,700 opinions, 99 percent of the time, Judge 
Gorsuch ruled with the majority. That is not trying to look out for the 
big guy or the little guy. That is about following the law. That is 
about a court that recognizes it is not in the business of focus groups 
or policy preferences, popularity contests or poll testing. It is about 
a judge who recognizes that the rule of law matters and that you take 
an opinion where the law leads you and takes you, not where your 
personal opinion takes you. It was 99 percent of the time that Judge 
Gorsuch voted to side with the majority on the court, and 97 percent of 
the time, those rulings were unanimous. Those decisions were unanimous. 
Of those 99 percent in which he sided with the majority, 97 percent of 
them were unanimously decided.
  This is a judge who is as mainstream as we have seen. He is somebody 
who understands the obligation and the duty he has to the law. He is 
somebody who understands what it means to be a good judge.
  I want to read a letter Senator Bennet and I received from the 
Colorado legal community:

       As members of the Colorado legal community, we are proud to 
     support the nomination of Judge Neil Gorsuch to be our next 
     Supreme Court Justice. We hold a diverse set of political 
     views as Republicans, Democrats, and Independents.

  That is bipartisan support back home from those people who know the 
judge the best.
  What does Neil Gorsuch think it takes to be a good and faithful 
judge? I will just read from Judge Gorsuch:

       It seems to me that the separation of legislative and 
     judicial powers isn't just a formality dictated by the 
     Constitution. Neither is it just about ensuring that two 
     institutions, with basically identical functions, are 
     balanced one against the other. To the Founders, the 
     legislative and judicial powers were distinct by nature, and 
     their separation was among the most important liberty-
     protecting devices of the constitutional design--an 
     independent right of people essential to the preservation of 
     all of the rights later enumerated in the Constitution and 
     its amendments.
       Now, consider, if we allow the judge to act like a 
     legislator, unconstrained by the bicameralism and presentment 
     hurdles of Article I, the judge would need only his own voice 
     or those of just a few colleagues to revise the law, willy-
     nilly, in accordance with his preferences, and the task of 
     legislating would become a relatively simple thing.
       Notice too how hard it would be to revise this so easily 
     made judicial legislation to account for changes in the world 
     or to fix mistakes. Being unable to throw judges out of 
     office in regular elections, you would have to wait for them 
     to die before you would have any chance of change. Even then, 
     you would

[[Page 5364]]

     find the change difficult, for courts cannot so easily undo 
     the errors given the weight that they afford to precedent.
       Notice, finally, how little voice the people would be left 
     in a government in which life-appointed judges are free to 
     legislate alongside elected representatives. The very idea of 
     self-government would seem to wither to the point of 
     pointlessness. Indeed, it seems that, for reasons just like 
     these, Hamilton explained, that liberty can have nothing to 
     fear from the judiciary alone but that it has everything to 
     fear from the union of the judicial and legislative powers.

  That is what Judge Gorsuch said makes a good and faithful judge.
  Over the course of the next week or over the course of the next 
several days, we are going to flesh out in detail some of the decisions 
people may find they disagree with. We will flesh out in detail Judge 
Gorsuch's temperament and his performance at the committee hearings. 
Yet there is no doubt that Judge Gorsuch has the support of the 
American people, who believe he should be confirmed. There is no doubt 
that Judge Gorsuch has the support of people who cochaired the 
Democratic National Convention and of prominent attorneys who know him 
best from Colorado. There is no doubt that his is an upbringing from 
the West. It is the story of how we built the West.
  I hope that over the course of the next few days, Republicans and 
Democrats alike will come to the conclusion that we will do this 
country a service. Instead of having partisan fights, we will have the 
bipartisanship support for a judge who will truly make this country 
proud, a judge who will truly represent the law, not personal opinion.
  I thank the Presiding Officer for this opportunity today. I look 
forward to being here for the rest of the week as we talk about Judge 
Gorsuch's qualifications and as we talk about the nomination.
  More than anything, let's make it clear that for 200-plus years, we 
have allowed judges to come to this floor for the Supreme Court and to 
be confirmed by a simple majority--no threshold, no 60-vote 
requirement. We have done so without partisan filibusters. I think that 
if we can maintain that custom, that practice, this country will be 
better served. There is no reason to change two centuries of practice 
in this body simply because they have decided they do not like the 
person who made the nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Hoeven). Under the previous order, the 
time until 4:30 p.m. will be controlled by the Democrats.
  The Senator from Hawaii.
  Ms. HIRONO. Mr. President, over the next hour, a number of my 
colleagues and I will join together to speak in opposition to the 
nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. 
Supreme Court. We are joining together today because this nomination is 
not just about the future of the Supreme Court. It is about the future 
of our country.
  There is no question about Judge Gorsuch's credentials or about his 
intellect. He is a graduate of Columbia and Harvard and has been a 
judge on the Tenth Circuit Court for more than a decade. In fact, his 
credentials are in stark contrast to so many of the dangerously 
unqualified individuals President Trump appointed to his Cabinet.
  Judge Gorsuch should not get a pass simply because we are relieved 
that President Trump didn't nominate a member of his family or a 
reality television personality for this job. Credentials cannot and 
should not be the only points we consider when evaluating a lifetime 
appointment to the Supreme Court. In fact, we should expect that anyone 
nominated to the Supreme Court will at least have impressive 
credentials.
  By many accounts, Judge Gorsuch would be the most conservative 
Justice on the Court--even more conservative than Justice Thomas or 
Justice Scalia. Rightwing advocacy groups cheered his nomination and 
have spent over $10 million to support his nomination. They spent this 
money because they have high confidence that he will rule in their 
favor on so many of the tough cases that will come before the Supreme 
Court. These groups, including the Heritage Foundation and the 
Federalist Society, selected Judge Gorsuch because he meets their 
litmus test for how they think a Justice should rule. They selected him 
because they understood Judge Gorsuch clearly met the litmus test the 
President outlined during his campaign.
  To paraphrase, Donald Trump wanted a judge who would prioritize the 
religious freedom of a corporation over the rights of its employees, 
uphold an expansive view of the Second Amendment, making it much 
tougher to enact sensible gun legislation to protect our communities, 
and who would overturn Roe v. Wade--as Donald Trump put it--
automatically.
  Judge Gorsuch's credentials are just a starting point. For the people 
who need justice most urgently, Judge Gorsuch's view of the law and his 
judicial philosophy will make a world of difference. The working 
families, women, differently abled, people of color, the LGBTQ 
community, immigrants, students, seniors, and our Native peoples are 
the people who will be impacted by the decisions a Justice Gorsuch 
would make.
  Today, April 4, is Equal Pay Day, which means that it took women 
until today to make the same amount that men made in 2016. Women have 
had to work more than 3 months longer to catch up, on average, to men.
  This significant pay disparity has existed for centuries, but it has 
been illegal in the United States since the passage of the Equal Pay 
Act in 1963. Proving illegal pay disparity under this law has been 
challenging, as we all know.
  Nationally, women are paid only 79 cents for every dollar a man is 
paid. In Hawaii, women are paid only 82 cents for every dollar a man 
makes. That is a little better than the rest of the country, but it is 
in no way good enough.
  At the median salary, that 82 cents translates into about $8,000 less 
per year in wages for a woman in Hawaii. That is a lot of money in my 
State, where the high cost of living makes it even more difficult for 
working families to get ahead--not to mention that many working 
families in Hawaii, as well as in other States, are headed by women. My 
immigrant family was headed by my mother.
  As we mark Equal Pay Day, I am well aware of the tremendous impact a 
single Justice can have on the lives and rights of millions of 
Americans.
  Under Chief Justice John Roberts, the Supreme Court has issued 
numerous 5-to-4 decisions that have favored corporate interests over 
the rights of individuals--cases like Shelby County, Citizens United, 
and Hobby Lobby.
  One of the most deeply flawed of these 5-to-4 decisions was in a 2007 
case called Ledbetter v. Goodyear Tire & Rubber Co. That decision had 
the effect of denying justice to a woman who had suffered pay 
discrimination for more than a decade. The Court said, in effect, that 
because Lilly Ledbetter didn't learn of the pay discrimination until it 
was too late, our justice system could not help her.
  Put another way, under the ruling, employers could discriminate 
against women so long as the employers made sure the women didn't find 
out about it.
  This will not be hard to do, as employers are not likely to announce 
that they are providing discriminatory pay to their female employees. 
This is what happened to Lilly Ledbetter. She didn't know.
  This decision was deeply wrong and surprised many Court watchers. It 
undid years of judicial precedent.
  I remember learning of this decision in Hawaii. I was serving on the 
House Education and Labor Committee of the U.S. House of 
Representatives at that time.
  The Supreme Court decision interpreted a Federal law that fell within 
the jurisdiction of the committee on which I sat. George Miller, then 
chair of the committee, immediately announced that we would change the 
law to be interpreted the way it had been before the Court applied 
their own narrow and wrong interpretation.
  We passed the Lilly Ledbetter Fair Pay Act with a Democratic Congress 
in 2009. Frankly, I doubt a Republican-controlled House and Senate 
would have done the same. It was the first

[[Page 5365]]

bill President Obama signed into law. I was there for that bill 
signing.
  Though we could not retroactively help Mrs. Ledbetter, this law 
reversed the Supreme Court's decision and assured that the injustice 
she endured did not happen to other women or to anyone else. Clearly, 
the composition of the Court and the identity of the fifth Justice 
matters a great deal in the real world--the real world of 5-to-4 
decisions.
  Yet, during this hearing, Judge Gorsuch refused to even acknowledge 
the role that judicial philosophy plays in the role of a Justice, and 
he downplayed the impact the law could have on people's lives, 
repeatedly saying he merely applied the law.
  If Justices merely applied the law and the law was so clear, we 
wouldn't have so many 5-to-4 decisions in the most critical cases.
  Judge Gorsuch told me during our meeting in February that the purpose 
of title III courts--these are the Federal courts--is to protect 
minority rights. But I found through examining his writings and 
decisions that Judge Gorsuch's view of the law lacks an understanding 
of people, their lives, and how the courts' decisions would impact 
them.
  This was particularly true in examining his ruling in the Hobby Lobby 
decision, where Judge Gorsuch demonstrated a cavalier attitude about 
how his decision would impact the thousands of women working at the 
Hobby Lobby company.
  In that case, Judge Gorsuch decided that a corporation with tens of 
thousands of employees--many of them women--has rights to the exercise 
of religion protected by the Religious Freedom Restoration Act, and 
that it could use those rights to deny to the thousands of women in its 
employ access to contraceptive coverage.
  During the hearing, I pressed Judge Gorsuch on whether he considered 
what would happen to the thousands of women who worked at Hobby Lobby, 
many of them working paycheck to paycheck who would now be denied 
access to contraceptive coverage. He responded by saying: ``I gave 
every aspect of that case very close consideration.''
  I fail to see what consideration Judge Gorsuch gave to those female 
employees. It is certainly not evident in the record.
  Justice Ginsburg's dissent, when this case reached the Supreme Court 
in Hobby Lobby, which Justices Kagan, Sotomayor, and Breyer joined, did 
assess the real world impact this decision would have on women. Justice 
Ginsburg wrote: ``The exemption sought by Hobby Lobby and Conestoga 
would . . . deny legions of women who do not hold their employers' 
beliefs access to contraceptive coverage.''
  In the Tenth Circuit's opinion, which Judge Gorsuch joined, and in 
his own concurrence, Judge Gorsuch showed grave concern with the 
potential ``complicity'' of the Hobby Lobby's owners--these are the 
corporate owners--in violating their beliefs, but he gave little or no 
consideration to the compelling interest of these women and the 
thousands of female employees in having access to contraceptive care.
  Judge Gorsuch failed to address our concerns during this hearing. 
Rather than recognizing the impact of his decision on thousands of 
women who work at Hobby Lobby and millions more who work at companies 
all across the country, Judge Gorsuch repeatedly said that if we didn't 
like what the Court was doing, or what he was doing, then Congress 
could change the law--as though that is such a simple thing.
  This is not an academic exercise. This is about the real world 
impact, not just of the Hobby Lobby decision but of decisions a Justice 
Gorsuch would make for the next 25 years, from which there is no 
appeal.
  Judge Gorsuch's nomination raises so many serious concerns for women 
across the country that I look forward to addressing over the next 
hour.
  During his hearing, Judge Gorsuch told us time and again to focus on 
his whole record as a judge and not on certain cases or things he wrote 
in books, articles, or emails.
  In fact, my Republican colleagues have suggested that we are being 
unfair when we try to look at the things he has said and written in 
order to discern how Judge Gorsuch would approach cases if confirmed. 
We wanted to get at his heart. We wanted to get at his judicial 
philosophy.
  Some of my colleagues have even gone so far as to suggest that by 
raising legitimate questions about Judge Gorsuch's record as part of 
our advice and consent responsibility, we are attacking judges in the 
same way President Trump has done during his 2\1/2\ months in office. 
This is fundamentally wrong and deeply misleading. It is like comparing 
apples and oranges. That comparison doesn't begin to describe the 
difference.
  Two weeks ago, in the middle of Judge Gorsuch's confirmation hearing, 
President Trump renewed his vicious and unwarranted attack on Judge 
Watson of Hawaii for blocking the President's unconstitutional Muslim 
ban.
  Although I wasn't then in the Senate, I recall that during Justice 
Sotomayor's confirmation hearing, Republican after Republican ignored 
almost the entirety of her 25 years on the Federal bench. Instead, they 
focused, in question after question at her confirmation hearing, on a 
gross misreading of one speech--one speech--she gave to a group of 
young women about the value of diversity on the bench.
  Republicans on the Judiciary Committee and in the Senate twisted her 
phrase ``wise Latina.'' That is a term she used in her speech. They 
twisted her use of the phrase ``wise Latina'' well beyond meaning.
  Looking at that speech, it is clear she meant to instill confidence 
in young women and a sense that they, too, needed to participate in a 
life of the law; that the law was not--is not--a place that excludes 
them. Senate Republicans turned these words into a baseless attack to 
undermine Justice Sotomayor's well-earned reputation of fairly applying 
the law in thousands of cases that had appeared before her. She had 
been on the bench for 25 years, but they focused on two words in one 
speech she gave during that time. Many Republicans then cited that 
speech to justify their opposition to her nomination.
  So when I hear my Republican colleagues touting their fairness toward 
President Obama's Supreme Court nominee, I recall not just their 
omitting any mention of Justice Merrick Garland--the well-credentialed, 
well-respected moderate whom they blocked from even having a hearing--I 
also remember Justice Sotomayor. I remember my Republican colleagues 
ignored her unanimously ``well qualified'' rating from the American Bar 
Association, her long record, and the tremendous chorus from the right 
and the left supporting her historic nomination.
  If confirmed, Judge Gorsuch's decisions will have a profound impact 
on the country, not just during his time on the Court but for 
generations to come. This is particularly true for women whose 
constitutional right to an abortion will be threatened by a Justice 
Gorsuch. During the Presidential campaign, Donald Trump laid out his 
litmus test for nominating a Justice. He said, for example, that 
overturning Roe v. Wade ``will happen automatically, in my opinion, 
because I am putting pro-life justices on the court.'' That was 
Candidate Trump's well-articulated litmus test, which he followed 
through on in his nomination of Judge Gorsuch.
  During his hearing, my colleagues and I tried to get a better sense 
of how and whether Judge Gorsuch would follow the President and uphold 
this constitutionally protected right. Based on his lack of response, I 
am skeptical that a Justice Gorsuch would uphold this critical right 
that generations of women fought to preserve.
  In 1992, in Casey, the Supreme Court reaffirmed the core holding of 
Roe that the right to an abortion is constitutionally protected. The 
Court held that these decisions are protected because they are among 
``the most intimate and personal choices a person makes in a 
lifetime.''
  In his 2006 book on the future of assisted suicide, Judge Gorsuch 
argued that Casey should be read more as a decision based merely on 
respect for

[[Page 5366]]

precedent rather than based on the recognition of constitutional 
protections for ``personal autonomy'' or for ``intimate or personal'' 
decisions. When I asked Judge Gorsuch about this, although he 
recognized that Roe and Casey are precedents of the Supreme Court, he 
did not go further and acknowledge that the Constitution itself 
protects the right to make intimate and personal decisions.
  In the time since Casey, the Court has relied on the protection for 
intimate and personal choices to decide many nonabortion cases, such as 
the Obergefell case, which recognized the right to marriage equality. 
We need a Justice who understands and respects the importance of this 
right--that it is the Constitution that provides protections for 
intimate and personal decisions. Otherwise, I am concerned he will join 
the Court and chip away at those protections.
  Judge Gorsuch said that the judicial robe changes a person. This was 
another way of telling us to ignore his own strongly held and 
frequently expressed personal views and, indeed, his judicial 
philosophy, which he continued to not discuss. Of course, if judicial 
philosophy didn't matter, Senate Republicans would not have engaged in 
the unprecedented act of blocking President Obama's nominee Merrick 
Garland, a well-credentialed, well-respected, moderate nominee, from 
even having a hearing. They held the seat open to be filled by the next 
President, preferably, a Republican one.
  In Neil Gorsuch, the Republicans got a nominee selected by rightwing 
organizations that are counting on Judge Gorsuch to rule in accordance 
with their very conservative views, which put corporate interests over 
individual rights. That is why, to put it simply, who wears the 
judicial robe matters.
  Just as the Federalist Society and the Heritage Foundation want Judge 
Gorsuch to wear the robe, the people who come before the bench--the 
millions of hard-working Americans whose lives will be affected by the 
Court's decisions--want a Justice who will protect their rights. They 
want a Justice who will wear the robe that protects their rights.
  I note that I am joined by Senator Duckworth of Illinois, and I yield 
time to her.
  The PRESIDING OFFICER. The Senator from Illinois.
  Ms. DUCKWORTH. Mr. President, today on Equal Pay Day, we are reminded 
of the fact that women across the country still make less money for the 
exact same work as their male counterparts, which is especially 
problematic for women of color, for whom the gap is even wider. We are 
also reminded of how vital our court system is to the future of equal 
opportunity for women in America and to the future of our working 
families.
  The next Supreme Court Justice will enter the Court at a critical 
moment for women's rights--a moment which could change the course of 
reproductive rights, voting rights, disability rights, and civil 
liberties in our Nation for generations to come. So naturally, I, much 
like my colleagues on the Judiciary Committee, wanted to know how these 
critical issues fit in Judge Gorsuch's judicial philosophy. I have 
serious concerns with his record of failing to protect women's health--
granting corporations and healthcare providers leeway to undermine 
women's access to care. I am also troubled by his rulings on disability 
rights that would jeopardize access to public education for students 
with disabilities, which is particularly alarming for the 27 million 
women in America who live with a disability.
  It is personal for me. As an American living with disabilities, my 
life isn't like those of many of my colleagues in Congress. Getting 
around can be difficult. I can't always get into restaurants or other 
public spaces, even here in the Capitol. I have to spend a lot of time 
planning how to get from one place to another.
  I understand that not everyone thinks about these things, and for 
most of my adult life, I didn't either. But after I became injured in 
combat in Iraq, I learned how important the protections of laws like 
the Americans with Disabilities Act and Individuals with Disabilities 
Education Act are to ensuring that millions of Americans with 
disabilities can live and thrive with dignity. Without them, Americans 
like me wouldn't be able to get to work, go to school, hold a job, pay 
taxes, go shopping, or do any of the things most of us take for 
granted. That is why I am speaking out today, because it matters deeply 
to me that our next Supreme Court Justice understand just how vital 
these protections are for Americans living with a disability. It is not 
just a disabilities rights issue; it is a civil rights issue.
  Similarly, a woman's access to healthcare is also a civil rights 
issue, and it is an issue that affects every single American. When a 
woman can't get the care she needs, her family suffers, and when her 
family suffers, her community suffers and our Nation suffers. That is 
why I find it so deeply troubling that Judge Gorsuch has time and again 
actively worked against reproductive justice. In a dissenting opinion, 
he argued in favor of defunding Planned Parenthood in Utah based on 
evidence that other judges deemed as false. In the Hobby Lobby case, he 
made it clear that he favors the religious beliefs of corporations over 
the rights of women to make their own choices about their bodies.
  What is worse, that isn't the only time Judge Gorsuch ruled to put 
corporate rights over human rights. You may have heard about a case in 
my home State of Illinois in which Judge Gorsuch ruled in favor of the 
rights of a trucking company over the rights of an employee in grave 
danger through no fault of his own. That is deeply troubling to me. He 
also dissented from a ruling giving a female UPS driver just the 
opportunity--the opportunity--to prove sex discrimination, and then 
again on a decision to fine a company that failed to properly train a 
worker, resulting in that worker's death.
  Judge Gorsuch's record makes it very clear that he is willing to 
elevate large corporations at the expense of everyday Americans, 
jeopardizing our civil rights. That is why it is so important to me 
that he explain his judicial philosophy, that he explain to me his view 
on so many of these critical issues.
  But then, during 4 days of hearings before the Judiciary Committee, 
Judge Gorsuch had the chance to clarify the philosophy behind his past 
rulings--to explain how his rulings may reveal his judicial philosophy 
as a Supreme Court Justice. However, instead of addressing these 
concerns, he dodged these questions--questions on some of the most 
important issues of our time. He wouldn't even express clearly his 
views on Roe v. Wade. The American people simply deserve better than 
that.
  Earning a lifetime appointment to the Supreme Court requires much 
more than a genial demeanor and an ability to artfully dodge questions. 
It requires honesty in answering even the toughest questions. That is 
why I cannot vote to confirm Judge Gorsuch.
  I take seriously my constitutional responsibility as a U.S. Senator 
to offer the President my informed consent, and it is clear that Judge 
Gorsuch has not provided some of the most essential information needed 
to grant him a lifetime appointment to our Nation's highest Court. 
Therefore, I am voting no on his nomination and supporting continued 
debate on the subject because I can't vote for a nominee when so many 
questions are left unanswered.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I am joined by my colleague from 
California, Senator Harris.
  The PRESIDING OFFICER. The Senator from California.
  Ms. HARRIS. Mr. President, I thank the Senator from Illinois for her 
important remarks just now and for her leadership and her friendship to 
so many of us. She has been an extraordinary hero of mine, personally, 
and so many of us look to her leadership. So I thank her--and for her 
speaking on the nomination of Judge Gorsuch.
  Across the street from this Chamber stands the U.S. Supreme Court. 
Above its doors are the words ``Equal Justice

[[Page 5367]]

Under Law.'' As Senators, we have a solemn responsibility to ensure 
that every man and woman who sits on that Court upholds that ideal. As 
a U.S. Senator, I take that responsibility extremely seriously.
  Almost two decades after the Supreme Court's landmark ruling in Brown 
v. Board of Education, I was part of only the second class to integrate 
the Berkeley, CA, public schools. If the Court had ruled differently, I 
likely would not have become a lawyer or a prosecutor or a district 
attorney or the Attorney General of California, and I certainly would 
not be standing here today as a U.S. Senator.
  I know from personal experience just how profoundly the Court's 
decisions touch every aspect of Americans' lives, and for that reason, 
I rise to join my colleagues in strong opposition to the nomination of 
Judge Neil Gorsuch to the U.S. Supreme Court.
  As we know, Judge Gorsuch went through 4 days of hearings in front of 
the Senate Judiciary Committee, and here is what we learned: We learned 
that Judge Gorsuch refused to answer the most basic of questions. He 
initially even refused to share his views on Brown v. Board of 
Education. We learned that Judge Gorsuch has a deeply conservative 
worldview. And we learned that Judge Gorsuch interprets the law in a 
theoretical bubble, completely detached from the real world--as he puts 
it, ``focusing backward, not forward.'' If Judge Gorsuch joins the U.S. 
Supreme Court, his narrow approach would do real harm to real people, 
especially the women of America.
  America deserves a Supreme Court Justice who will protect a woman's 
right to make her own decisions about her own health. Judge Gorsuch 
will not. Judge Gorsuch carefully avoided speaking about abortion, but 
he has clearly demonstrated a hostility to women's access to 
healthcare.
  Last year, when the court he sits on sided with Planned Parenthood, 
Judge Gorsuch took the highly unusual step of asking the court to hear 
the case again.
  Judge Gorsuch determined that a 13,000-person, for-profit corporation 
was entitled to exercise the same religious beliefs as a person. That 
meant the company did not have to provide employees birth control 
coverage and could impose the company's religious beliefs on all of its 
female employees. I ask my colleagues, why does Judge Gorsuch seem to 
believe that corporations deserve full rights and protections but women 
don't?
  As we mark Equal Pay Day today, Americans deserve a Supreme Court 
Justice who will protect the rights of women in the workplace. Judge 
Gorsuch won't. In employment discrimination cases, Judge Gorsuch has 
consistently sided with companies against their employees. These 
employees include women like Betty Pinkerton. The facts of the case 
were undisputed. Her boss repeatedly asked her about her sexual habits 
and breast size and invited her to his home--then fired her when she 
reported his sexual harassment. Judge Gorsuch ruled against Betty. Why? 
Well, part of his justification that he offered was that she waited 2 
months before reporting the harassment.
  Americans deserve a Supreme Court Justice who upholds the rights of 
all women, including transgender women. Judge Gorsuch won't. When a 
transgender inmate claimed that the prison's practice of starting and 
stopping her hormone treatment was a violation of her rights, Judge 
Gorsuch disagreed.
  As the National Women's Law Center observed, his ``record reveals a 
troubling pattern of narrowly approaching the legal principles upon 
which everyday women across the Nation rely.'' They write that his 
appointment ``would mean a serious setback for women in this country 
and for generations to come.''
  But judging by his record, if Judge Gorsuch becomes Justice Gorsuch, 
women won't be the only ones facing setbacks. Take Luke, a young boy 
with autism whose parents sought financial assistance after switching 
him from public school to a school specializing in autism education. 
Judge Gorsuch ruled that the minimal support Luke received in public 
school was good enough. People in the autism community were up in arms. 
And in the middle of a Senate hearing 2 weeks ago, the Supreme Court 
unanimously ruled that Judge Gorsuch was wrong on the law.
  Consider Alphonse Maddin. Maddin was a trucker who got stuck on the 
road in subzero temperatures--minus 27 degrees, as he recalls--and 
abandoned his trailer to seek help and save his life. For leaving the 
trailer, he was fired. Judge Gorsuch wrote that the company was 
entitled to fire Maddin for not enduring the cold and for not staying 
in his freezing truck.
  Then there is Grace Hwang, a professor diagnosed with cancer. She 
sued when her university refused to provide the medical leave her 
doctor recommended. Judge Gorsuch called the university's decision 
``reasonable'' and rejected her lawsuit. Sadly, Grace died last summer.
  Judge Gorsuch has Ivy League credentials, but his record shows he 
lacks sound judgment to uphold justice. He ignores the complexities of 
human beings--the humiliating sting of harassment, the fear of a cancer 
patient or a worker who feels his life is in danger. In short, his 
rulings lack a basic sense of empathy. Judge Gorsuch understands the 
text of the law, to be sure, but he has repeatedly failed to show that 
he fully understands those important words: ``equal justice under 
law.'' For the highest Court in the land, I say, let's find someone who 
does.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Strange). The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I thank my colleague from California, 
Senator Harris, for her eloquent and persuasive remarks.
  I am now joined by my colleague, the Senator from Massachusetts. I 
yield to her.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Thank you to the Senator from Hawaii for calling us here 
together today.
  Mr. President, it is clear that President Trump's nominee to the 
Supreme Court, Neil Gorsuch, does not have enough support in the Senate 
to be confirmed under our rules. When a Supreme Court nominee does not 
have enough support to be confirmed, the solution is to pick a new 
nominee, but Republicans in the Senate are threatening to pursue a 
different path. They are considering breaking the Senate rules to force 
the nominee onto the Supreme Court anyway.
  I will be honest. I think it is crazy that we are considering 
confirming a lifetime Trump nominee to the Supreme Court at a moment 
when the President's campaign is under the cloud of an active, ongoing 
FBI counterintelligence investigation that could result in indictments 
and appeals, that will go all the way to the Supreme Court, so that 
Trump's nominee could be the deciding vote on whether Trump or his 
supporters broke the law and will be held accountable. That is nuts. I 
believe we should tap the brakes on any nominee until this 
investigation is concluded.
  But even if none of that were happening, I would still oppose the 
confirmation of Neil Gorsuch. My objection is based on Judge Gorsuch's 
record, which I have reviewed in detail. Judge Gorsuch's nomination is 
the latest step in a long political campaign by rightwing groups and 
their billionaire backers to capture our courts.
  Over the last 30 years, as the rich have gotten richer and working 
families have struggled to make ends meet, the scales of justice have 
been weighted further and further in favor of the wealthy and the 
powerful. Those powerful interests have invested vast sums of money 
into reshaping the judiciary, and their investment has paid off in 
spades. Recent Supreme Court decisions have made it easier for 
corporate giants that cheat their customers to avoid responsibility. 
Recent Supreme Court decisions have let those same corporations and 
their billionaire investors spend unlimited amounts of money to 
influence elections and manipulate the political process. Recent 
Supreme Court decisions have made it

[[Page 5368]]

easier for businesses to abuse and discriminate against their workers.
  Giant corporations and rightwing groups have notched a lot of big 
wins in the Supreme Court lately, but they know their luck depends on 
two things--first, stacking the courts with their allies, and second, 
stopping the confirmation of judges who don't sufficiently cater to 
their interests. That is part of the reason they launched an all-out 
attack on fair-minded mainstream judges--judges like Merrick Garland, a 
thoughtful, intelligent, fair judge to fill the open vacancy on the 
Supreme Court.
  These very same corporate and rightwing groups handed Donald Trump a 
list of acceptable people to fill the Supreme Court vacancy, and as a 
Presidential candidate, he promised to pick a Justice from their list. 
Who made it onto that rightwing list? People who, unlike Judge Garland, 
displayed a sufficient allegiance to their corporate and rightwing 
interests. Judge Gorsuch was on that list, and his nomination is their 
reward.
  Even before he became a Federal judge, Judge Gorsuch fully embraced 
rightwing, pro-corporate views. He argued that it should be harder, not 
easier, for shareholders who got cheated to bring fraud cases to court.
  On the bench, Judge Gorsuch's extreme views meant giant corporations 
could run over their workers. In Hobby Lobby, when he had to choose 
between the rights of corporations and the rights of women, Judge 
Gorsuch chose corporations. In consumer protection cases, when he had 
to choose between the rights of corporations and the rights of the 
consumers they cheated, Judge Gorsuch chose corporations. In 
discrimination cases, when he had to choose between the rights of 
corporations and the rights of employees who had been discriminated 
against, Judge Gorsuch chose corporations. Time after time, in case 
after case, Judge Gorsuch showed a remarkable talent for creatively 
interpreting the law in ways that benefited large corporations and that 
harmed working Americans, women, children, and consumers.
  When it comes to the rules that prevent giant corporations from 
polluting our air and our water, from poisoning our food, from cheating 
hard-working families, Judge Gorsuch believes that it should be easier, 
not harder, for judges to overturn those rules--a view that is even 
more extreme than that of the late Justice Scalia.
  Republicans assert that Judge Gorsuch is a fair, mainstream judge, 
but rightwing groups and their wealthy, anonymous funders picked him 
for one reason: because they know he will be their ally. And that is 
not how our court system is supposed to work. Judges should be neutral 
arbiters, dispensing equal justice under law. They should not be people 
handpicked by wealthy insiders and giant corporations.
  For the working families struggling to make ends meet, for people 
desperately in need of healthcare, for everyone fighting for their 
right to vote, for disabled students fighting for access to a quality 
education, for anyone who cares about our justice system, there is only 
one question that should guide us in evaluating a nominee to sit on any 
court: whether that person will defend equal justice for every single 
one of us. Judge Gorsuch's record answers that question with a loud no.
  Republicans have a choice. They can tell President Trump to send a 
new nominee--a mainstream nominee who can earn broad support--or they 
can jam through this nominee. If they do jam through Judge Gorsuch, the 
Republicans will own the Gorsuch Court and every extreme 5-to-4 
decision that comes out of it. Republicans will own every attack on a 
woman's right to choose, on voting rights, on LGBTQ rights, on secret 
spending in our political system, and on freedom of speech and 
religion. Republicans will be responsible for every 5-to-4 decision 
that throws millions of Americans under the bus in order to favor the 
powerful, moneyed few who helped put Judge Gorsuch on the bench.
  Right now, the Presidency is in the hands of someone who has shown 
contempt for our Constitution, contempt for our independent judiciary, 
contempt for our free press, and contempt for our moral, democratic 
principles. If ever we needed a strong, independent Supreme Court with 
broad public support--a Supreme Court that will stand up for the 
Constitution--it is now.
  If ever there were a time to say that our courts should not be handed 
over to the highest bidder, it is now. And that is why Judge Gorsuch 
should not be confirmed to sit on the Supreme Court of the United 
States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I thank my colleague from Massachusetts 
for her impassioned, well-reasoned, persuasive remarks.
  All too often, Judge Gorsuch fixates on what we call the plain 
meaning of a word in the law and decides on his own meaning that he 
would give to that word. Sometimes he will resort to the Dictionary Act 
or Webster's dictionary to ascertain what he would consider the plain 
meaning of the law, but what he doesn't do time and again in very 
important cases that impact lots of lives is that he doesn't look to 
the context or the purpose of the law, to the point where sometimes his 
decisions are just bizarre and lack common sense.
  There was a reference made to the TransAm Trucking case where the 
truckdriver was in freezing weather. The brakes on his truck were not 
working properly, so he faced the choice of freezing to death or doing 
something about it but then risking being fired. So he did something 
about it. He got fired.
  Judge Gorsuch, in his reading--a very, very narrow reading of a word 
in the applicable provisions--deemed that his firing was correct. He 
was asked by Senator Franken at the hearing: What would you have done 
if you had been in that situation? There you are, you are about to 
freeze to death, and you have a truck that is not operable in a safe 
way unless you unhook the attachment to it. What would you have done?
  Judge Gorsuch basically said: I don't know what I would have done. I 
was not in his shoes.
  What any of us would have said--of course we would have done what the 
truck driver did. But in his very narrow reading of the words of the 
applicable provision, he came to the decision he did. That is why he 
could not respond to Senator Franken.
  It is particularly important that Judge Gorsuch explain to us how he 
would approach these kinds of cases. It is particularly important in 
what I would describe as remedial legislation, such as the Individuals 
with Disabilities Education Act, better known as IDEA. This is remedial 
legislation that protects the educational rights of special needs 
children. That is the population for which this law was enacted.
  Judge Gorsuch had a case before him, and it was referred to by my 
colleague from California. A young boy was not getting the kind of 
educational opportunities that he should have gotten under IDEA, but 
Judge Gorsuch read that remedial legislation, which should be broadly 
interpreted to protect the class and the group that the law was passed 
to help--he read it very, very narrowly.
  He said that the school needed only to provide ``merely de minimus'' 
education for this child. He put in the words ``merely de minimus'' 
effort on the part of the school to provide this young boy with 
educational opportunities. That was bad enough, but Judge Gorsuch added 
the word ``merely.'' So during the time of his hearing, the Supreme 
Court, in a related--basically the same law, IDEA, was at issue--and 
the Supreme Court, while we were having the hearing on Judge Gorsuch's 
nomination, unanimously overturned Judge Gorsuch's standard of ``merely 
de minimus.'' Even the Roberts Court found Judge Gorsuch's standard of 
review too limiting and too narrow.
  So the young boy in question--his father testified at the 
confirmation hearing. I asked him what he was thinking as the decision 
of Judge Gorsuch came down. He said he knew that this decision would 
negatively affect hundreds and hundreds of special needs children all 
across our country.

[[Page 5369]]

  This is why I sought assurance from Judge Gorsuch that he would be 
the kind of Justice who understands, as he told me when I met with him, 
that the purpose of title III, which are the Federal courts, is to 
protect the rights of minorities. So I wanted reassurance from Judge 
Gorsuch during his hearing. I tried time and again to get a sense of 
his heart, what his judicial philosophy was. I was looking for the 
reassurance that he was the kind of judge who understands the 
importance of assuring that victims of discrimination cannot only ask 
for but can also receive protections from the courts and who 
demonstrates a commitment to the Constitutional principles that protect 
the rights of women to make the intimate and personal decisions of what 
to do with their own bodies.
  Mr. President, I note that I am joined by my colleague from 
Washington State, Senator Murray. I yield to her.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Thank you, Mr. President.
  I thank my colleague from Hawaii for her really important statement 
on this. I come to the floor today to express my serious concerns, 
along with other women from the Senate, about the nomination of Judge 
Neil Gorsuch for the Supreme Court, particularly about what it would 
mean for women across the country today and for generations to come.
  Like the overwhelming majority of my Democratic colleagues, I have 
decided to vote against Judge Gorsuch's nomination, and I will be 
opposing a cloture motion ending debate. Now, I don't take this 
decision lightly, but with the future of women's health and rights and 
opportunity at risk, it is a decision I must make.
  The Trump administration has broken nearly every one of its promises, 
but one it has certainly kept is its promise to turn back the clock on 
women's progress. It is clear that Republicans in Congress are 
committed to doing the same. Last week, just a few days ago, Senate 
Republicans, with the help of Vice President Pence, overturned a rule 
that prevents discrimination against family planning providers based on 
the kinds of services they provide to women. It was shameful and 
unprecedented.
  Now, not missing a beat, Congressional Republicans are already 
gearing up to attach riders to our coming budget bills in order to cut 
off access to critical services at Planned Parenthood for millions of 
patients. There are similar attempts to undermine women's access to 
healthcare in cities and States nationwide, and more often than we 
would like, the Supreme Court is going to be the place of last resort 
for protecting women's hard-fought gains.
  If the buck has to stop with the Supreme Court on women's health and 
rights, I do not want Judge Gorsuch anywhere near the bench. Time and 
again, Judge Gorsuch has sided with the extreme rightwing and against 
tens of millions of women and men who believe that in the 21st century, 
women should be able to make their own choices about their own bodies.
  Let me just give you a few examples. When the Tenth Circuit ruled in 
the case of Burwell v. Hobby Lobby that a woman's boss could decide 
whether or not her insurance would include birth control, Judge Gorsuch 
did not just agree; he thought the ruling should have gone further. 
Judge Gorsuch has argued that birth control coverage included in the 
ACA as an essential part of women's healthcare--one that has, by the 
way, benefited 55 million women--is a ``clear burden'' on employers 
that would not long survive.
  When it comes to Planned Parenthood, he has already weighed in on the 
side of defunding our Nation's largest provider of women's healthcare. 
What was his reasoning? Judge Gorsuch thought that in light of 
completely discredited sting videos taken by extreme conservatives, 
women in the State of Utah should have a harder time accessing the care 
they need. I should note that just last week, the makers of those false 
videos received 15 felony charges.
  I also want to be clear, as well, about what Judge Gorsuch's 
nomination could mean for a woman's constitutionally protected right to 
safe, legal abortion services under the historic ruling in Rowe v. 
Wade, which was just reaffirmed last summer by this Court. In his 
nomination hearings, Judge Gorsuch would not give a clear answer on 
whether he would uphold that ruling, which has meant so much to so many 
women and families over the last four decades.
  Judge Gorsuch has donated repeatedly to politicians who are dead set 
on interfering with women's constitutionally protected healthcare 
decisions. He has even made deeply inaccurate comparisons between 
abortion and assisted suicide.
  I remember the days before Rowe v. Wade very clearly. I have heard 
the stories of women faced with truly impossible choices during that 
time. Women from all across the country have shared those deeply 
personal experiences because they know what it would mean to go 
backward.
  Lastly, attempts to control women's bodies are not always about 
reproductive rights. Sure enough, Judge Gorsuch is on the wrong side 
here as well. He concurred in a ruling against a transgender woman who 
was denied regular access to hormone therapy while she was in prison. 
This ruling rejected the idea that under our Constitution, denying 
healthcare services is cruel and unusual punishment. That is not the 
kind of judgment I want to see on the bench, and I think most families 
would agree.
  Families who have already done so much to lead the resistance against 
this administration and its damaging, divisive agenda are fighting this 
nomination as hard as they can. They know the Trump Presidency will be 
damaging enough for 4 years, but Judge Gorsuch's nomination will roll 
back progress for women over a lifetime.
  I am proud to stand with them and do everything I can to make sure 
they are heard loud and clear here in the Senate. I oppose Judge 
Gorsuch's nomination in light of everything it would mean for women.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I thank my colleague, Senator Murray, our 
assistant Democratic leader, for her continuing, longstanding 
leadership on behalf of women and families in our country.
  Over the past hour, my colleagues and I have laid out a fair case 
against confirming Judge Gorsuch to the U.S. Supreme Court. As we 
approach a vote on his confirmation, I encourage my colleagues to 
scrutinize Judge Gorsuch's judicial philosophy, even as he refused to 
outline for us or describe for us what that philosophy is. But we have 
come to certain conclusions based on 4 days of hearings. During his 
hearing, Judge Gorsuch refused, as they say, time and again to answer 
our questions on his judicial philosophy or his approach to the law. He 
insisted that he was merely a judge, as if the use of the word ended 
any discussion or scrutiny of his record.
  Judge Gorsuch painted a picture for us of the Court that is really 
straight out of a Norman Rockwell painting. He said during his hearing: 
``One of the beautiful things about our system of justice is that any 
person can file a lawsuit about anything against anyone at any time . . 
. and a judge, a neutral and fair judge, will hear it.''
  Norman Rockwell painting--it is a wonderful idea that anybody can 
file a claim to protect their rights or interests. It is also a 
wonderful idea to assume that those claims will be heard and ruled upon 
by neutral judges, apparently uninfluenced by their own strongly held 
and frequently expressed personal views and judicial philosophy.
  Many of my Republican colleagues have echoed this view and argued 
that Judge Gorsuch's credentials should be enough--Columbia, Harvard. 
They argue that it is wrong or even unfair to question how Judge 
Gorsuch might approach the kinds of difficult issues that come before 
the Supreme Court.
  Of course, if judicial philosophy did not matter, then the 
Republicans would not have engaged in the unprecedented act of blocking 
President Obama's nominee--as I mentioned,

[[Page 5370]]

Merrick Garland, a well-credentialed, well-respected moderate nominee--
from even having a hearing. In fact, many of the Republican Senators 
did not even extend the courtesy of meeting with Judge Garland. They 
would not have held the seat open to be filled by the appointee of a 
Republican President, one selected for him by rightwing organizations.
  When my colleagues and I asked Judge Gorsuch about his judicial 
philosophy, he said that his words, his views, his writings, and his 
clearly expressed personal views had no relevance to what he would do 
as a Justice. He told us to look at his whole record, so I examined his 
whole record. I saw in that record too little regard for the real-world 
impact of his decisions. I saw a refusal to look beyond the words to 
the meaning and intent of the law, even when his decisions lacked 
common sense, as in the frozen truck driver case, and far too often, to 
the benefit of big corporations and against the side of the little guy.
  The decisions of judges have real-world impacts for millions of 
people beyond the parties in a particular case. This is especially true 
of the Supreme Court, which issues decisions that don't just reach 
those in the case in front of them--the frozen trucker, the women who 
work at Hobby Lobby faced with a lack of critical healthcare, the 
special needs child entitled to educational opportunities under the 
IDEA. The Supreme Court does not just interpret laws; the Supreme Court 
shapes our society.
  Will we be just? Will we be fair? Will America be a land of 
exclusivity for the few or land of opportunity for the many? Will we be 
the compassionate and tolerant America that embraced my mother, my 
brothers, and me so many decades ago when we immigrated to this 
country? These values seem too often absent from Judge Gorsuch's record 
and from his view of the law and the Court.
  The central question for me in looking at Judge Gorsuch and his 
record and listening carefully through 4 days of hearings was whether 
he would be a Justice for all of us, not just one for some of us. I 
came to the conclusion that he would not be a Justice for all of us, so 
I oppose his nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Johnson). Under the previous order, the 
time until 5:30 p.m. will be controlled by the majority.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I have several of my colleagues on this 
side of the aisle who want to speak, but I just want to take a minute 
and a half or so to clarify some things I have heard from the other 
side that need to be counteracted.
  First of all, I don't know whether they mentioned the term ``Ginsburg 
rule,'' but we do have this Ginsburg rule that was set out a long time 
ago when Judge Ginsburg came before the Senate for her confirmation. 
She said that you can't comment on things that might come before the 
Court because obviously you would be violating judicial ethics. Then I 
will comment on some things people have said about Brown v. Board of 
Education.
  The very fact that Judge Gorsuch has declined to offer his opinion on 
legal issues that are likely to come before the Supreme Court 
demonstrates what we should all expect of him: his judicial 
independence. That is what we expect of every judge. The judge's 
decision not to offer his opinion on issues that may come before him is 
consistent with judicial ethics rules and is consistent with what I 
have referred to already as the Ginsburg rule or the Ginsburg standard, 
which all Supreme Court nominees in recent memory have followed. As 
Justice Ginsburg said, commenting on these issues is not fair to 
parties who might come before the Court in future years. That is what 
Judge Gorsuch said as well.
  Questions to this end are nothing more than an attempt to compromise 
the judge's independence, and he showed us that he wasn't going to have 
his independence compromised because he is going to do what judges 
should do: look at the facts of a case, look at the law, and make those 
decisions based only on that and send no signals whatsoever ahead of 
time of how he might view something.
  Along these lines, my colleagues said that the judge should have 
announced that he agreed with the ruling in Brown v. Board of Education 
but didn't offer enough information about this opinion in an 
appropriate discussion of precedent.
  I will quote our nominee. He said this: ``Senator, Brown v. Board of 
Education corrected an erroneous decision, a badly erroneous decision, 
and vindicated a dissent by the first Justice Harlan in Plessy v. 
Ferguson, where he correctly identified that separate to advantage one 
race can never be equal,'' end of the quote of our nominee. So the 
judge spoke about precedent very appropriately. He answered our 
questions in a manner consistent with his obligations and with past 
nominees.
  One more point. I keep hearing complaints that the judge won't make a 
commitment to follow Roe v. Wade, but my colleagues' requests really 
boil down to a quest for a promise to reach results that they want. 
They demand adherence to Roe v. Wade on the one hand and a promise to 
overrule Citizens United on the other hand, as examples. Asking the 
judge to make commitments about precedent is inappropriate. I have said 
this so many times, and my colleagues will repeat it many times as 
well. It compromises the judge's independence.
  Instead of being beholden to the President, my colleagues would have 
the judge be beholden to them. This nominee isn't going to be beholden 
to a President, and he is not going to be beholden to any Senator 
because if he did that, he would be compromising his views.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, 2 months ago, the President nominated Judge 
Neil Gorsuch, a judge on the Tenth Circuit Court of Appeals, to the 
Supreme Court. This week, we will be voting on his confirmation.
  I want to say that I am grateful to my colleague, the senior Senator 
from Iowa, for his leadership during this process and for getting this 
nomination to the floor. We are fortunate to have him as chairman of 
the Judiciary Committee.
  We have before us a supremely qualified candidate for the Supreme 
Court. Judge Gorsuch has a distinguished resume. He is widely regarded 
as a brilliant and thoughtful jurist. Most importantly, however, he is 
known for his impartiality and his absolute commitment to the rule of 
law. Judge Gorsuch understands that the job of a judge is to apply the 
law as it is written--and here is the fundamental thing--even when he 
disagrees with it.
  ``A judge who likes every outcome he reaches is very likely a bad 
judge.'' Judge Gorsuch has said that 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 because there 
is no such thing as equal protection or equal justice when judges make 
decisions based on their personal feelings about a case instead of 
based upon the law. A judge's job is to apply the law as it is written, 
whether he likes the result or not. Judge Gorsuch understands this.
  A lot of people from across the political spectrum have spoken up in 
favor of Judge Gorsuch's nomination, and one thread that runs through 
their comments is their confidence that they can trust Judge Gorsuch to 
apply the law as it is written.
  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 would 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.

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


[[Page 5371]]

       Gorsuch's approach to resolving legal problems as a lawyer 
     and a judge embodies a reverence for our country's values and 
     legal system. . . . 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 who are 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. . . . 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 that 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.

  Again, that is the unanimous opinion of 39 of Judge Gorsuch's former 
law clerks whose political views, in their own words, ``span the 
spectrum.''
  E. Donald Elliott, an adjunct professor at Yale Law School, had this 
to say about Judge Gorsuch:

       Judge Gorsuch's judicial philosophy isn't mine . . . but 
     among judicial conservatives, Judge Gorsuch is as good as it 
     possibly gets. . . . Judge Gorsuch tries very hard to get the 
     law right. He is not an ideologue, not the kind to always 
     rule in favor of businesses or against the government. 
     Instead, he follows the law as best he can wherever it might 
     lead.

  I could go on. The voices raised in support of Judge Gorsuch are 
numerous.
  Unfortunately, no amount of testimony in favor of Judge Gorsuch seems 
to be enough for Democrats. Senate Democrats are apparently determined 
to oppose Judge Gorsuch despite the fact that they are struggling to 
find any good reason to justify their opposition.
  The Senate minority leader came down to the floor on March 23 to 
announce his determination to vote against Judge Gorsuch, and he urged 
his colleagues to do the same. Why? Well, apparently the Senate 
minority leader is not convinced that Judge Gorsuch ``would be a 
mainstream justice who could rule free from the biases of politics and 
ideology.'' That is right. Despite the fact that everyone--liberal and 
conservative--seems to describe fairness as one of Judge Gorsuch's 
distinguishing characteristics, the Senate minority leader is not 
convinced the judge will be able to rule without bias. He is worried 
that Judge Gorsuch won't be a mainstream judge.
  Well, over the course of 2,700 cases on the Tenth Circuit, Judge 
Gorsuch has been in the majority 99 percent of the time--99 percent. In 
97 percent of those 2,700 cases, those opinions were unanimous. I would 
like the minority leader to explain how exactly a judge who is in the 
majority 99 percent of the time is out of the judicial mainstream. Is 
the minority leader trying to suggest that all of the judges on the 
Tenth Circuit, including the ones appointed by Democrats--which, I 
might add, is a majority on the circuit--are extremists?
  The fact is, Democrat opposition to Judge Gorsuch has nothing to do 
with his qualifications. Let's just get it out there. I doubt that any 
of my colleagues on the other side of the aisle really think that Judge 
Gorsuch is out of the mainstream or that he lacks the qualifications of 
a Supreme Court Justice. No, the truth is that Democrats are opposing 
Judge Gorsuch because they are mad that it is not a Democratic 
President making the nomination. They can't accept that they lost the 
election, so they are going to oppose any nominee, no matter how 
qualified.
  It is extremely disappointing that Democrats plan to upend a nearly 
230-year tradition of approving Supreme Court nominees by a simple 
majority vote simply because they can't accept the results of an 
election.
  Democrats have no plausible reason to offer for opposing this 
supremely qualified nominee. I hope that a sufficient number of Senate 
Democrats will think better of their opposition and vote--when we have 
that opportunity later this week--to confirm Judge Gorsuch to the 
Supreme Court.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. KENNEDY. Mr. President, there are, of course, two issues before 
the Senate with respect to Judge Neil Gorsuch. The first issue is 
simply, should or should not Neil Gorsuch be confirmed as an Associate 
Justice to the U.S. Supreme Court? There is also a second issue, and 
the second issue is, Should the Senate even be allowed to vote?
  Those two questions are both important and interrelated. I want to 
talk about the first one first.
  I sit on the Judiciary Committee. We heard last week--2 weeks ago--
about 20 hours of testimony from Judge Gorsuch. I think he answered 
about 200 questions in writing. One of the objections offered by our 
friends on the other side of the aisle, the Democratic Party, was that 
Judge Gorsuch refused to answer some of the questions. Now that is just 
not accurate.
  Many of the questions that were asked of the judge by both 
Republicans and Democrats were fair questions--some of them, not so 
much.
  Judge Gorsuch was asked, in effect: What is your position on 
abortion? How will you vote?
  He was asked: How will you vote on gun control?
  He was asked: How would you vote on cruel and unusual punishment, the 
Eighth Amendment?
  He was asked how he would vote on questions dealing with the Tenth 
Amendment. He didn't answer those questions, and then he was criticized 
for not answering those questions. He didn't answer those questions 
because he couldn't. He is a sitting judge of the U.S. Court of Appeals 
for the Tenth Circuit. Let me read to you canon 3(a)(6) of the Code of 
Conduct for United States Judges. It states: ``A judge should not make 
public comment on the merits of a matter pending or impending in any 
court.''
  Let me read you rule 2.10(B) of the American Bar Association Model 
Code of Judicial Conduct. It provides, and I quote: ``A judge shall 
not, in connection with cases, controversies, or issues that are likely 
to come before the court, make pledges, promises, or commitments that 
are inconsistent with the impartial performance of the adjudicative 
duties of the judicial office.''
  Now, say what you want about Mr. Gorsuch, but don't criticize him for 
not violating the oath of his office and not making promises, pledges, 
or commitments, like a politician, on how he would vote on the U.S. 
Supreme Court, because Justices are supposed to decide the case on the 
merits.
  As I mentioned, I watched Judge Gorsuch answer questions personally 
for over 20 hours. He was asked some other questions other than the 
ones I have referenced, and I was intrigued by some of the questions 
that Judge Gorsuch was asked. My friends in the Democratic Party kept 
trying to draw distinctions with Judge Gorsuch between the parties in 
cases that he had decided. My friends kept talking about the ``big 
guy,'' the ``little guy,'' the corporation, the consumer, the employer, 
the employee. The suggestion was made that Judge Gorsuch didn't vote 
enough for the little guy or little gal, for whatever that means. What 
struck me when he answered those questions was that we were supposed to 
be talking about the faithful application of justice. Now, I was taught 
in law school that Lady Justice is supposed to be blind, that neither 
the wealth nor the power nor the status of the parties should matter. 
That is why, in the picture that we see so often of Lady Justice, she 
is blindfolded. She

[[Page 5372]]

isn't looking at the parties at all to see whether they are wealthy or 
not so wealthy. She isn't looking at the parties to see whether they 
are a corporation or a consumer or what race they are or what gender 
they are or what part of the country they are from. Lady Justice is 
supposed to be blind because we are a nation of laws, not men.
  Of all the places in our country, an American court of law--and I am 
very proud of this--is supposed to be the place of last resort, where 
you can come and get a fair shake. That is how good judges operate. 
They give everybody a fair shake. A good judge is supposed to make his 
or her decisions based on the law, not the parties. Good judges are 
supposed to be impartial--to call it like they see it, to call the 
balls and strikes--and that is exactly what Neil Gorsuch has done 
throughout his entire career.
  I can promise that, as I sit on the Judiciary Committee, if any 
President, whether he is a Republican or Democrat, ever brings a 
nomination before the Judiciary Committee when I am on that committee 
and that nominee starts talking about the wealth or the status or the 
power of the parties and how it will influence or not influence his 
decision, suggesting that will make a difference, I will vote against 
that nominee--I don't care who nominates him--every single time, 
because that is not American justice.
  We talked about two cases in particular, and the Presiding Officer 
has probably heard them talked about here on the floor. On the surface 
they don't seem to be related. Judge Gorsuch ruled in both of these 
cases, but I think they interact in a very important way. They tell us 
that he doesn't play politics and he doesn't rule for the big guy just 
because he is a big guy or the little guy just because he is a little 
guy.
  The first case we heard a lot about was a decision by Judge Gorsuch 
called TransAm Trucking. You are going to hear a lot about that case. 
In that case, Judge Gorsuch made a decision that was unfavorable to a 
trucker, and he ruled in favor of the trucking company--little guy 
versus big guy. Judge Gorsuch ruled for the big guy, and it is 
important to know why and to look at the reasoning in that case and not 
just the result.
  During the discussion on the case, Judge Gorsuch made it very clear 
that he only made that decision because he believed that was what the 
statute controlling the facts of the case required--a statute that was 
passed by a legislative body duly authorized by the people that make 
the law. Unlike our courts, which are supposed to interpret the law, 
Judge Gorsuch did not decide the case the way he did because he didn't 
sympathize with the trucker. He decided that case the way he did 
because he was doing his best to accurately apply the law, as best he 
understood it, to the facts before him. Once again, that is what is 
called justice--blind to the parties.
  Actually, Judge Gorsuch has explained himself and what he thinks 
about decisions such as this. He did it in another case that I will 
talk about in a moment. Judge Gorsuch said:

       Often enough the law can be ``a[n] ass--a[n] idiot''--

  Quoting, of course, Charles Dickens--

     and there is little we judges can do about it, for it is (or 
     should be) emphatically our job to apply, not rewrite, the 
     law enacted by the people's representatives. Indeed, every 
     judge who likes every result he reaches is very likely a bad 
     judge, reaching for results he prefers rather than those the 
     law compels.

  Now, that statement came from the second case I referenced. It was a 
case called A.M. Holmes. In A.M. Holmes, a 13-year-old seventh grader 
was arrested for fake burping repeatedly in class. The majority said it 
was OK for him to be arrested and that, when his family sued the police 
officer, the police officer enjoyed qualified immunity.
  Judge Gorsuch dissented. This time he ruled for the little guy, 
literally and figuratively. Judge Gorsuch said: ``In my opinion, 
reading the statute passed by the legislature, this young man's family 
can file this lawsuit because disciplining a 13-year-old 7th grader for 
fake burping in class by arresting him instead of disciplining him is a 
bridge too far.''
  Now, once again, we had a little guy versus the big guy. This time 
Judge Gorsuch ruled for the little guy. But again, we have to look 
beyond the result. Even though he ruled for someone we can all 
sympathize with, Judge Gorsuch didn't base his decision on that. He 
based his decision on a good-faith application of the statutes of the 
facts controlling the case. He applied the law as written by the 
legislature. That is what legislatures do, and that is what Congresses 
do. They make the law and judges interpret the law. To be blunt, that 
is what we want in a judge.
  I want a judge. I don't want an ideologue. I am not interested in a 
judge who will use the judiciary to advance his own personal policy 
goals. I want a judge who will apply the law as written by the 
legislature or, in the case of the Constitution, as written by the 
Framers of the Constitution, as best that judge understands the law, 
not to try to reshape the law as he wishes it to be.
  To just comment about the last question that I raised earlier, again, 
one issue is whether or not we should confirm Judge Gorsuch to the 
Supreme Court, but the second issue is whether the Senate should even 
be allowed to vote at all. That is what this is all about when you 
distill it down to its basic essence.
  We are going to hear a lot about cloture, and we are going to hear a 
lot about the nuclear option. But this is what it boils down to: Should 
we or should we not even be able to be allowed to vote?
  Now I understand that reasonable people can disagree. I also 
understand that unreasonable people can disagree, and everybody in this 
body has a vote, and we all represent States. There are two Senators 
from every State--big States and little States--and everybody is 
entitled to be able to vote his or her conscience. But it is very, very 
important not only for the American judicial system but for American 
democracy that the Senate be allowed to vote on Judge Gorsuch.
  So to my friends on the other side of the aisle, I would say: Please 
allow us to vote. You can vote for or against Judge Gorsuch. I will not 
second-guess your judgment if you act sincerely, and I believe many of 
my colleagues are sincere. They are wrong, but they are sincere. But 
please allow the Senate to vote on this nomination. That is why I was 
sent to Washington.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. COTTON. Mr. President, this week the Senate will fulfill one of 
our most important responsibilities: advice and consent for a nominee 
to the Supreme Court. The stakes don't get much higher than a lifetime 
appointment to a court of final appeal, especially if the court has 
presumed over the last two generations to take more and more political 
and moral questions out of the hands of the people.
  President Trump has nominated Judge Neil Gorsuch, a distinguished 
jurist who understands the critical but limited role of the Federal 
courts in our constitutional system. To my knowledge, no Senator 
genuinely disputes his eminent qualifications, his judicial 
temperament, and his outstanding record over the last decade on the 
Tenth Circuit Court of Appeals.
  Indeed, Judge Gorsuch would appear headed toward an easy, 
noncontroversial confirmation based on the comments by Democratic 
Senators.
  The senior Senator from Colorado introduced Judge Gorsuch at his 
confirmation hearings with this high praise:

       I have no doubt that . . . Judge Gorsuch has profound 
     respect for an independent judiciary and the vital role it 
     plays as a check on the executive and legislative branches. I 
     may not always agree with his rulings, but I believe Judge 
     Gorsuch is unquestionably committed to the rule of law.

  The senior Senator from Indiana recently announced his support for 
Judge Gorsuch, saying:

       I believe that he is a qualified jurist who will base his 
     decisions on his understanding of the law and is well 
     respected among his peers.

  The senior Senator from West Virginia has noted:

       [Judge Gorsuch] has been consistently rated as a well-
     qualified jurist, the highest

[[Page 5373]]

     rating a jurist can receive, and I have found him to be an 
     honest and thoughtful man.

  The junior Senator from North Dakota also praised Judge Gorsuch for 
his ``record as a balanced, meticulous, and well-respected jurist who 
understands the rule of law.''
  Remember, these admiring statements all come from Democrats, and all 
of them support an up-or-down vote on confirming Judge Gorsuch.
  Even those who oppose Judge Gorsuch used to sing a different tune 
about the standards for judicial confirmation.
  For instance, the senior Senator from California put it best when she 
said:

       I think, when it comes to filibustering a Supreme Court 
     appointment, you really have to have something out there, 
     whether it's gross moral turpitude or something that comes to 
     the surface.

  Speaking of a previous Republican President's nominee, she further 
said:

       Now, I mean, this is a man I might disagree with. That 
     doesn't mean he shouldn't be on the court.

  In fact, President Obama filibustered a Supreme Court nomination 
while he was a Senator, yet later expressed regret over that decision. 
He said:

       I think that, historically, if you look at it, regardless 
     of what votes particular Senators have taken, there's been a 
     basic consensus, a basic understanding, that the Supreme 
     Court is different. And each caucus may decide who's going to 
     vote where and what but that basically you let the vote come 
     up, and you make sure that a well-qualified candidate is able 
     to join the bench even if you don't particularly agree with 
     him.

  Despite all of this, though, it appears that a radical Democratic 
minority intends to filibuster Judge Gorsuch's nomination. The minority 
leader is encouraging this extreme fringe, claiming, ``If Judge Gorsuch 
fails to earn 60 votes and fails to demonstrate he is mainstream enough 
to sit on the highest court, we should change the nominee, not the 
rules.''
  I will return later to the minority leader's central and ironic role 
in all of this. For now, let's take a trip down memory lane so as to 
understand just how radical this partisan filibuster would be.
  No Supreme Court nominee has ever failed because of a partisan 
filibuster--never, not once, ever--in the 228 years of our venerable 
Constitution. One nominee, Justice Abe Fortas--to be elevated to Chief 
Justice--lost one cloture vote in 1968 on a bipartisan basis. He then 
withdrew under an ethical cloud, but no Supreme Court nominee has ever 
been defeated by a partisan filibuster.
  This historical standard has nothing to do with changes in the Senate 
rules. The filibuster has been permitted under Senate rules since early 
in the 19th century. It is not a recent or a novel power. The cloture 
rule was adopted 100 years ago. In other words, at any point in our 
history, a Senate minority could have attempted to filibuster a Supreme 
Court nominee. They had the tools. The rules permitted it. It would 
have only taken one Senator--just one. Yet it never happened for a 
simple reason: self-restraint. While written rules are important, 
sometimes the unwritten rules are even more so. Habits, customs, mores, 
standards, traditions, practices--these are the things that make the 
world go round, in the U.S. Senate no less than in the game of life. 
Our form of self-government depends critically on this form of self-
government. Let's reconsider some recent nominees in light of these 
facts.
  Justice Clarence Thomas was probably the most controversial 
nomination in my lifetime, perhaps ever. He was the subject of a 
vicious campaign of lies and partisan smears--a ``high-tech lynching'' 
in his words. He was confirmed in 1991 by a bare majority of 52-to-48. 
Yet Justice Thomas did not face a filibuster. Not a single Senator 
tried to block the up-or-down vote on his nomination--not Joe Biden, 
not Ted Kennedy, not Robert Byrd, not John Kerry--not one. Why? Any one 
Senator could have demanded a cloture vote, could have insisted on the 
so-called 60-vote standard and, perhaps, defeated Justice Thomas's 
nomination, but they did not because they respected two centuries of 
Senate tradition and custom.
  It was likewise with Justice Sam Alito, whose nomination 
unquestionably shifted the Court's balance to the right in 2006. He, 
too, received fewer than 60 votes for confirmation--58 to be exact--but 
he received 72 votes for cloture. Here again, a large, bipartisan 
majority upheld the Senate tradition and custom against partisan 
filibusters of Supreme Court nominees. Even Judge Robert Bork, whose 
name is now used as a verb to mean the ``unfair partisan treatment of a 
judicial nominee,'' received an up-or-down vote in 1987. Yes, Judge 
Bork, who only received 42 votes for confirmation, did not face a 
partisan filibuster.
  But let's not stop with Supreme Court nominations. Let's also 
consider other kinds of nominations so that we can understand just how 
radical is the Democratic minority's position.
  To this day, there has never been a Cabinet nominee defeated by a 
partisan filibuster--never, not once, ever--in 228 years of Senate 
history. To this day, there has never been a trial court nominee 
defeated by a partisan filibuster--never, not once, ever--in 228 years 
of Senate history. Until 2003--just 14 years ago--there had never been 
an appellate court nominee defeated by a partisan filibuster.
  That is just how strong the custom against filibusters was. It had 
never successfully happened in 214 years. From our founding, through 
secession and civil war, through world wars, no matter how intense the 
feeling and how momentous the occasion, no matter how partisan the 
atmosphere, Senators always exercised self-restraint and allowed up-or-
down votes on nominees for the Supreme Court, the court of appeals, the 
trial court, and the Cabinet.
  But that changed in 2003, thanks in no small part to the senior 
Senator from New York, Chuck Schumer, now the minority leader. With the 
help of leftwing law professors, he convinced extremists and the 
Democratic caucus to filibuster President Bush's appellate court 
nominees. For the first time in more than two centuries of the U.S. 
Senate, a radical minority defeated nominations with a partisan 
filibuster.
  Why did the Senate start down this path? Some point to racial 
politics and Miguel Estrada, who was one of the most talented appellate 
litigators of his generation and President Bush's nominee to the D.C. 
Circuit. That court is often a proving ground for future Supreme Court 
nominees, and Mr. Estrada's confirmation might have enabled President 
Bush to nominate him, subsequently, to the Supreme Court. A Republican 
President appointing the first Hispanic Justice? Surely, the Democrats 
couldn't allow that.
  Whatever the reason, there can be no doubt that the minority leader 
has set in motion a chain of events over the last 14 years and has 
brought us to the point he claims to deplore today. So the Democrats 
can spare me any hand-wringing about Senate traditions and customs.
  The minority leader and like-minded extremists in the Democratic 
caucus can also spare us their exaggerated claims of the Republican 
obstruction of President Obama's judicial nominees. The Democrats, 
after all, were the ones who broke a 214-year-old tradition 
specifically to obstruct 10 of President Bush's nominees. Of course, 
the Republicans followed suit, though I would note that they have 
filibustered fewer judges over more years in their having been in the 
minority.
  Put simply, the Democrats broke one of the Senate's oldest customs in 
2003 so that they could filibuster Republican judges, and they 
subsequently filibustered more judges than did the Republicans. So it 
should come as no surprise that the Democrats took an even more radical 
step in 2013 when they used the so-called nuclear option to eliminate 
the filibuster for executive branch, trial court, and appellate court 
nominations. They broke the Senate rules by changing the Senate rules 
with a bare majority, not the effective two-thirds vote required under 
those rules.
  The radical Democrats will accept no constraints on their will to 
power--when in power. Whatever it takes to pack the courts with liberal 
extremists or to block eminently qualified Republican nominees is 
exactly what they will do.

[[Page 5374]]

  But don't take my word for it. Let's review what the Democrats were 
saying last year when they all believed they would be in power with 
Hillary Clinton as President and Democrats controlling the Senate. We 
did not hear much talk about the sacred 60-vote standard back then. On 
the contrary, the Democrats were promising to use the nuclear option 
again--this time to confirm a Democratic nominee to the Supreme Court.
  Former Senate Minority Leader Harry Reid said:

       I have set the Senate so, when I leave, we're going to be 
     able to get judges done with a majority. . . . If the 
     Republicans try to filibuster another circuit court judge, 
     but especially a Supreme Court Justice, I've told `em how, 
     and I've done it . . . in changing the rules of the Senate.

  The junior Senator from Virginia, who would have been Vice President 
had Secretary Clinton won, said, quite frankly, about the Supreme Court 
vacancy:

       If these guys think they are going to stonewall the filling 
     of that vacancy or other vacancies, then a Democratic Senate 
     majority will say, ``We're not going to let you thwart the 
     law.''

  The junior Senator from Oregon warned ominously:

       If there's deep abuse, we're going to have to consider 
     rules changes.

  The senior Senator from New Mexico perhaps summed it up best of all 
when he said:

       The Constitution does not give me the right to block a 
     qualified nominee no matter who is in the White House. . . . 
     A minority in the Senate should not be able to block 
     qualified nominees.

  Do not think for a minute that the radical Democrats would not have 
made good on these threats. They have exercised little restraint on 
judicial nominations over the last 14 years. They have betrayed over 
200 years of Senate tradition and custom. They would not start 
respecting those traditions now.
  In reality, there were good reasons to respect and uphold the old 
Senate tradition against the filibusters of nominees before 2003.
  First, our responsibility under the Constitution is not to choose but 
to advise and consent. A partisan filibuster would, essentially, 
encroach upon the President's power to nominate the person of his 
choice.
  Second, nominations are not susceptible to negotiation. We cannot 
split someone down the middle, Solomon-like. We can vote yes or no. 
This is not the case with legislation, where differences can be split, 
compromises negotiated, and bipartisan consensus reached.
  Third, when legislation fails to win 60 votes, it is not the end of 
the world; it can go back to the drawing board or be enacted through 
other legislative vehicles. But when nominations are long delayed or 
defeated, then real work is left undone, cases go unheard, disputes go 
unresolved, and the law remains unclear.
  It would have been better for the Senate if the minority leader and 
the Democrats had recognized these things in 2003 and not started us 
down this path, the end of which we reach this week. It is rarely a 
good thing when an institution ignores or breaks its customs and 
traditions, its unwritten rules. They should have known better, and 
they should have acted better. But we have come to this point because 
the radical Democrats didn't act any better.
  Now they propose to create a new standard never known to exist 
before: The Senate will not confirm a Republican President's nominees 
to the Supreme Court, because if the Democrats will filibuster Neil 
Gorsuch, then they will filibuster any Republican nominee. I will never 
accept this double standard, and neither will my colleagues. 
Republicans aren't going to be played for suckers and chumps.
  After this week, the Senate will be back to where it always was and 
where it should have remained: Nominees brought to the floor ought to 
receive an up-or-down, simple-majority vote. And don't expect to hear 
regret from me about it.
  There is no moral equivalence here between the two parties. To 
suggest any equivalence is to divorce action from its intent and aim. 
In 2003 and again at this moment, the radical Democrats overturned 
venerable Senate traditions. The Republicans are acting to restore 
them. Those who cannot see the difference, to borrow from Bill Buckley, 
would also see no difference between a man who pushes an old lady into 
the path of an oncoming bus and a man who pushes the old lady out of 
the path of the bus, because after all, both men push around old 
ladies.
  So I am not regretful. I am not wracked with guilt. I am not 
anguished. I am really not even disappointed. There are no school yard 
taunts of ``you did it first.'' There are no charges of hypocrisy. 
There is no pox on both our houses. The Republicans are prepared to use 
a tool the Democrats first abused in 2013 to restore a 214-year-old 
tradition the Democrats first broke in 2003, and we are supposed to 
feel guilty? Please. The radical Democrats brought this all on 
themselves and on the Senate. The responsibility rests solely and 
squarely on their shoulders.
  The minority leader is hoist with his own petard, the Senate is 
restored to a sensible, centuries-old tradition, and Judge Gorsuch is 
about to become Justice Gorsuch. Not a bad outcome. Not bad at all. 
Pretty good, in fact.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CRUZ. Mr. President, I come to the floor today to support the 
confirmation of Neil Gorsuch to serve as an Associate Justice on the 
Supreme Court of the United States. By any objective measure, Judge 
Gorsuch is impeccably qualified. He is a graduate of Columbia 
University and the Harvard Law School and was awarded a doctorate from 
Oxford. He is a former law clerk for the legendary Justice Byron White, 
as well as for Justice Kennedy. He has been a respected Federal 
appellate judge for a decade. Judge Gorsuch has spent a lifetime in the 
law, and his record indicates he will make an exemplary Justice.
  Just 2 weeks ago, Judge Gorsuch testified for 20 hours before the 
Senate Judiciary Committee. His conduct during the hearing only further 
confirmed what his record demonstrates: that Neil Gorsuch is a 
principled jurist and a good man. And I was glad for all of us to get 
that confirmation because Judge Gorsuch bears a heavy responsibility--
he is being asked to fill the seat of Justice Antonin Scalia. In truth, 
I doubt anyone could truly fill Justice Scalia's shoes. Justice Scalia 
was one of a kind, and his enormous impact on the law and on the Court 
will impact this Nation for generations to come.
  All of us miss him dearly, but I take solace in the knowledge that 
one of the ways in which I believe it will be easiest for Judge Gorsuch 
to imitate Scalia--perhaps the most important way--is judicial 
humility. Justice Scalia's greatest strength was not his amazing wit, 
his mighty pen, or his larger-than-life personality, as much as we 
loved those parts of him; rather, it was his consistent unwillingness 
to accumulate power to himself and to the courts. He refused to impose 
his own personal policy preferences on the law but instead understood 
that his role as a judge was simply to apply the law that the elected 
representatives of the people had enacted.
  This type of judging doesn't take otherworldly talents, although 
Scalia had that in abundance; instead, it takes character, integrity, 
and humility. Judge Gorsuch's lengthy record and his hearing testimony 
demonstrate that he has those attributes as well. He understands that 
his role as a judge is to apply the words of the Constitution and the 
laws of the United States to the specific cases that come before him, 
and nothing more. This is critical in an era when the Supreme Court has 
come to be seen by many--for good reason--as an activist Court, as a 
superlegislature that seeks to impose its own will in the place of the 
written law.
  It is this very humility that angers so many on the left. They don't 
want someone who humbly applies the law; rather, they demand nothing 
less than a person fully committed to enacting from the Supreme Court 
bench whatever policies the left is championing at

[[Page 5375]]

that given moment, because they know their only refuge is the courts 
because the American people would reject the policies at the voting 
booth. Judge Gorsuch is clearly not that kind of person, so they have 
committed to opposing his confirmation by whatever means necessary, 
legitimate or not.
  Indeed, if this were being decided on qualifications and record, 
Judge Gorsuch would be confirmed unanimously. We don't have to 
hypothesize about that because Judge Gorsuch has already been confirmed 
by this body a decade ago by voice vote, without recorded dissent. Not 
a single Senator objected--not Ted Kennedy, not Hillary Clinton, not 
Barack Obama, not Joe Biden, and not even Democratic Members who still 
serve in this Chamber, like Chuck Schumer, Dianne Feinstein, Pat Leahy, 
or Dick Durbin. Not one of them spoke out against Gorsuch's nomination 
to the court of appeals--not one.
  So what changed? The only thing that changed is that the radical left 
has become angry, extremely angry, and my Democratic colleagues are 
worried they will get opposed from their left in a primary. That is it. 
Their base demands total war, total obstruction, and they are 
begrudgingly bowing to this demand.
  Unfortunately for them, it has proven difficult to invent attacks 
against an obviously well-qualified judge like Judge Gorsuch. My 
Democratic colleagues couldn't get any legitimate grievance to stick at 
the hearings last week, despite their best efforts, but it hasn't 
stopped them from repeating their outlandish attacks over and over 
again. If the stakes weren't so high, it might even be humorous, but it 
isn't really funny because the primary argument the Democrats have made 
is dangerous. Their attack on Neil Gorsuch is a direct attack on the 
rule of law itself.
  Contrary to the very foundations of our government and legal system, 
my colleagues from across the aisle are arguing that Judge Gorsuch is 
unqualified to be a Justice because he allegedly failed to side with 
the ``little guy'' over the ``big guy.'' In their view, it is now the 
job of judges to reject equal protection, to take the blindfold off of 
Lady Justice, and instead judges should put their thumbs on the scales 
to actively discriminate against parties based on their identity.
  This notion of partisan, results-oriented judging is directly 
contrary to the constitutional system we have in this country. My 
Democratic colleagues are openly calling for judges to enforce their 
own political preferences from the bench, and they want to use a 
person's willingness or unwillingness to do so as a litmus test for who 
gets on the Court. This isn't even a jurisprudential position, it is a 
political position. And it is difficult to imagine a more effective way 
to destroy our judicial system--the best in the world, despite its 
flaws--than to adopt this results-oriented approach.
  Make no mistake, the Democrats' trumpeting of outcome-based judging 
will have consequences. Judges and potential judges nationwide will now 
have heard their siren call. You want smooth sailing in a confirmation 
hearing from the Democrats? Ignore the law, ignore the facts, and pick 
sides based upon whom you sympathize with--whoever is politically 
correct at that moment in time. My Democratic colleagues claim to 
detest attacks on the independent judiciary, but there aren't many 
attacks more dangerous and chilling of true independence and 
impartiality than the one they are making now.
  The public--the people who appear in court seeking an honest 
tribunal--have also heard this open call for bias, for prejudice, for 
discrimination, and I doubt they will soon forget.
  Luckily, Judge Gorsuch stood firm in his confirmation hearing. He 
reaffirmed what was clear from his record--that he will not legislate 
his own policy preferences from the bench and that he will respect the 
limited role a judge plays in our constitutional structure. He did all 
of this in the face of unrelenting opposition from my Democratic 
colleagues who demanded that he violate his judicial oath and swear to 
decide certain cases and political questions in a way that they would 
prefer. No recent nominee to the Supreme Court has ever made such 
pledges, and Judge Gorsuch rightfully refused to do so last week.
  Their demands of Judge Gorsuch were particularly galling given that 
this was the most transparent process in history for selecting a 
Supreme Court Justice. During the campaign, Donald Trump promised the 
American people that, if elected, he would choose a Justice in the mold 
of Justice Scalia. He laid out a specific list of 21 potential 
nominees, including Judge Gorsuch. The voters were able to see 
precisely whom President Trump would nominate, and they were able to 
decide for themselves if that was the future they wanted for the 
Supreme Court.
  Hillary Clinton, on the other hand, promised a very different kind of 
Justice. She promised a liberal judicial activist who would vote to 
undermine free speech, to undermine religious liberty, and to undermine 
the Second Amendment right to keep and bear arms.
  In a very real sense, this election was a referendum on the Supreme 
Court. The American people could decide for themselves between a 
faithful originalist vision of the Constitution or a progressive, 
liberal, activist vision, and the voters chose.
  Donald Trump is now President Trump, and he has kept his promise to 
the American people, selecting Judge Neil Gorsuch from that list of 21 
judges. Judge Gorsuch is no ordinary nominee. Because of this unique 
and transparent process, unprecedented in our Nation's history, his 
nomination carries with it a kind of super-legitimacy in that it has 
been ratified by the American people at the voting booth. Neil Gorsuch 
is not simply the President's nominee. It is the direction chosen by 
the American people, and I urge my colleagues to confirm him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. BOOKER. Mr. President, I rise today to voice my opposition to the 
nomination of Judge Neil Gorsuch to be an Associate Justice on the 
Supreme Court of the United States.
  The nomination of an individual to serve on the Supreme Court is a 
matter of tremendous importance. Supreme Court justices have the 
opportunity to shape, literally, and even to define American history 
for decades to come. Even more importantly, they have the opportunity 
to affect the lives and livelihoods of everyday Americans, now and in 
generations yet unborn.
  Few decisions in the Senate have a more profound consequence than the 
confirmation of a nominee for a lifetime seat on the highest Court in 
the land. I recognize that this is one of the most critical votes that 
I will take or that any Senator will cast.
  After reviewing Judge Gorsuch's record, I have decided to uphold my 
constitutional duty of service to advise and consent by opposing Judge 
Gorsuch's nomination at all stages of the confirmation process, 
including a vote on cloture or an up-or-down vote. I didn't come to 
this decision lightly. I arrived at this conclusion because I believe 
the next Associate Justice to the Supreme Court must be someone who 
understands the importance of judicial restraint, someone who will 
adhere to precedent, someone who will respect and has respect for all 
coequal branches of government, someone who views the Constitution as a 
living--not a static--document, someone whose judicial views actually 
fall within the mainstream of judicial thought and jurisprudence, and 
someone who has a deep understanding of the law, the Constitution, and 
its applications. Critically, I believe the next Supreme Court justice 
must be someone who understands the gravity of their work--that their 
decisions will affect livelihoods, will affect lives, and will affect 
the liberties and the rights that we value--not just for those in 
places of privilege and power but for all American citizens, for all of 
the people, now and for decades to come.
  The American people need the next Justice on the Nation's highest 
Court to be someone who will protect the rights for all--for everyone--
and who will ensure that the words literally inscribed above the 
Supreme Court--

[[Page 5376]]

``Equal Justice Under Law''--are made manifest in everyone's life.
  After careful consideration of Judge Gorsuch's record, his judicial 
philosophy, and after meeting with the nominee and examining remarks 
and answers to questions in his confirmation hearing, I do not believe 
Judge Gorsuch meets this high standard, and I cannot support his 
nomination to be a Supreme Court Justice.
  Judge Gorsuch is truly a well-credentialed jurist, but we must 
understand that a good resume is the beginning and not the end point of 
a standard by which we must measure nominees to serve on the Supreme 
Court. A good resume is necessary, but it is not sufficient to be on 
the highest Court of the land.
  When it comes to the Supreme Court, the Senate's duty to advise and 
consent means more than merely measuring an aptitude or understanding 
of the law. It means more than just looking at someone's college and 
law school. It means more than just admiring: Does this person have an 
impressive resume? It necessitates an understanding of it. It actually 
necessitates an empathy for how these decisions will affect the lives 
of everyday Americans. Do they have the capacity to stand for all of 
us?
  I take literally the way the Constitution began. It began with the 
words in the preamble to the Constitution. In many ways, it is a direct 
point at what is at stake when we nominate an individual to the Supreme 
Court. It is a critical way that we began. It begins by saying: ``We 
the People.'' The inclusion of these words at the start of one of our 
Nation's founding documents is actually no accident. It was the subject 
of consternation and even discussion and debate.
  It is worth noting that the original draft of the preamble of the 
Constitution of the United States, as prepared by a man named 
Gouverneur Morris, had a different beginning. It said: We the people of 
the States of New Hampshire, Massachusetts, Rhode Island, and so forth. 
But Morris and other drafters of the Constitution made the conclusion--
and, really, the conscious decision--to remove references to States, to 
bring it back to the people--that the power of government is derived by 
the people and that is the fundamental aspect of our society; that it 
is ``we the people''--not people of any one State, not people of any 
one religion, not people of any one race or class, but ``we the 
people''--all of the people.
  In a debate about this change, it was James Madison who argued:

       In this particular respect the distinction between the 
     existing and the proposed governments is very material. The 
     existing system has been derived from the dependent 
     derivative authority of the legislatures of the states; 
     whereas, this is derived from the superior power of the 
     people.

  It is a deference and it is a reverence for the understanding of the 
power of the people--all people. It is no accident that this is how our 
Constitution began, and it is the spirit in our Nation which has helped 
us for centuries to expand upon this ideal of ``we the people.''
  Understand this: Some of our greatest leaders fought to make sure 
that these ideals were far vaster, far more inclusive. I note, for 
instance, that Susan B. Anthony said it was ``we the people''--not we 
the White male citizens, not we the male citizens, but we the whole 
people who formed the Union. And we formed it not to give the blessings 
of liberty but to secure them, not to the half of ourselves and to the 
half of our prosperity but to the whole people--women and men. You see, 
this fundamental understanding of our Constitution expanded to be more 
inclusive, to include women and minorities and religious minorities. 
This conception of ``we the people'' is critical.
  It is unfortunate that too often, even with the best intentions, our 
elected officials, Supreme Court Justices, and even Presidents have 
forgotten the precision of these words which were chosen. But despite 
this, because of heroes like Susan B. Anthony and others, the people of 
this Nation have remembered them, and our Nation has grown to be who we 
are now. We often actually take for granted the critical role the 
Supreme Court has played in focusing on the people--on all the people. 
This has been the power and majesty of the Supreme Court--this focusing 
of individual rights, the dignity, the worth, the value of all people.
  In the Supreme Court case in Hammer v. Dagenhart, the Supreme Court 
ruled that Congress has the power to enact labor laws that protect 
children. They remembered ``we the people''--in this case, citizens 
against powerful corporations.
  In West Coast Hotel Co. v. Parrish, the Supreme Court upheld the 
constitutionality of a State minimum wage law, again, focusing on the 
people--``we the people.''
  In Mapp v. Ohio, when the Supreme Court decided about evidence 
obtained through the illegal search--the violation of individual 
privacy--they remembered, again, ``we the people.''
  In New York Times Co. v. Sullivan, when the Supreme Court protected 
the rights of everyday citizens to criticize their government, they 
remembered that sovereignty, that power, that importance of ``we the 
people.''
  In Baker v. Carr, when the Supreme Court established the principle of 
one person, one vote, they remembered ``we the people.''
  There are so many of the rulings during the 1950s and 1960s governing 
issues of race in our Nation, to which so many of us in our Nation owe 
our very success, the opportunity that was expanded because the Supreme 
Court--against social mores, against laws of States--focused on ``we 
the people.''
  Perhaps most famous of those is Brown v. Board of Education, when the 
Supreme Court asserted that separate but equal had no place in the 
education of our children, and they remembered ``we the people.''
  In Loving v. Virginia, when the Supreme Court ruled unconstitutional 
the State laws that banned interracial marriage--that ideal of being 
able to join in union with someone you love, regardless of race--the 
Supreme Court remembered ``we the people.''
  In Olmstead v. L.C., when the Supreme Court reinforced the right of 
people with developmental disabilities to live in the community and not 
be institutionalized, they saw a greater inclusion of all Americans. 
They remembered ``we the people.''
  I stood on the Supreme Court steps and I sat in on the Supreme Court 
arguments in Obergefell v. Hodges, when the Supreme Court ultimately 
ruled that State laws cannot stop you from marrying whom you love. They 
remembered. They saw the dignity and the worth of all of the people and 
ensured that equality. They remembered ``we the people.''
  In each of these cases, so much was at stake--the rights of workers, 
the rights of children, the rights of people with disabilities, the 
rights of minorities, the rights of women, voting rights, civil rights, 
our rights--American rights. The Supreme Court, with jurists on the 
right and the left, jurists appointed by Republicans and Democrats, 
looked to people and affirmed dignity and worth and well-being.
  But these are not just issues that were done in the past. The Supreme 
Court is going to be again confronted by historic and deeply 
consequential cases. There is still so much at stake, and that is why 
this decision before the Senate is so consequential. The right to gain 
access to birth control, the right to criticize your elected officials, 
the right to marry someone you love--that is still at stake.
  I cannot vote in support of a nominee whom I don't trust to protect 
American individuals, to understand the expansive nature of that idea 
of ``we the people.'' Judge Gorsuch is someone who, in his own words, 
has said judges should try to ``apply the law as it is, focusing 
backward, not forward.'' Based on his record and his writing, it is 
clear to me that Judge Gorsuch's own judicial philosophy leaves out 
critically important elements of democratic governance.
  Judge Gorsuch's evasive answers to questions during his confirmation 
hearing didn't do anything to allay my concerns. ``We the People'' are 
the first words of the Constitution. These words, I fear based on Judge 
Gorsuch's

[[Page 5377]]

record, are not his greatest consideration. In fact, at times, when he 
issues his judicial opinions, they look as if those individuals that 
make up our society--``we the people''--are the least of his 
considerations.
  Take for example, Alphonse Maddin, the man who was working through 
the night in the dead of winter as a truckdriver when his brakes 
unfortunately froze on him. Knowing the danger of continuing to drive 
with frozen brakes--the danger to himself and other motorists on the 
road--Alphonse pulled over to the side of the road and called for help.
  As several of my colleagues have noted in Judge Gorsuch's 
confirmation hearing and on the floor, Alphonse waited over 2 hours in 
the freezing cold without heat, experiencing systems of hypothermia. 
After no help arrived, Alphonse feared for his life, and, ultimately, 
left his trailer to find help.
  Less than a week after the incident, Alphonse was fired for 
abandoning his trailer. He filed a complaint with the Department of 
Labor and the case was brought to the Tenth Circuit Court of Appeals, 
where all but one of the judges ruled in favor of Alphonse--a guy who 
made a practical decision, an urgent decision, to save his own life and 
not risk the lives of others. But the judge who ruled against this 
individual, in favor of the corporation, was Judge Neil Gorsuch.
  He chose to save his own life and protect the lives of others who had 
been put in harm's way if he chose another option, and he was fired for 
it. Every judge on the Tenth Circuit supported that decision except for 
Judge Gorsuch.
  ``We the people'' includes Luke, a student with a disability. He was 
diagnosed with autism at the age of 2. When Luke entered kindergarten, 
he began receiving specialized educational services from a school 
district as ensured by the Individuals with Disabilities Education Act, 
or IDEA. Congress debated and passed, with Republicans and Democrats, 
an act that says children with disabilities are entitled to receive a 
free and appropriate public education.
  Between kindergarten and the second grade, Luke achieved many of the 
goals of his individualized education program. But when Luke's family 
moved to Colorado and he enrolled in a new public school, he had 
trouble adjusting, and Luke regressed in areas in which he had 
previously done well. To better suit Luke's needs, his parents, who 
tried to get him better care, eventually withdrew him from his local 
school and enrolled him in a private residential school for children 
with autism. His parents sought reimbursement for the costs of that 
private school, but the public school district refused to pay. By the 
time Luke's case reached the Tenth Circuit, a Federal judge and two 
administrative courts had agreed that the school district should pay 
because Luke did not receive the free and appropriate education to 
which he was entitled.
  The question for Judge Gorsuch was, What constitutes an appropriate 
education? In that ruling, Judge Gorsuch wrote the opinion saying that 
the educational benefits mandated by IDEA must be ``merely more than de 
minimis.'' That was the standard that he set for one of our American 
children. Because the school district gave Luke a merely more than de 
minimis education, Judge Gorsuch ruled that Luke's parents were not 
entitled to reimbursement.
  But just two weeks ago, the Supreme Court unanimously rejected Judge 
Gorsuch's ``merely more than de minimis'' standard. They unanimously 
rejected Judge Gorsuch's standard as contrary to the intent of 
Congress. In fact, at the very moment when Judge Gorsuch testified 
before the Judiciary Committee, Chief Justice Roberts wrote an opinion 
rejecting Gorsuch's IDEA standard, saying:

       When all is said and done, a student offered an educational 
     program providing ``merely more than de minimis'' progress 
     from year to year can hardly be said to have been offered an 
     education at all.

  Judge Gorsuch's misinterpretation of the law--depriving a child with 
a disability of the education he deserves--should be cause for concern 
to any of my colleagues as they are promoting him to the highest Court 
in the land. It is this idea that the powerless, who fight against 
these corporations or big institutions and turn to the court system as 
their avenue to get the equal justice under the law that will view 
them--whether it is a corporation, whether it is a government--as an 
equal under the law and give them their right to be heard.
  This is what ``we the people'' is. It means people like Alphonse 
Maddin and Luke, whom Judge Gorsuch ruled against. It also means female 
workers who want access to contraceptive coverage but were denied by 
their employer, denied by a corporation. Judge Gorsuch ruled against 
the people and for the corporation.
  ``We the people'' means those millions of Americans who rely on 
Planned Parenthood centers for healthcare. Judge Gorsuch ruled against 
those people seeking what, in some counties, is their only access to 
contraceptive care. ``We the people'' means the people harmed by a 
medical device manufacturer's urging of unsafe, off-label uses. Judge 
Gorsuch ruled against the people injured and for the manufacturers, for 
the corporation.
  ``We the people'' means that a worker fatally electrocuted while on 
the job due to inadequate training, whose families sought justice--
Judge Gorsuch ruled against the individual and for the corporation.
  ``We the people'' means the woman prevented from suing for sexual 
harassment, not because sexual harassment didn't exist but because she 
didn't report it quickly enough. Judge Gorsuch supported the 
corporation against the woman.
  ``We the people'' means a transgender woman who is denied access to a 
bathroom at work. Judge Gorsuch ruled against the individual in favor 
of the corporation.
  ``We the people'' means that every single American deserves to have 
their civil rights, deserves to have their equality protected by the 
judicial branch, which is often their last avenue toward justice. It is 
often their last hope against the powerful, against the wealthy. But 
Judge Gorsuch's record in everything--from workers' rights to women's 
rights, to civil rights, to the rights of children with disabilities, 
to the rights of a guy on the side of a highway to save his own life--
suggests that he has forgotten perhaps the most important element of 
the Constitution: It exists to protect and serve the American people, 
not corporations, not lobbyists, not those rich enough to hire big, 
fancy law firms. It doesn't exist to serve a political ideology. It 
exists to serve ``we the people.''
  I am not confident in Judge Gorsuch's ability as a Supreme Court 
Justice to safeguard the rights and liberties of all Americans, to 
prioritize judicial restraint over judicial ideology, to ensure equal 
justice under the law, and to understand and act in a way that 
indicates that the lives of real people who are struggling against 
often seemingly insurmountable odds--that for them, everything is on 
the line. I am not sure that Judge Gorsuch on the Supreme Court can 
honor this tradition.
  ``We the people'' means an independent judiciary that will not close 
the courthouse doors on people, on our civil rights--that will not look 
at litigants as just pawns in the larger ideological context of ideas 
but will see the humanity of every American; that will have a 
courageous empathy to understand their circumstances and their 
struggles and put that in accordance with the values of a nation where 
we all swear an oath for liberty and justice for all the people.
  Over 75 years ago, Justice Hugo Black encompassed the basic ideal of 
the role of Federal courts in protecting citizens' rights when he wrote 
these words:

       No higher duty, or more solemn responsibility, rests upon 
     this Court, than that of translating into living law and 
     maintaining this constitutional shield deliberately planned 
     and inscribed for the benefit of every human being subject to 
     our Constitution--of whatever race, creed or persuasion.


[[Page 5378]]


  Yet Judge Gorsuch's own writings demonstrate a failure to grasp this 
understanding of the role of courts to protect all people--and I quote, 
again, Justice Black--``whatever race, creed, or persuasion.''
  In an opinion article for the National Review, entitled ``Liberals 
and Lawsuits,'' Judge Gorsuch expressed his skepticism about civil 
rights litigation as merely a pursuit of a ``social agenda.'' He wrote:

       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 for 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 a place to 
     debate social policy is bad for the country and bad for the 
     judiciary.

  I wonder what Oliver Brown, plaintiff in the seminal case of Brown v. 
Board of Education would say to Judge Gorsuch? Was he ``addicted'' to 
the courtroom to advance his social agenda? Or was the courtroom his 
avenue to justice against profound oppression?
  I wonder what James Obergefell would say to Judge Gorsuch. Was he 
``addicted'' to the courtroom when he sought to be able to marry the 
person he loved? Or did Oliver just want to bring the truth to the idea 
that separate but equal was actually discriminatory, demeaning, and 
degrading, not just to the individuals who are discriminated against 
but demeaning to us as a people and a nation?
  Judge Gorsuch's actions call into question whether he understands the 
proper role of the courts. Does he understand that Federal courts are 
the proper forum for constitutional disputes that protect American's 
basic rights? This is not about liberal or democrat; this is about 
individuals who are often fighting battles against powerful interests.
  It was the journalist and editor William Allen White who said in 
1936:

       Liberty . . . must be something more than a man's 
     conception of his rights, much more than his desire to fight 
     for his own rights. True liberty is founded upon a lively 
     sense of the rights of others and a fighting conviction that 
     the rights of others must be maintained.

  I do not believe Judge Gorsuch possesses this ``fighting conviction'' 
that we need in a Supreme Court Justice to forcefully and fearlessly, 
without regard to politics or favor or privilege or wealth, protect the 
rights of others, to protect the rights of all Americans, to protect 
the rights of ``we the people.'' I do not believe that Judge Gorsuch 
will work to fiercely defend the rights of all Americans. I do not 
believe he possesses that fighting conviction that ``we the people'' 
must be committed above all else to one another.
  Again, I do not take the decision to oppose Judge Gorsuch's 
nomination lightly. I understand what is at stake. I am fortunate to 
represent hard-working New Jerseyans in the U.S. Senate, and when I 
took the oath to support and defend the Constitution, I made a promise 
to my constituents and the American people not to only discharge my 
duties but at every opportunity to work across the aisle, to protect 
their rights and interests. That means a lot to me.
  So many of my proudest moments in the Senate are from this bipartisan 
cooperation that I have found with so many of my colleagues. I do not 
stand here today to question their motives. I do not stand here today 
to impugn them in any way because when I go home, people are not 
concerned about the partisan politics. They are concerned about their 
lives, their livelihoods--about the issues that affect them and their 
families, their neighborhoods, their community. They want people in 
this body and in the courts across the street to protect the rights of 
Americans, protect consumers, protect our kids and our environment, but 
this is, in fact, what I believe the nominee we are all considering has 
shown that he will not do.
  It is no secret that Judge Gorsuch's nomination comes at a very 
divisive time for this body and a challenging time for this country. We 
have experienced great times of turmoil and polarization before in this 
Nation and in this body. In the Federalist Papers, written over two 
centuries ago, James Madison warns in Federalist Paper No. 10 about 
what he calls the ``mischiefs of faction'' and its inevitability--that 
citizens of the Nation and their political parties will undoubtedly 
disagree and will possess competing interests. Madison asserted that 
the existence of the legislative branch would guard against some of the 
worst effects of this reality. He wrote that those elected to represent 
the American people in the legislature would be those ``whose wisdom 
may best discern the true interests of their country and whose 
patriotism and love of justice will be least likely to sacrifice it to 
a temporary or partial consideration.''
  When this body is at its best, I believe that is true. I have seen 
that kind of partnership in this body. But I am afraid that we are 
indeed at a troubling time--a troubling time in history for the Senate 
where it seems that the reverse of Madison's hopes have become 
reflective of the truth we are experiencing because we are now facing a 
vote on a Supreme Court nominee whose confirmation, I believe, would be 
a sacrifice to temporary and partial considerations as opposed to the 
larger interests of our country.
  In my short time in the body--just over 3\1/2\ years--I have come to 
this floor to speak on the nominations of two different Supreme Court 
Justices to serve here in the United States. The first was Judge 
Merrick Garland. He was not only well qualified, intelligent, and 
capable, he was moderate. President Obama even sought input from 
Republicans about choosing someone who was a mainstream jurist. He was 
more than qualified to sit on the Supreme Court, but he was actually 
someone who could bring folks together. His qualifications, his 
aptitude to serve, and his moderate philosophy were not reflected in 
how we dealt with that nomination.
  I believe he deserved an up-or-down vote. Even if it was a 60-vote 
threshold, he deserved an up-or-down vote. More than that, he should 
have had the opportunity to meet with Senators, Republican and 
Democratic, like Gorsuch has met with Senators, Republican and 
Democratic. He deserved to have a committee hearing. He deserved to be 
voted on up or down in that committee, and he deserved to have his 
nomination come to the floor. Whether a 60-vote threshold or a 50-vote 
threshold, he deserved an up-or-down vote, but he did not get one.
  The Garland nomination was the bookend to an era we have been 
experiencing, that I have been witnessing, of obstruction, and there 
has been finger-pointing on both sides. But let's be clear about what 
happened during the Obama administration. During President Obama's time 
in office, we saw historic obstruction like never before. Seventy-nine 
of President Obama's judicial nominees were blocked by the filibusters. 
Seventy-nine nominees were blocked at a time when the judiciary, an 
independent branch of government, was saying: We are in judicial crisis 
in many jurisdictions. Seventy-nine of Obama's judges were blocked, 
compared to 68 nominees obstructed under all Presidents combined. All 
of the obstruction from Democrats and Republicans and other parties, 
and only 68 nominees were obstructed, compared to President Obama, 
where there were 79.
  I do not possess the same view as those who last year believed this 
seat should remain vacant and took the obstruction during the Obama 
Presidency to a much higher level. I believe that seat should have been 
filled not by an extreme jurist but by someone who could have tempered 
the partisanship of our time, someone who could have brought us 
together. It was a wise choice at a divisive time in our country.
  President Obama did not choose somebody from further left; he chose a 
moderate Justice who probably could have--if he had been given an up-
or-down vote--commanded 60 votes. At this time, that is what President 
Trump should have done--put forward a nominee who could have brought 
this country together, a moderate nominee, someone within the judicial 
mainstream. But he hasn't.
  I believe a 60-vote threshold right now is more than appropriate at 
this

[[Page 5379]]

moment in history. There are Republican judicial nominees who could 
garner 60 votes in this Chamber. The 60-vote threshold exists because a 
person confirmed to serve on the Supreme Court at this time should be 
mainstream and independent enough to garner that two-thirds support.
  The 60-vote threshold exists because confirmation of a Justice to the 
Supreme Court is one of the most important duties we perform, one of 
the most important positions in all of American Government. It is 
someone who will have an impact on our society, shaping it and forming 
it for generations to come.
  This President should have sought real advice and consent from the 
entire Senate, but instead he turned to the judicial extreme.
  Now more than ever, we need a threshold that can pull our nominees 
back to the mainstream, that can begin to heal the divisions. I do not 
believe it is in the best interests of my constituents or the American 
people to confirm someone so extreme on a 50-vote margin. It should be 
60 votes.
  I urge my colleagues to understand that this judge threatens those 
ideals we hold precious, those words at the very beginning of our 
Constitution, ``We the People.'' I urge people to understand that this 
is the time more than ever that we must continue to fight to defend the 
marginalized, the weak, the people who do not possess wealth, the 
people who are standing against powerful corporations, that we cannot 
reverse a tradition where our courts were the main societal avenue in 
which people could receive equal justice under the law. We cannot put 
someone in office who has shown throughout their judicial record to be 
contrary to that.
  For the sake of this body, now more than ever, it is my hope that we 
can see a judicial nominee who will help to heal wounds and not create 
them, help to elevate the unity of us as a people, who will help to 
affirm the ideals of our Nation and the very conception that we are one 
people, we are one Nation, and we hold one destiny.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Rubio). The Senator from Virginia.
  Mr. WARNER. Mr. President, first of all, let me thank my friend the 
Senator from New Jersey for his statement. I, too, share the belief 
that there was a better way to go about this judicial nomination 
process. I think as well that traditions such as a 60-vote margin 
should be maintained.
  I think, frankly, neither party comes to this issue completely with 
clean hands, with the Democrats' action in 2013. But clearly our 
colleagues' actions of not even giving someone of such character as 
Merrick Garland the courtesy of meetings, a hearing, and then an up-or-
down vote--for that and for many other reasons, I will be joining my 
friend from New Jersey in voting against Judge Gorsuch and making sure 
that we use all of our available tools. So I thank him for those 
comments.


                      Tribute to Federal Employees

      Kirk Yeager, Dennis Wagner, Edward Grace, and Mariela Melero

  Mr. President, that sense of what we are dealing with now in our 
politics today is the subject that I want to speak about for a few 
minutes; that is, the incredibly important efforts made each and every 
day by our public servants.
  We often forget that our public servants, our Federal employees, go 
to work every day with the sole mission to make the country a better 
and safer place. Day after day they go to work, receiving little 
recognition for the great work they do. Since 2010, I have come to the 
Senate floor to honor exemplary Federal employees--a tradition that was 
begun by my friend Senator Ted Kaufman. One of those Federal employees 
is actually sitting at the desk and has helped me and I know so many 
other Senators as we have tried to learn this job.
  The reason I wanted to come back today was because today, in light of 
a governmentwide hiring freeze, the reinstatement of the so-called 
Holman rule, a proposed budget that would deeply cut our Federal 
workforce, and candidly, in these times, the targeting of career civil 
servants by certain conservative media outlets, this tradition of 
honoring those who serve, oftentimes without recognition, our Federal 
employees, feels even more important.
  Our Federal employees--over 170,000 of them Virginians--serve their 
country dutifully regardless of the party in power. Not only do they 
carry out the mission of the administration they are serving, but they 
also provide countless benefits to the American public. It is my hope 
that my colleagues and the current administration will remember these 
facts and set aside ideology when considering actions that affect our 
Federal agencies and their workforce.
  Today I want to take a couple of moments to recognize a few 
Virginians who are working behind the scenes to actually make our 
government more efficient and more effective.
  First, I would like to recognize Kirk Yeager. Kirk is the Chief 
Explosives Scientist at the FBI. In this role, he both responds to 
crises and oversees the Bureau's efforts to better understand the 
explosives terrorists use. Having studied bomb-making for more than 20 
years, Kirk works with both domestic and foreign law enforcement 
agencies and has developed and provided crucial training to every bomb 
squad in the United States and to many of our foreign allies. Through 
his work, Kirk has made U.S. civilian law enforcement personnel and 
those who serve our country in the military much safer.
  Next, I would like to recognize Dennis Wagner. Dennis is the Director 
of the Quality Improvement and Innovation Group at the Centers for 
Medicare and Medicaid Services. As part of a team at CMS, Dennis 
contributed to the creation of the Partnership for Patients, a public-
private partnership to increase patient safety and reduce readmissions 
to U.S. hospitals. Their work has produced outstanding results, 
including 2.1 million fewer patients harmed and $20 billion saved. That 
is a remarkable statistic, and obviously the work going on at CMS--an 
agency that does not get a lot of recognition; candidly, most people 
don't even know--a person like this gentleman, Dennis, has made our 
healthcare system better.
  Third, I would like to recognize Edward Grace. Edward is the Deputy 
Chief in the Office of Law Enforcement at the U.S. Fish and Wildlife 
Service. In that role, Edward has been leading a nationwide law 
enforcement investigation known as Operation Crash, targeting those who 
smuggle and trade rhino horns and elephant ivory. In addition to 
assisting in the Department's efforts to preserve global biodiversity, 
Operation Crash has led to 41 arrests, 30 convictions, and the seizure 
of millions of dollars in smuggled goods--results that show that those 
seeking to engage in this kind of activity--there will be real legal 
consequences to their actions.
  Finally, I would like to recognize Mariela Melero. Mariela is the 
Associate Director for the Customer Service and Public Engagement 
Directorate at the U.S. Citizenship and Immigration Services. Mariela 
and her team have been working to improve the way USCIS interacts with 
the millions of people who contact their office seeking citizenship, 
permanent residency, refugee status, or other assistance. Central to 
that mission are the innovative improvements Mariela has made to the 
myUSCIS website, as well as the launch of Emma, a virtual assistant 
that in a typical month answers nearly 500,000 questions with a success 
rate of nearly 90 percent.
  To ensure that this resource was available to a wide range of 
customers, Mariela also oversaw the creation of a Spanish-speaking Emma 
that came online in 2016. These important improvements have been 
crucial to driving efficiency for the world's largest immigration 
system in the world.
  Again, I hope my colleagues--as we think about budgets and numbers 
and when we hear people who oftentimes denigrate our Federal 
employees--will remember some of these individuals who, not for great 
reward or recognition, actually get up each and every day and go to 
work, trying to ensure that our government functions for the hundreds 
of millions of Americans who

[[Page 5380]]

oftentimes don't acknowledge or recognize their services enough.
  Mr. President, as I mentioned at the outset, I know this is a time 
when most of my colleagues are speaking on Judge Gorsuch. I will simply 
add, after a careful review of his record and my belief as well, that 
his unwillingness to really give truly straight answers in terms of 
comments--whether it was basic, decided legal opinions like Brown v. 
Board of Education or Roe v. Wade or Citizens United--and his failure 
to even answer those questions has unfortunately led me to join with so 
many of my other colleagues in voting against him.
  I still hope that there is a way that we can avoid changing the rules 
of the Senate during this process. I know there are many colleagues who 
are working on those efforts. If they are successful, I look forward to 
joining them.
  As we think about Judge Gorsuch, as we recognize the challenges we 
have ahead of us, let us also--those of us who serve in this body--
continue to take a moment every day to say thanks to a Federal employee 
who, in one way or another, works tirelessly day in and day out to make 
our country a better place.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. CARPER. 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. CARPER. Mr. President, last week on this Senate floor, I made the 
case for Democrats and Republicans joining together to confirm one of 
the most qualified individuals ever nominated to the U.S. Supreme 
Court. I was referring, of course, to Chief Judge Merrick Garland.
  I don't wish to belabor the point here this evening, but it bears 
repeating that Judge Garland brought with him more Federal judicial 
experience than any Supreme Court nominee in the history of the United 
States.
  It bears repeating that Judge Garland is an extraordinary man, a good 
man, a brilliant man, a fair judge, and a consensus builder on the 
bench in a day and age when we need consensus builders on the Supreme 
Court and other courts across the country. Frankly, we also need them 
right here on this floor, in this body.
  It bears repeating that the obstruction of Judge Garland's nomination 
was unprecedented in the history of the United States of America and in 
the history of the Senate.
  Since the Senate Judiciary Committee began holding public hearings on 
Supreme Court nominations in 1916, no Supreme Court nominee had ever 
been denied a hearing and a vote--until Judge Garland. Many of our 
Republican colleagues refused to meet with him. When his nomination 
expired at noon on January 3, 2017, 293 days had passed--293 wasted 
days.
  A good man was treated badly. I believe our Constitution was treated 
badly. I believe that the obstruction of Judge Garland's nomination was 
unprecedented. I believe it was shameful. From my view, we cannot 
pretend that this vacant seat on the Supreme Court--what I believe 
should be Judge Garland's seat--is anything other than blatant 
partisanship.
  I believe that upholding my oath to protect the Constitution means 
finding agreement on moving Judge Garland's nomination forward at the 
same time--at the same time as that of Judge Neil Gorsuch, President 
Trump's Supreme Court nominee.
  I have no choice but to oppose Judge Gorsuch's nomination this week 
because anything else would be a stamp of approval for what I believe 
is playing politics with Supreme Court nominees. I cannot support Judge 
Gorsuch's nomination because we cannot have one set of rules for 
Democratic Presidents and another set of rules for Republican 
Presidents.
  Some of my colleagues and maybe some of the Americans listening at 
home tonight may be asking themselves: Well, Senator Carper, didn't the 
Democrats change the rules for judges when they were in the majority? 
That is a fair question. To that, I would say yes. That is true for 
lower court nominees, nominees to Federal district courts and courts of 
appeals.
  But it wasn't because Senator Harry Reid woke up one morning and 
decided that was the day to change the rules of the Senate. A decision 
of this magnitude didn't happen on a whim. It was because, by the time 
November 2013 had arrived, our Republican friends had attempted to 
block--get this--more nominations in the first 5 years of President 
Obama's tenure than all other Presidents combined. Let me say that 
again. It was because, by the time November 2013 had arrived, our 
Republican friends had attempted to block more nominations in the first 
5 years of President Obama's tenure than all other Presidents combined.
  It wasn't the unprecedented use of cloture motions--79 cloture 
motions--during those 5 years that precipitated Democrats' seeking a 
solution to restore the capability of the Senate to do its job. It was 
because our Republican friends refused to consider any nominee--any 
nominee--to the D.C. Circuit Court of Appeals, despite three critical 
vacancies on our Nation's second highest court.
  So, yes, it is true that Democrats supported a change that allowed a 
vote on those nominees, but it was because our Republican friends took 
the unheard of position that no nominees--no nominees, no matter their 
qualifications--were entitled to a vote.
  I should note that Democrats were careful to preserve the 60 votes 
for Supreme Court nominees.
  Let me just say that, if there is any position in the Federal 
Government that should require at least 60 votes, my view is it should 
be the Supreme Court, and that is the rule under which we operate as of 
this moment.
  One of the reasons why is because Supreme Court vacancies come around 
quite rarely. When they do, we need to ensure that debate is robust, we 
need to ensure that the nominee is from the judicial and the political 
mainstream, and we need to ensure that these lifetime appointments are 
held to the highest standards. In other words, I believe we need a 
nominee like Judge Merrick Garland.
  Despite his own impressive resume, I have concerns with Judge 
Gorsuch's nomination beyond the treatment of Judge Garland, and I have 
concerns with the way that our debate has not been, frankly, robust. I 
have concerns that Judge Gorsuch's views are outside the judicial and 
political mainstream, and I have concerns about what others have termed 
``evasiveness.'' His evasiveness before the Judiciary Committee does 
not meet the high standards that we should expect for those lifetime 
appointments.
  I would be remiss if I did not mention what I referred to last week 
as the cloud that lingers still over President Trump's campaign. Like 
many Americans, I read the news related to Russia and the Trump 
campaign, and I come to the inescapable conclusion that the cloud is 
darkening and the forecast is a matter of grave concern for our 
Constitution.
  FBI Director Jim Comey has testified under oath that there is an 
ongoing investigation to determine the links between the Trump campaign 
and Russia, an adversary that attacked our election and undermined a 
free and fair election to change the outcome of that election. From all 
appearances, they did.
  To hastily move forward with Judge Gorsuch--who is 49 years old, who 
could serve on the Supreme Court well into the middle of this century--
without first getting to the bottom of the suspicious and irregular 
actions of Trump campaign officials would be, in my view, a mistake.
  For many Americans, this Supreme Court seat will always come with an 
asterisk attached to it. They believe and I believe that it was a 
stolen seat that belonged to Judge Merrick Garland.
  Many Americans are wondering why we are rushing to fill a lifetime 
vacancy while President Trump's campaign remains under investigation 
and will for at least some while.

[[Page 5381]]

  I believe we have some time. Judge Garland waited 293 days for a 
hearing and a vote that never came. Judge Gorsuch has waited 48 days 
for a hearing and many of our Republican friends would like to see him 
seated this week.
  Again, I would say: Judge Merrick Garland waited 293 days for a 
hearing and a vote that never, never came.
  What we face here today, I think, is a rush to judgment. I would just 
say that we have time. We ought to hit the pause button on this 
nomination.
  The American people are watching us, and history will judge us. I 
fear that history may judge us poorly if anyone other than Merrick 
Garland is confirmed at this time. I fear that history may judge us 
poorly if we do not insist that the Trump campaign is first cleared of 
any wrongdoing before we move forward. We need to get this right. We 
have time to get this right.
  The Senate has been through it all. The good men and women of the 
Senate have always disagreed--sometimes passionately, oftentimes 
loudly. I understand that this disagreement before us may seem 
irresolvable, but that is only if we seek to cut off debate and admit 
defeat. Personally speaking, I am not ready to do that today or this 
week.
  I believe we have time. I believe we have the opportunity to right a 
historic wrong. We have not just an opportunity to right a historic 
wrong but also an obligation to get this right.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. 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. McCONNELL. Mr. President, it is pretty obvious, based on the 
announcement Senators have made, that we are experiencing the first 
partisan filibuster of a Supreme Court nominee in the history of the 
country.
  We have had plenty of time to discuss Judge Gorsuch and his 
credentials both in committee and on the floor, and I think it is now 
important to move forward.


                             Cloture Motion

  Therefore, I send a cloture motion to the desk for the nomination.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Neil M. Gorsuch, of Colorado, to be an Associate Justice 
     of the Supreme Court of the United States.
         Mitch McConnell, Mike Crapo, John Kennedy, Jerry Moran, 
           Mike Rounds, Chuck Grassley, Jeff Flake, Todd Young, 
           John Cornyn, Cory Gardner, Thom Tillis, Marco Rubio, 
           John Thune, Michael B. Enzi, Orrin G. Hatch, Shelley 
           Moore Capito, Steve Daines.

                          ____________________