[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5393-5421]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                     EXECUTIVE CALENDAR--Continued

  Mr. RUBIO. Mr. President, I ask unanimous consent that the Senate 
resume executive session and then resume legislative session following 
the remarks of the Senator from Oregon, Mr. Merkley.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. RUBIO. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I rise to address the nomination of Neil 
Gorsuch. I will start by noting that just moments ago the majority 
leader was on the floor and did something that has never before been 
done in U.S. history; that is, on the first day--indeed, in the first 
hours of debate on a

[[Page 5394]]

Supreme Court Justice on this floor, the majority leader filed a 
petition, called a cloture petition, to close debate. So here we are on 
the first day, just hours into the debate, and the majority leader has 
said: Enough. We do not want to hear any more about this topic. We are 
going to shut down debate.
  The rules provide some protection for this, and that is that it 
cannot be voted on until Thursday. So there is time between now and 
Thursday for us to air our views. Historically, often debates went on 
for a substantial amount of time--a week, some for many weeks--with no 
cloture petition being filed, with no closing of the debate. Certainly, 
never before has the majority leader shut down debate, filed that 
petition on day one in his trying to ram this nomination through.
  This is just a continuation of firsts--first events that do 
absolutely no credit to this institution, no credit to the Supreme 
Court, no credit to our Nation. In fact, they pose a substantial 
danger.
  It was February 13, a little over a year ago, that Supreme Court 
Justice Scalia died. Almost immediately, the majority leader indicated 
that when the nomination came down from President Obama, this Chamber 
would not exercise its responsibility of advice and consent under the 
Constitution in that it would not provide an opportunity for Merrick 
Garland to be able to appear before a committee and answer the 
questions of the committee members, the questions of Republicans and 
the questions of Democrats, so that they could assess whether that 
individual was appropriate to serve in a Supreme Court seat.
  The majority leader made it clear that there would be no committee 
hearing and no committee vote and no opportunity to come here directly 
to the floor, bypassing the committee. In other words, he closed off 
every opportunity for the President's nominee to be considered. This is 
the first time--this is the only time that has happened in our Nation's 
history when there was a vacancy in an election year.
  What is the essence of this extraordinary and unusual action when 
this Chamber fails to exercise its advice and consent responsibility 
under the Constitution? Were we at a time of war, like the Civil War, 
in which the Capitol at times was under assault? Were we at a moment in 
which the building was aflame and we had to flee or there was some 
other significant threat to the functioning of this body? Was there 
some extraordinary set of circumstances--perhaps a massive storm headed 
for the Nation's Capital--that led the Senate for the first time in 
U.S. history to say that it could not take the time to exercise its 
constitutional advice and consent responsibility? There was no storm. 
There was no fire. There was no threat. There was no earthquake. There 
was nothing that would have prevented this Chamber from doing its 
responsibility.
  The President has a responsibility under the Constitution when there 
is an open seat, and that is to nominate. He proceeded to consult with 
Members on both sides of the aisle, and he nominated an individual, 
Merrick Garland, who had an extraordinary reputation and who 
essentially was considered to come straight down the Main Street of 
judicial thought, with opinions that were neither labeled 
``progressive'' nor ``conservative.'' They were straight down the 
middle.
  The President made that nomination on March 16, which was a month and 
3 days after the seat became vacant, but that was the last action to 
occur, the last action this Chamber took. A few individuals did 
courtesy interviews, knowing that it would lead to no committee hearing 
and no committee vote because the majority team in this Chamber decided 
to steal a Supreme Court seat. Again, such a theft never, ever has 
happened in the history of our Nation.
  There have been a substantial number of seats that have come open 
during an election year--16. There have been a substantial number of 
individuals who were confirmed to those 16 seats, and there were 
individuals who were turned down by this Chamber. Yet, in all of the 15 
cases that preceded the death of Justice Scalia, the Senate acted. The 
Senate exercised its responsibility.
  But this time was different. This time, the majority said: We intend 
to pack the Court of the United States of America--not by adding seats 
to it; that would not work under a Democratic President who could then 
nominate more individuals--to pack the Court by taking a seat, failing 
to exercise the responsibility that each of us has under our oath of 
office of advice and consent, and send it in a time capsule into the 
next administration, hoping that time capsule would be opened by a 
conservative President who would nominate someone who was very 
conservative, indeed, to create a 5-to-4 bias. What was that bias the 
majority was looking for? It was not a bias toward ``we the people''; 
it was a bias toward the powerful and the privileged.
  If you take a look at our Constitution, that initial opening of our 
Constitution, it does not say ``we the privileged'' and ``we the 
powerful.'' It lays out a vision of a form of government with checks 
and balances to be designed to function of, by, and for the people. The 
majority was afraid that Merrick Garland would be just that kind of 
judge, one who would call the balls and strikes under the Constitution 
in support of the constitutional vision of ``we the people.'' They did 
not want a judge who would call the balls and strikes under our 
Constitution; they wanted someone who would find a way to twist a case 
in favor of the privileged and the powerful.
  Tonight, I will lay out a lot of how they knew that was important 
both from the perspective of the decisions of the 5-to-4 Court that 
preceded the death of Justice Scalia and also Merrick Garland's 
writings and decisions, who found every opportunity to take a case and 
find some word, find some phrase, find some idea--``to operate is not 
to operate,'' ``to drive is not to drive,'' which is just language from 
one case--in order to find some way to find in favor of the powerful 
over the people. Merrick Garland's nomination lasted 293 days. That is 
the longest time in Supreme Court history.
  Now I am going to turn and go through the election-year vacancies 
because I do not want folks to take my word for the case that the 
Senate has always done its job. For more than 200 years, it has done 
its job--until now. Let's take a look at those vacancies.
  There were a couple of cases--three cases in which there was an 
election-year nominee and the vacancy occurred after the general 
election. This happened when President Adams was in office, when 
President Grant was in office, and when President Hayes was in office. 
So there was very little time left in the Presidents' terms. In a 
number of these cases--all three--the President did not change office 
until March of the following year, but the Senate did not even need 
those extra 2 months that it had before we amended the Constitution.
  President Adams nominated John Jay. He nominated him 3 days after the 
vacancy occurred in the year 1800, and the Senate confirmed the 
nominee. Here is an interesting twist: The nominee then declined the 
position. You do not see that very often in the history of the Supreme 
Court.
  Then you go to 1872 when President Grant was President. He had a 
vacancy occur on November 28, which was just a month before the end of 
the year and a few months before the Presidency would turn over. It was 
following the election. He nominated Ward Hunt. The Senate acted in a 
little more than a week, and they confirmed him. They vetted him. They 
exercised their advice and consent responsibility, and they said: Yes, 
this individual is appropriate to serve on the Court.
  Then there was President Hayes. A vacancy occurred in December 1880, 
and he nominated William Woods. Here we have a nominee being put 
forward very shortly afterwards and confirmed.
  Those were the first three. That is the set of cases in which the 
vacancies occurred after the November elections in election years.
  Let's look at the next set of vacancies. In these cases, the vacancy 
occurred before the elections, but the

[[Page 5395]]

nominees were not nominated by the Presidents until after the 
elections. So, again, the Senate had a relatively short period of time 
in which to act.
  We have the August 25 vacancy of 1828 with President Adams. He 
nominated quite a few months later--almost 4 months later--John 
Crittenden. In this case, the Senate acted, but they acted to table the 
nomination, so he was turned down.
  Then we have President Buchanan in 1861, who nominated Jeremiah 
Black. This is a little strange to us because we think of the 
Presidency as changing in January, but the Presidency did not change 
until March. The nomination occurred in February, and the motion to 
proceed was rejected by the entire body. So that nominee was rejected.
  Then we turn to President Lincoln. The vacancy occurred in the month 
preceding the election. President Lincoln nominated Salmon Chase just 
after the election, and the Senate said: There is plenty of time. We 
will review that. And he was confirmed.
  Then we can turn to Eisenhower. Once again, the vacancy occurred in 
the month before the election, just 3 weeks before the election. 
Eisenhower didn't put a nomination to the Senate until January, but the 
Senate said: We have a responsibility of advice and consent. We will 
review it, we will vet the nominee, and we will vote. And they voted to 
confirm.
  That is the second set of nominations. Those are 7 of the 16 
nominations, so there are still 9 to go. Let's take a look at those.
  In this case, the Senate had more time to act. The vacancy occurred 
before the general election. The nomination occurred before the general 
election.
  Before I go through them, let me just note that of these nine, the 
Senate acted to confirm in 1804, to table in 1844, to table in 1852, to 
confirm in 1888, to confirm in 1892, to confirm in 1916, to confirm 
again 6 months later--still before the election; two in the same year--
and then finally, in 1932, the Senate confirmed a nomination made in 
February. On February 15, the Senate acted.
  Of these nine individuals, we have six who were confirmed and two 
were tabled. But I have left one out. There is one more nomination that 
occurred in an election year--just one more--and that happened last 
year. President Obama--we go back to Antonin Scalia dying on February 
13 and Merrick Garland being nominated on March 16. So of those 16 we 
have looked at, the previous 15, the Senate acted each and every time 
because they had taken an oath of office to uphold the Constitution 
that has a requirement that the Senate participate in advice and 
consent. But this time, no action. No action. No committee hearing, not 
a set of committee hearings, not even one. No vote in committee. No 
effort or acceptance of moving the nomination to the committee of the 
whole, which would be here on the Senate floor. For the first time in 
U.S. history, the Senate stole a seat from one President in order to 
pack the Court.
  I have to tell my colleagues that it isn't just a clever new tactic. 
It isn't just an excessive exercise of partisanship. This is a crime 
against our Constitution and the responsibilities of this body. This 
effort to pack the Court is a major assault on the integrity of the 
Court.
  For every 5-to-4 decision that we see in the future, everybody is 
going to look and say: Five-four. How would that be different? And it 
will always be different if the stolen seat and the judge who fills it 
is on the right side because that side would otherwise have lost. The 
tie goes to the lower court's decision.
  So what this does is not only change the trajectory of our 
Constitution from one where it is designed for ``we the people'' to a 
different vision of government by and for the people--it doesn't just 
change that trajectory, but it draws into question everything the Court 
does in the future.
  Wouldn't it have been incredible if President Trump's nominee--
knowing the constitutional responsibility for the Senate to act, 
knowing that the Senate seat had been stolen from a previous President, 
knowing that it would bias all the outcomes of the Court in the 
future--had stood up and said ``I will not participate in this crime 
against the Constitution'' and declined the nomination? Wouldn't that 
have been an act of integrity? Well, we didn't get that act of 
integrity from President Trump's nominee, so here we are today, on the 
first day of the Senate deliberation on this nominee, and just moments 
ago was the first time in U.S. history that the majority has exercised 
a petition to close debate on the first day of a Senate debate on a 
Supreme Court Justice. Why is the majority in such a rush? Why is the 
Senate majority determined to push this through so quickly, in 
contravention of the tradition of due deliberation on this floor?
  I know that if the circumstances were reversed and the Democrats had 
participated in stealing a seat from a Republican President, my 
colleagues would be screaming on this floor, and they would be fully 
justified. I am proud that my colleagues on this side of the aisle have 
never participated in such an assault on our Constitution or a failure 
to exercise our responsibilities under our oath of office or a theft of 
a Supreme Court seat or an effort to pack the Court, but if we had, my 
colleagues across the aisle would absolutely be standing and saying 
what I am saying tonight--that this is wrong, this is destructive, this 
is damaging, and we should stop and rethink this.
  There is really only one nominee who would be a legitimate nominee 
for President Trump to make--only one way to heal this massive wound, 
this massive tear and rip in the heart of our Constitution, this 
massive failure of this Senate body to do its job. There is only one 
way to heal that, and that is for President Trump to nominate Merrick 
Garland and for him to get that committee hearing, for him to get that 
committee vote, for him to get that deliberation here on the floor. 
Maybe he would be approved and maybe he wouldn't, because that is what 
we see every time the Senate has acted. It has not always been to 
confirm a nominee, but it has acted and deliberated and voted and 
decided, as the Constitution calls upon it to do. That would be a 
healing of the wound. It would be a healing of the wound if the 
Senators were to vote the same way they would have voted last year had 
there been a completely legitimate, ordinary consideration. Then we 
could go forward without this damage.
  So I call upon my colleagues, who I know have--each and every one of 
them--considered that it is their responsibility to build up and 
strengthen our institutions of government, not to tear them down. 
Therefore, I call upon them to reverse this deed before the dark act is 
completed of stealing a seat and packing the Court.
  I wish to turn to consider another piece of this puzzle. If the seat 
had not been stolen and we were simply considering President Trump's 
nominee under ordinary circumstances, what would we find? We would find 
a far-rightwing judge completely outside of the mainstream.
  Why is it that throughout its history, this body has honored the rule 
of having a supermajority needed to close debate on a Supreme Court 
Justice? It has been to send a message to the President that you must 
nominate someone who is in the judicial mainstream, not way out in one 
direction or another, with bizarre findings that would undermine the 
integrity of the Court, not a pattern of attempting to twist the law so 
that we the people lose and we the powerful win time after time after 
time--no, someone in the middle of the judicial mainstream.
  Well, that is certainly where Merrick Garland was, but that is not 
where Neil Gorsuch is. He is a lifelong conservative activist, 
rewriting the law to make it something that was never intended to be. A 
Washington Post analysis of his decisions that have been considered by 
the Supreme Court found that he would be, by far, the most conservative 
member of the Court--not where Scalia was, not where Justice Thomas is, 
not where Justice Alito is; he would be the most conservative member of 
the Court, to the right of Justices Alito, Thomas, and Scalia.
  Quote:


[[Page 5396]]

       The magnitude of the gap between Gorsuch and Thomas is 
     roughly the same as the gap between Justice Sotomayor and 
     Justice Kennedy. In fact, our results suggest that Gorsuch 
     and Scalia would be as far apart as Justice Breyer and 
     Justice Roberts.

  That is the Washington Post. It is a pretty big gap, way to the 
right.
  Let's take a look at some of the cases that lead to this conclusion. 
There is a case known simply as the frozen trucker case. Alphonse 
Maddin, the trucker, was fired for refusing to freeze to death. After 
waiting more than 3 hours with a disabled trailer on the side of the 
road, he unhooked the trailer and he started up the cab and he went to 
get warm before he could return to meet the repairman for the truck. 
Now, why couldn't he just carry the trailer with him? The brakes were 
frozen. Why was he himself freezing? Because the heater on the truck 
was broken. He fell asleep for some hours, woke up, and his body was 
numb. He became concerned about his life, so he unhooked the trailer, 
went to get warm, and came back to meet the repairman.
  The Labor Department determined that under the Surface Transportation 
Assistance Act, he was wrongly fired because that act is designed to 
say that if you refuse to operate a truck in a fashion that is unsafe 
for you, the driver, or unsafe for others, you can't be fired for that. 
Safety comes first. The whole message of the act: Safety comes first. 
But in this case, Neil Gorsuch dissented. He wasn't writing the 
majority opinion. He went out of his way to write the minority opinion.
  The Tenth Circuit upheld the fact that he was correctly operating the 
truck, leaving the trailer behind. You could ask, Was he operating the 
full truck or part of the truck? The point is that the Tenth Circuit 
said yes; the firing was wrong. They upheld the Labor Department under 
the surface transportation act, and said: He did exactly what the act 
had intended. You have to restore his job. The Tenth Circuit said yes, 
absolutely. But Judge Gorsuch went out of his way to write a dissent, 
saying no. It is completely taking words out of context and twisting 
them. I encourage others to read it for themselves because it is truly 
a bizarre opinion, an effort to find a way--some way, some path--to 
find for the company instead of the trucker, who was protected by the 
laws written and passed in this Chamber and the House and signed by the 
President. That is how far out of common sense and theory of the law 
Neil Gorsuch is.
  Let's turn to a case often referred to as the autism case, Thompson 
R2-J School District v. Luke P. This case says a great deal because in 
this case Judge Gorsuch tried to rewrite a law referred to as the IDEA 
law--Individuals with Disabilities Education Act--to effectively 
invalidate the law. The law written here was to ensure that individuals 
with disabilities were provided an education by the school district, 
not babysitting but an education. Neil Gorsuch rewrote that law to say 
that babysitting is OK.
  Despite years of special education in a public school, Luke P. wasn't 
showing any progress at home. His parents enrolled him in a private 
school that specializes in autistic children, where he made advances--
because the school district was only babysitting him. They fought to 
get the school district to reimburse them. Gorsuch ruled in favor of 
the school district. The standard he put forward was the standard that 
babysitting is OK, even though the law was written to do the opposite.
  This decision that Gorsuch wrote is so far out of the mainstream, it 
is so far out of common sense, it is so contrary to the law written 
here in this Chamber that the Supreme Court--yes, our Supreme Court, 
our eight-member Supreme Court--proceeded to say, 8 to 0: That is 
absurd and wrong, Neil Gorsuch. And they reversed him.
  When have we had a nominee reversed 8 to 0? When have we had cases 
like the frozen trucker case and the autistic child case, where he went 
to great lengths to find for the powerful over the individual?
  We can turn to the Utah en banc request in a case called Planned 
Parenthood Association of Utah v. Herbert. ``En banc'' means that the 
entire bench hears a case. Neil Gorsuch was such an activist, so 
committed to undermining an organization--Planned Parenthood--that he 
took the extreme step of initiating, himself, an en banc review of a 
decision to block a Utah defunding effort. Governor Herbert of that 
State had used the cover of false and misleading videos to strip Utah's 
clinics of their funding. The Governor later made clear in testimony 
that he was in fact punishing Planned Parenthood for its 
constitutionally protected advocacy and services and that the 
organization had not done anything wrong.
  The Tenth Circuit granted a preliminary injunction against Utah for 
violating the organization's--Planned Parenthood's--constitutional 
rights. The Tenth Circuit decided this, but Neil Gorsuch--ever the 
activist judge, rewriting law to make it say the opposite of what was 
intended--sought to have a review by the entire bench. Let me explain, 
that is not normal. Other people may call for an en banc review because 
they don't like the outcome, but to have a participating judge on the 
Tenth Circuit initiate it is unusual. It is a message to the world: 
Everyone, pay attention to me. I am an activist, far-right judge, and 
if you like that--someone who is going to find for the powerful and the 
privileged over ordinary people--pay attention. That is who I am. It is 
kind of like trying out for a future Supreme Court opening.
  Gorsuch's entire adult life has been a mission to revoke a lot of the 
norms we have come to embrace in our pursuit of the transitions in our 
society and in our government as we pursue that constitutional vision 
of equality under the law, protections to vulnerable populations, to 
workers and to kids and to women and to minorities. But Neil Gorsuch 
doesn't like that arc of seeking to provide the protections our 
constitutional vision laid out. As far back as college, he was an 
ideological warrior who championed a severely reactionary worldview.
  In a conservative newspaper article, he characterized efforts to 
fight racism as ``more a demand for the overthrow of American society 
than a forum for the peaceable and rational discussion of these people 
and events.'' That is a very strange way to characterize efforts to 
fight racism. Racism, discrimination, is to slam the door of 
opportunity on American citizens because of their gender, because of 
their race, because of their ethnicity, because of their sexual 
identity--slam the door and disrupt that opportunity for each and every 
citizen to be treated equally under the law.
  He also used the opportunity to advocate for social inequality, 
saying that ``men . . . of different abilities and talents to 
distinguish themselves as they wish, without devaluing their innate 
human worth as members of society,'' and arguing that a responsible 
system required a governing class of men of exceptional political 
ability to make the big decisions for society. Well, there is not much 
equality and opportunity in that statement.
  As a judge, in case after case, he finds expansive rights for 
corporations at the expense of their employees, consumers, and the 
public interest. We have talked about the frozen trucker case and the 
autistic child case. There is also the electrocuted mine construction 
worker case. A worker started at a project a week after it begun and 
wasn't trained on how this should be done. It was a training that was 
really required because of the highly dangerous circumstances. When you 
are operating equipment near power lines, that is just a setting that 
everyone in the construction industry knows is extraordinarily 
dangerous. If you connect that equipment to the power line, perhaps 
somebody has their hand on the side of the equipment, and the next 
thing you know, they are electrocuted. The worker mistakenly brought a 
piece of equipment too close to that overhead power line, and it was 
the worker himself who was electrocuted and killed. The Occupational 
Safety and Health Review Commission fined the employer for not properly 
training the worker under these dangerous circumstances. The Tenth 
Circuit took a look at it and said: Yes, the company failed to do the 
proper training, and the result was that someone lost their life. But 
Judge Gorsuch dissented. He

[[Page 5397]]

said that there was no evidence the company had been negligent. Really? 
Failure to train in a highly dangerous situation that results in loss 
of life--there is no problem there. Why should we require companies to 
train people in dangerous circumstances? Again, there was a complete 
lack of common sense, a determination to overturn what a review board 
had found, what the circuit court had found.
  We can turn to the Hobby Lobby case. In this case, Neil Gorsuch found 
that closely held, for-profit corporations have the right to choose the 
contraception coverage, or lack thereof, for their employees if doing 
so conflicted with the corporation's religious beliefs. Now, we didn't 
actually have corporations--in the sense that we have them now--when 
our Nation was founded. There were some charters, but not the modern 
corporation in the sense that we have. Yet Neil Gorsuch said: We will 
just give this corporation personhood, and we will let the corporation 
exercise religious beliefs that overrule the religious beliefs of the 
individuals. But it was the individuals the Constitution was written to 
defend. It was the individuals' religious beliefs the Constitution and 
the Bill of Rights were laid out to protect--not a corporation. But in 
a never-ending quest to find for the corporation, to find for the 
powerful, to find for the privileged, Neil Gorsuch twisted the law, 
found that path, and laid it out.
  In writing a brief as a lawyer in 2005, Neil Gorsuch urged the court 
to ignore the statutory and legislative history of the Securities 
Exchange Act, advocating that the court limit the ability of those 
defrauded by corporations to band together to seek redress. This really 
goes to the difference between ``we the people'' and ``we the 
powerful.''
  We have a nominee before us right now who doesn't like the idea of 
individuals being able to operate with a class action suit against the 
predatory actions of a powerful corporation. In an article about the 
case, he launched into an attack on the lawyers for providing the 
ability for individuals to challenge the very powerful corporation, and 
he said these are frivolous claims--frivolous claims--that take an 
enormous toll on the economy. They put a burden on every public 
corporation in America. I will quote: ``frivolous claims that impose an 
enormous toll on the economy, affecting virtually every public 
corporation in America at one time or another and costing business 
billions of dollars in settlements every year.'' He didn't like this 
burden on corporations to respond when they were challenged for 
predatory practices.
  Often, the transactions between a company and an individual are quite 
small. Maybe they involve a monthly fee to access telecommunications 
services. Maybe they involve a purchase of a single consumer item that 
costs $50. But the corporation misrepresented what that item was or 
didn't disclose that it had dangerous paint on it or some other 
feature. The only way that ordinary people, ``we the people,'' can 
challenge the predatory practice of a powerful corporation is to put 
their cases together in a class action suit so that everybody--the 
thousands of people who bought that $50 item--can say: You are doing 
something wrong. You are selling something dangerous and not telling 
us. You are selling something our children will choke on and not 
telling us. You are defrauding us in any of a whole series of 
possibilities. Perhaps it is in stock cases or other financial 
transactions. Perhaps it is the way mortgages are constructed. But the 
individual couldn't possibly take on the powerful companies' roomful of 
top-notch lawyers to reclaim that $50 or that small modest sum, so a 
class action is the tool through which the people, ``we the people,'' 
proceed to take on the powerful, and Neil Gorsuch doesn't like that.
  He doesn't like workers having the chance to confront corporations on 
the issues of sexual harassment.
  In Pinkerton v. Colorado Department of Transportation, Judge Gorsuch 
joined an opinion discounting Pinkerton's evidence of discrimination 
and concluding that Pinkerton's performance--not discrimination--
resulted in her termination. Judge Gorsuch dissented from an opinion--
by its very nature saying dissent--where the majority found a different 
path, holding that Pinkerton provided ample evidence that she was 
regularly outperforming her male colleagues yet was treated less 
favorably than them. The list goes on and on--removing Federal 
Government protections in a variety of cases.
  But there is a third big problem with the fact that we are here 
tonight considering this nomination. The first big problem was that the 
seat was stolen by the Republican majority. That is the first time a 
theft like that has happened in the history of our Nation in an effort 
to pack the Court. That is a big deal. The second is that Trump 
nominated somebody completely outside the judicial mainstream. The 
third is something that should give every American pause, and that is 
that at this very moment, investigations are taking place into the 
conversations, into the meetings between the Trump campaign and the 
Russians.
  Now, we know it is very public that the Russians conspired to affect 
the outcome of our Presidential election. We know the tactics they 
used. They wrote false news stories. They proceeded to have a building 
with hundreds--I am told a thousand people in a building--doing social 
media commentating to try to have people in America see those comments 
and go: Oh, my goodness, isn't that Democratic nominee terrible? Look 
at what happened. It was an effort to give, in other words, some sort 
of validation to the false news stories that they were creating and to 
spread those false news stories via social media.
  We know that Russia used a series of bots--basically, computers--
around the world designed to reply automatically on social media and 
Facebook and to do so in order to make it look like there were more 
than a thousand--millions of people out there--commenting on how 
terrible the Democratic nominee was.
  So they amplified this message with the goal of causing the 
algorithms used by companies like Facebook--affecting those algorithms 
so Facebook would start streaming the false news on their Facebook 
site. You see that and go: Oh, my goodness, it must be true; it is on 
Facebook. That was the core strategy the Russians used.
  I am not sharing with you anything that is classified. I am also on 
the Intelligence Committee. All of this is in the public realm, the FBI 
is investigating not whether all that took place--they continue to look 
to see what else there is and the details of that--but whether there 
was coordination or collusion with the Trump campaign in how they did 
this.
  Let's be clear. The investigation is not concluded. We don't know the 
answer. We don't know if the Trump campaign coordinated with the 
Russians. But let's also be clear about this: Anyone on that campaign 
who collaborated with the Russians to affect the outcome of the U.S. 
elections has committed a treasonous act.
  So we have this cloud of this investigation over us right now. We 
find out in a few weeks if there were treasonous acts that completely 
delegitimize the election that put Donald Trump in the Oval Office. 
Will we find that? We don't know. We don't know the answer to that.
  What we do know is that we have a risk of being in a situation where 
a swing vote on the Supreme Court is coming from a team that is being 
investigated. Let's get to the bottom of that and, therefore, know 
whether there is an issue of illegitimacy before we complete this 
conversation about filling this Supreme Court seat.
  There is an enormous amount of evidence that the Trump campaign was 
familiar with the efforts of a foreign power to alter the outcome of 
the election. The names have come up with the press. Paul Manafort, 
Michael Flynn, Roger Stone, and other figures in the Trump orbit are 
under scrutiny for that--several of them. The communications have been 
articulated where and how, and that cloud is very real.
  We had the unusual event a week ago Monday in which the Director of 
the FBI came here to Capitol Hill to talk to the House and to say that 
it is not

[[Page 5398]]

normal to confirm that our investigations are under way but that he 
thought, under this circumstance, it was appropriate that he do so.
  So those are the three big issues that we are facing. It is why every 
Senator who values this institution, each Senator who has pondered 
their responsibility under advice and consent and the theft of the 
Supreme Court seat last year recognizes that the administration is 
under a big cloud and that cloud has not been resolved in terms of the 
legitimacy of the election or whether there was collusion with a 
foreign power.
  I said that if there was collusion, it was a traitorous act. Here is 
why. Attacking the integrity of our elections, as Russia did, is an act 
of war on the United States of America. It is attacking the fundamental 
institutions of our democracy, of our democratic Republic. We must 
never let this happen again. We must work with other democratic 
republics to make sure that Russia isn't able to do it in other 
countries, which we know they are attempting to do in other elections. 
But we should absolutely get to the bottom of it before this Chamber 
takes a vote on whether to close this debate or before it takes a vote 
on whether to confirm the Justice.
  So that is the very broad presentation of the three big reasons we 
should pull the plug on this nomination or at least put it in deep 
freeze until such a time as the Russia investigation is completed. And 
we have already considered Merrick Garland. That is what we should do.
  I am going to spend considerable time going into more detail about 
these three issues because in my time in the Senate, there has not been 
an issue that has had such grave consequences for the integrity of our 
Nation, the integrity of our Senate, the integrity of the Supreme 
Court, and, quite frankly, the integrity of the Presidency, as well. It 
affects all three branches because this crime of stealing a seat 
couldn't be completed without the direct involvement of the executive 
branch's nominating Neil Gorsuch. So I will go back over each of these 
in much greater detail.
  I was pondering why I feel so strongly about this--apart from the 
reasons I have already laid out--and it is that for generations to 
come, this Chamber will be compromised. For generations to come, the 
Supreme Court will be compromised. If we act together, if we hit the 
pause button, perhaps we can prevent that.
  So I feel more compelled to be here, to raise my voice, and to call 
for those who care about our Nation to stop the insanity of this 
judicial nomination discussion here on the floor of the Senate. That is 
why I am going to go on for some time exploring this.
  I think back to when I came here in 2009. When I came to the Senate, 
my memories were of the Senate from the 1970's and 1980's, which now 
makes me really an old guy. I was able to come here as a 19-year-old, 
as an intern for Senator Hatfield. At that point in time, there wasn't 
a camera on the floor of the Senate and there wasn't email, and it 
wasn't easy to get a document across Capitol Hill in a short time. 
Interns were put to work running paperwork around the Hill. But I will 
tell you that the institution was in a very different place.
  So I came here. I was the third of three interns to arrive that 
summer of 1976, our bicentennial summer. The most recent intern is put 
to work opening the mail each morning.
  So I came in early. We had about 100 letters in envelopes. You would 
run them through a machine that sliced the envelopes opened. You would 
stack up all the letters, start going through them, and say: This one 
is on this topic, and this goes to this legislative correspondent. This 
one is on this topic, and it goes to that legislative correspondent. I 
think there were three or four in the office of Senator Hatfield. You 
would go through those 100 letters and put them on the desk of the 
legislative correspondent.
  Those correspondents had the newly developed electronic memory 
typewriters. They had written paragraphs to respond to different 
topics, and they would mark on the letter the different paragraphs that 
should go here. This is the introductory paragraph we will use. We need 
to address this issue in this letter and use paragraph 56 from the 
memory bank, and we use number 84 to address another issue.
  Then, those letters, all marked up, would go to the typing team that 
would run those memory typewriters, and get responses out before the 
day was over. I saw a lot of it that summer. It was possible to 
actually get mail to come directly in because we didn't worry about 
white powder being inside the envelopes.
  Now if you write an actual physical letter to a Senator in this 
Chamber, it goes through a warehouse. It goes through a warehouse where 
they have to examine it and check it for poisons before it can be 
delivered to Capitol Hill. It will take weeks. People knowing this 
often choose to write by email. So a lot of the mail--most of the 
mail--comes in electronically.
  But that summer, one of the legislative assistants was leaving for an 
extended period for a vacation in South America. He was looking to have 
someone take over the Tax Reform Act of 1976. I was asked to take over 
working on that act. So what that involved was that you would look at 
all the mail that came in on that tax topic. You would research those 
issues and you would draft responses. Those draft responses would go up 
and be approved or modified by the legislative director and by the 
Senator. Then you would make sure those got into the database and 
people got their questions answered.
  I learned a lot about taxes that summer of 1976. I must say, when I 
was first asked to work on taxes, I was kind of disappointed because I 
thought: Well, it will be really interesting to work on education; it 
will be really interesting to work on healthcare; it will be really 
interesting to work on the environment; it will be really interesting 
to work on jobs policy. Taxes? Not so interesting.
  So the next few days, as I threw myself into responding, drafting 
responses to these issues being raised in letters, I was transformed in 
my opinion about working on tax issues because the taxes affect 
everything in our body of law. Taxes have environmental consequences, 
or they may be an environmental incentive, such as the provisions we 
have in the Tax Code to encourage people to insulate their homes or to 
drive a non-fossil-fuel burning car. They affect health, such as the 
provisions we have in the Tax Code that proceed to say that if your 
employer provides health insurance, it is not considered taxable 
income. It affects job incentives. It affects everything.
  There were farmers writing in about tax issues that were being 
raised. There were teachers writing in. The teachers were concerned 
that there was a home office deduction that was on the chopping block. 
What this means is if you used a bedroom in your home or a study in 
your home as your office to work as an elementary teacher or a high 
school teacher, you could deduct the cost or the value of that portion 
of your house as a work expense.
  Well, often, when there is an opportunity like that, some people 
expand the definition of the office to a point in which it is 
ridiculous, and there were some individuals who were saying: Well, now 
my entire home is my office. I will deduct the entire cost of my home, 
which was never the intention.
  But teachers were concerned that, in the course of correcting that, 
that they might lose the deduction that was a legitimate work expense. 
There are dozens and dozens of these things. So the bill happened to 
come up on the floor of the Senate, in this Chamber right here. Because 
I was working that bill, I was assigned to come over and follow the 
debate. I was up in the seats up above. We considered amendment after 
amendment after amendment. Now, there was no negotiation between the 
two sides over what amendment would come up next.
  Once one amendment was finished, there would be a group of Senators 
trying to get the attention of the Presiding Officer. Whoever got that 
attention first, whoever was fastest or loudest and was called on, 
their amendment was next. They presented it, and the

[[Page 5399]]

staff hovered around following it and tried to get a copy of it and 
tried to analyze it. Then we would run down when the vote was called 
and meet our respective Senators coming out of those elevators that are 
just through those doors right there--those beautiful double doors of 
the Senate.
  I would stand there, and out would come Senator Church, and out would 
come Senator Goldwater, and out would come Senator Humphrey, and out 
would come Senator Kennedy and Senator Inouye, and then my Senator 
could come out. I would say: OK, here is the story. Here is the 
amendment. Here is what it does. Here is what people have said about 
it. He would come in here and vote.
  That was a very lucky set of circumstances that I had, but it allowed 
me to sit up in the Chamber and watch this Senate. You did not have a 
cloture petition on anything--a cloture petition meaning a petition to 
close debate. Now, there was mutual respect. There was a determination 
of this body to give people a chance to say what they wanted to say, 
but very rarely did people go on at length, and more rare than that 
would be a case where a petition was filed to shut down debate.
  You know, the principle, the idea that originated with our original 
Senate, was that there is time for everyone to make their views known 
to each other so we can benefit from their insights, so that we can 
benefit from their life experience, and then we can make the decision. 
So it was a mutual courtesy among Senators at the very start of our 
democratic Republic. I saw that courtesy here on the floor as an intern 
41 years ago.
  What a difference it is today, where today, for the first time in 
U.S. history, the majority filed a petition to shut down debate on the 
first day of a debate over a U.S. Supreme Court seat, under 
circumstances that are more complex and more disturbing than virtually 
any circumstances we have seen in more than 200 years over the 
nomination of a Supreme Court justice.
  It is the first time in U.S. history that a nominee in an election 
year was not accorded any consideration, the first time a seat was 
stolen, perhaps the first time that a cloud hung over a nominating 
President--President Trump and his team--because of the way the 
campaign was conducted and the possible collaboration with Russians. 
Certainly, it one of the first times.
  Since the analysts have found that the views of Neil Gorsuch are to 
the extraordinary far right, that too adds a certain change from the 
tradition of the supermajority of the President nominating from the 
judicial mainstream.
  So we have these complex sets of circumstances that should be 
thoroughly vetted. This should be a situation where no Member of this 
Chamber would even think about filing a petition to close debate and 
would not even consider the possibility of trying to cut off debate.
  Debate has gone on for Supreme Court folks for weeks and weeks and 
weeks without a petition being filed. Sometimes, that nominee was 
confirmed and sometimes the nomination was withdrawn, and in the course 
of it, the American people learned a great deal, and they were riveted 
to that conversation.
  But this time, the majority said that 200 years of history--that 200 
years of developed comity here in the Senate Chamber, the traditions 
that were still here when I was an intern 4 decades ago--we are going 
to wipe that away. Well, that is a great concern. After I was here for 
a summer, I was very intrigued by the beauty of what we do on Capitol 
Hill, the profoundness of what we do on Capitol Hill.
  We can make a policy that can destroy home ownership for literally 
millions of families, or we can make a policy that creates the 
opportunity of fair home ownership for millions of families. That is 
the power of the discussions that take place on this floor of the 
Senate, of this Chamber, and the Chamber on the other side of Capitol 
Hill.
  So, during that summer, I was wrestling with a question, and that 
question was: My talents are in math and science. But is there a way to 
pursue a career dedicated to making the world a better place? Is there 
a way to actually pursue public policy as a career? I didn't know the 
answer to that question. I went back to college for 1 trimester out in 
California.
  At the end of that trimester, President Carter was going to be 
inaugurated in January of 1977. I thought: You know, it will be very 
interesting to see what a new President does. Let's see what policies 
he puts forward, how he builds his Executive team, how he delivers his 
ideas to Capitol Hill, how he works with Capitol Hill.
  So in January, I took a Greyhound bus across the Nation. I arrived 
here and proceeded to work on a variety of internships while also 
waiting tables and washing dishes. I worked as a hotel desk clerk up on 
14th Street on Thomas Circle. I worked washing dishes and waiting 
tables for a Lums Restaurant, which is kind of a sit-down hamburger 
joint.
  But it was all so I could be here and see the magic of public policy 
and the work done that could affect millions of lives here in this 
Chamber, the work done on the far side of Capitol Hill that would 
affect millions of families--to the better or to the worse. In the 
course of that year, I interned for a group called New Directions. It 
was an environmental nonprofit working on the Law of the Sea.
  There was a question on the outside of our territorial boundaries: 
Will the nations cooperate so that we don't destroy the resources in 
the international space of the oceans? How far should our national 
space extend? How do we write those rules so that our Continental Shelf 
is clearly under our control? These are the sorts of questions 
considered. That treaty, the Law of the Sea Treaty, has never made it 
here to Capitol Hill. Every time there is a new Presidency coming in, 
someone says: Hey, remember that treaty from four decades ago? It might 
really strengthen U.S. control of our offshore areas, and maybe we 
should bring it up for discussion. It still hasn't been discussed here.
  But I also went door to door for a group called Virginia Consumer 
Congress. They were working to create attention to consumer protection 
issues in the State capitol in Virginia. They would go door to door. 
They would have a team go door to door. You would proceed to explain 
the issue that you were working on--the bill you were working on, that 
the organization was working on--and ask ordinary citizens to sign a 
petition in support of that bill being considered at the State capitol.
  You would ask: Would you like to support the work of this 
organization so we can keep doing it? If they made a donation, that 
helped strengthen the organization. This was the model that became the 
Public Interest Research Group model, or the PIRG model.
  Specifically, the issue we were working on as we went door to door 
was to say: We can save consumers a huge amount of money if we can 
simply implement peak-load pricing.
  Now, what is peak-load pricing? What it means is that you have a 
meter so that when there is a huge demand for electricity, it charges a 
higher price. By so doing, it alerts the consumer: Hey, don't use 
electricity now; use it at another time.
  Now, why would that save consumers millions of dollars? Well, here is 
why. The electric power company wanted to build a nuclear powerplant to 
meet just the peak load. So they wanted to build a very, very expensive 
nuclear powerplant, which they would then charge all the utility 
customers for, and a lot of utilities--it is kind of written in the 
law--receive an automatic 8-percent return on whatever they invest. So 
there is an incentive for them to invest more. The more they invest, 
the bigger their revenue stream is. That revenue stream is paid for by 
the citizens who buy electricity.
  So few could convince the utility, instead of building a nuclear 
powerplant, to put in meters that would tell people: Hey, don't use 
your dryer now because it is more expensive, and shift that peak load. 
Then everybody benefitted. You did not have to have the risk of a 
nuclear powerplant.

[[Page 5400]]

  At that point we had a lot of concerns. We had had a lot of 
difficulties in some of our plants with near meltdowns. The idea that 
you could have a radioactive cloud or a China syndrome occur somewhere 
near a metropolitan area was a very scary thing. So you simultaneously 
greatly improved public safety while saving people a huge amount of 
money.
  So that is what we were petitioning people for door to door. It was 
my first introduction to a legislative process that was happening 
outside the national legislative process. I must say, when you go to 
door to door, you have so many interesting experiences. You never know 
what is going to happen when you walk through that door and start to 
explain to people what you are fighting for and they start sharing 
their stories.
  The president of the board of VEPCO, Virginia Electric Power 
Company--I went to his and his wife's house. I did not know it was 
their house at the time--a huge, huge house in suburban Virginia. The 
wife greeted me. She talked with me about these issues. She said: You 
know, my husband is president of the board of VEPCO, but, as to the 
issues you are raising, I never hear them raising those issues, and 
these are good points you are making. So I want to buy the Virginia 
Consumer Congress newsletter. It was a $15 donation. That was the 
biggest donation at the door I ever had while I was working there. 
There were many, many other conversations.
  But the reason I came back to be here for those first 9 months of the 
Carter administration was to continue to see: How does Capitol Hill 
work? How do nonprofit advocacy groups work? How does a new 
administration work? How does the Senate work? The Senate was so near 
and dear to my heart after the internship with Senator Hatfield.
  In the course of that year, I came to believe that there was a path 
to work on public policy. Specifically, I decided to work on third-
world economic development. Part of the reason that I choose that area 
was that, when I was in high school, I had a chance to be an AFS 
exchange student in Ghana, West Africa. There were only six exchange 
students sent to Africa outside of apartheid South Africa.
  Of those six, five went to cities and one went to a modest town with 
a family of very modest means. I was the student who was sent to that 
very modest town to the family of modest means. The experience was such 
that I was surrounded by people barely able to afford to eat or 
sometimes not able to afford to eat.
  My host family was middle class. My host father was a schoolteacher, 
and my host mother was also a schoolteacher. One was in a public 
school, and one was in a private school. Because of the connection to 
the public school, my host father, who, if I recall right, had a sixth 
grade or ninth grade education--that was enough to be a teacher because 
they didn't have enough people who were high school graduates or 
college graduates.
  He was afforded a government-built house that had three concrete 
rooms and screens over the windows to keep out the mosquitoes. There 
was electricity in the house, an outlet. The family had one appliance, 
and that appliance was an iron to iron clothes. Every night, my host 
father would take the clothing that had been washed that day and he 
would iron the clothing. Nobody else could touch that iron because that 
was an incredibly valued appliance.
  They had one other thing that was considered a real amazing thing for 
a family to have, and that was a bicycle. They had a bicycle. I wanted 
to borrow the bicycle to go outside this town and visit some very tiny 
villages. My host father was so afraid that I was going to break this 
bicycle, that I wasn't going to be careful, that I was going to go 
through potholes, that I was going to dent the rim, because it was such 
a valued commodity to the family.
  I decided in college, after my time here in 1976 and 1977, that I 
would work on economic development overseas because I had seen the 
families who surrounded my host family often earning just a dollar a 
day and trying to feed a family of six or seven. The children couldn't 
go to school because they had to go down to the main street, running 
through town to try to sell things through the windows. The only way 
for the family to eat was for every child to be working.
  (Mr. ROUNDS assumed the Chair.)
  Well, I tell you this because it is all tied in to how I view the 
sanctity of this room, this Senate Chamber, because the events that 
were to transpire unexpectedly brought me back to Capitol Hill after 
graduate school.
  I pursued that path of working on third-world economic development, 
and I thought I was going to spend my life overseas. When I graduated 
from college, I was hired for a job to work for the United Nations in 
the Philippines. My job was going to be going throughout the region to 
evaluate U.N. development projects. What a perfect position, to be able 
to be in multiple countries--it would have been in Malaysia, the 
Philippines, Vietnam, a whole host of nations--to evaluate projects on 
the ground, giving reports on what was working and what was not working 
and why. It was a 2-year post. I was so excited about doing this. It 
just seemed like all life had come together. I was going to have a job 
after I got out of college, and I could start repaying those student 
loans. I felt like I was landing on my feet.
  I went down to the organization, the nonprofit at my university that 
would set up these jobs. The individual who ran it said: Jeff, come 
here. I have a letter for you to read.
  The letter said: The United Nations has just eliminated the position 
to evaluate those projects in the Philippines. So suddenly, before I 
ever got on the plane, my job was gone. I didn't get to go. Again, I 
was very worried. Well, what am I going to do after I graduate?
  I proceeded to go down to Mexico and work in a village with the 
American Friends Service Committee. Then I went to New York and worked 
an internship with the Carnegie Endowment for International Peace. I 
worked on a variety of international issues. Then I decided to join a 
friend, and we went and bought the cheapest bus available from 
California to Costa Rica. We proceeded to go through country after 
country--Mexico and Guatemala, Honduras. We bypassed El Salvador. We 
got off the Pan-American Highway because in Salvador, in 1980, people 
were being pulled off of the buses and shot. The other nations were in 
turmoil. It was the year after the Sandinista Revolution in Nicaragua.
  In Guatemala, there was an army group who was going from village to 
village killing the young men. There was a war between one group and 
another group. There was a lot of chaos there. But we went all the way 
through to Costa Rica. Then I worked in a village again on an 
environmental project. I had a chance to work in India.
  I expected the whole time that I was going to be going overseas for 
my life. You never know what door is going to close and what door is 
going to open.
  After I got out of graduate school and was ready to go fulfill this 
vision that I developed back in 1977 when I extended my stay here in DC 
and was doing these internships, I was at the World Bank. I was hired 
at the World Bank, but I didn't want to be at the World Bank for long 
doing mathematical modeling. I was doing the shadow pricing of 
petroleum products.
  If that doesn't sound very interesting, well, it kind of is, 
actually, if you love how numbers can give you a vision of what is 
going on and how the imports and exports of oil products were right or 
wrong and expensive. By understanding shadow pricing, you could 
understand the challenges various developing nations faced. Still, it 
was working with mathematical formulas and data here in DC, and I 
wanted to be in the field. So I was preparing to go to southern Africa, 
where I had not been. In that preparation, I was also applying for a 
Presidential fellowship in foreign relations. One of those openings was 
at the Office of the Secretary of Defense.
  Each year, the Office of the Secretary of Defense would have 5 
openings for Presidential management fellows, and there were 12 
finalists for

[[Page 5401]]

this. They called us in, and they had this big kind of arc of the high-
ranking folks, civilian and uniform, from the team of the Secretary of 
Defense. Then they had a chair in kind of the middle of that arc. I 
just remember thinking it felt like we were going to be interrogated, 
and it was kind of an interrogation.
  This is the first question I was asked: We see here that you interned 
for Senator Hatfield, and he votes against all of the defense 
appropriations. You worked for the American Friends Service Committee. 
They are an arm of the Quaker Church, and the Quaker Church has a peace 
testimony. Why would we ever hire you here in the Office of the 
Secretary of Defense?
  I thought that was a very good question. I was kind of surprised that 
I was a finalist for a position, but I responded that national security 
is so much broader than simply military money, that it involves an 
understanding of culture, an understanding of history, an understanding 
of economic dynamics, an understanding of the things that trigger 
dissent and how it might be responded to, an understanding of 
alliances, and that all these things put together enable us to have a 
foreign policy that is part and parcel of our national security. Well, 
I probably said a more complex version of that, but that was the gist 
of it, and they hired me.
  The reason I took that job rather than heading off to Africa was 
because at that moment, the biggest threat to the world was nuclear 
power--not nuclear power electricity but nuclear weaponry, atom bombs. 
The fact is that we were concerned that there might be a nuclear war 
that would destroy the planet as we knew it--certainly destroy the 
Soviet Union and the United States. Since that was the biggest threat 
to the world, I felt compelled to pivot from third-world poverty to 
work on nuclear weapon policy, and I did that through the 1980s, first 
for the Secretary of Defense and then for Congress, which now completes 
why I was telling you that story, because that brought me back to be in 
regular contact with this Senate, with this Chamber, with the folks who 
work here, who are trying to figure their way through a series of 
difficult issues involving nuclear weapons.
  Outside of this Chamber, in the path walking between the Russell 
Office Building, a curved path, and coming into the outside doors that 
are outside of these double Senate doors, there is a tree. That tree is 
known as the peace tree. It is directly connected to the work that was 
being done in this Chamber on nuclear weapon policy.
  Senator Hatfield and Senator Kennedy were working together. A 
Republican and a Democrat were working together to try to address the 
risk of nuclear weapons. Well, in 1985, there was an intern walking 
with Senator Hatfield. He liked to walk outside on that curved path 
back to the Russell Office Building. It is a path on which I have had 
the chance to walk with him a number of times. He talked about the 
different trees along the way. I remember in particular his lecture on 
the ginkgo tree. There are several ginkgo trees out there between here 
and the Russell Office Building.
  I was relaying this to a 1985 intern of Senator Hatfield's named Sean 
O'Hollaren. Sean said: You know, I had those same walks with Senator 
Hatfield, and he gave me the same stories about the tree. He was 
interested in that.
  Sean O'Hollaren said to Senator Hatfield--Sean O'Hollaren obviously 
was much quicker to seize the moment. It never even occurred to me. He 
said: Senator Hatfield, you love these trees so much, why don't you 
plant one?
  Senator Hatfield said: Sean, that will be your intern project.
  So Sean worked on that.
  Senator Hatfield wanted to plant a tree that doesn't fit the Olmsted 
plan for the landscaping of the Capitol. The problem is that the 
Olmsteds, who had designed Central Park and Forest Park in Oregon and 
much of the DC landscape here on the Capitol grounds, had in mind 
broadleaf trees, not the type of tree Senator Hatfield wanted to plant.
  What did he want to plant? There is a very interesting story here 
because in the Pacific Northwest--of course Oregon is part of the 
Pacific Northwest--there used to grow millions and millions of a cousin 
of the grand sequoia and the coastal redwoods. This cousin was 
different in that it lost its needles during the winter. It went 
extinct. It was out-competed by the cedars and the Douglas firs and the 
regular redwoods and so on and so forth. It went extinct, but its 
fossils are everywhere in the Northwest.
  How could Senator Hatfield plant this tree when it had been extinct 
for millions of years in North America? He could plant it because in 
the late 1940s, a small grove was found in China of this particular 
tree--the only place on the planet where it still existed. So he 
arranged to get one of those trees. He was going to plant it there.
  At that moment, as they were getting ready to plant, his team saw 
Senator Kennedy's team and said: Senator Kennedy, you should come out 
and join Senator Hatfield.
  They went out by this walkway between here and Russell. Senator 
Kennedy said: In honor of the work we are doing together, this 
bipartisan work on nuclear weapons, this should be known as the peace 
tree.
  They were working on the zero option, the nuclear freeze movement--
let's not add any more nuclear weapons to the world; they are already 
dangerous enough. They did a lot of work on nuclear weapons, and I must 
say I was reminded of it.
  When I came here, John Kerry and Dick Lugar--a Republican and a 
Democrat--were working on New START together. They considered that 
treaty here on the floor of the Senate, but it became much more 
difficult now than then to have this sort of bipartisanship work.
  At any rate, please take a walk, if you are here in DC and on the 
grounds of the Capitol, and take a look at that peace tree. That peace 
tree is just on the verge of becoming the tallest tree on the grounds. 
It is now 32 years old. Let's hope that as it becomes the tallest tree, 
it will have kind of a Biblical influence and bring more peace to a 
world in desperate need of it.
  We need more of that peace tree influence here in this Chamber. That 
influence is sorely lacking. The type of cooperation between Democrats 
and Republicans that existed doesn't exist today, and we are here at 
this very moment on a tragic course to destroy the centuries-old 
tradition of a 60-vote, bipartisan majority to proceed to approve a 
nominee to the Supreme Court. That tradition ensures that Presidents 
don't nominate extremists and hopefully ensures that the folks who 
serve will serve the Constitution, the ``We the People'' Constitution, 
not some ideological extreme to the right or to the left.
  So I want to go back to the core premises of why I am here tonight 
talking to the Chamber, sharing these thoughts with all those who are 
watching the Chamber, and that is we must recapture the type of 
cooperation and bipartisanship that made this Chamber able to address 
the problems facing America. Mahatma Gandhi said that to simply operate 
by the premise of an ``eye for an eye only . . . [makes] the whole 
world blind.'' Well, if we operate on the premise of the Senate that we 
are never going to work together to solve problems because we are of 
different parties or a different party than the President, and we want 
to make sure the President doesn't get any credit for having helped 
improve a situation, then all of us suffer from the broken existing 
policies, the dysfunction of existing policies, the poison of the 
superpartisanship.
  Let's go back to the basic premises that we need to address--the 
three premises. The first is that this seat is a stolen seat--and if we 
could put up the chart with the nine Justices. Here is the story in a 
nutshell: 16 times in our history there was an open seat during an 
election year, 15 times the Senate acted, 12 of those times they 
confirmed the Justice, and 3 of those they rejected the Justice. But 
the point is, in 15 out of 15 times before Antonin Scalia died and 
Merrick Garland was nominated by President Obama, the Senate acted. 
Here are nine of those.

[[Page 5402]]

These are the nominations that occurred, like Merrick Garland's, in 
which the vacancy and the nominations occurred before the election. So 
they are most similar to the situation of Merrick Garland.
  Then there were another seven under more difficult circumstances 
where the nomination did not occur until after the election, and the 
Senate had very little time in which to vet and make a decision, but 
they did make a decision in each and every case until last year, when 
the majority said: We will not consider the President's nominee. We 
will not hold a hearing, we will not hold a vote, we will discourage 
folks from even talking to him, and we will not exercise our advice and 
consent responsibility. That is the first big issue.
  The second big issue is that the nominee himself is from the extreme 
right. There is a chart that shows--and we don't have it with us; maybe 
we will have it later tonight. There is a chart that shows the 
distribution of decisions, and it has basically two curves with a big 
kind of bell curve with a big gap in between. So it goes up, it comes 
down, and it goes up and it comes down, and it reflects the ideological 
division of the Court from decisions they have made. On this chart the 
folks analyzing these decisions said: Where would Neil Gorsuch be? 
Would he be in the ``we the people'' bell curve of decision making? 
Would he be in the ``we the privileged and powerful'' bell curve? They 
found that not only would he be in the ``we the powerful'' bell curve, 
but his position on the curve would be to the far right of the curve.
  I mentioned earlier the analysis by the Washington Post. This is an 
individual who was rated by the professional analysts as being more 
conservative than anyone who serves on the Court. I went through a 
series of cases, and I will be going through them again as the night 
wears on, in which he twisted the law to find for the powerful over the 
individual time and time and time again. Someone who is way outside the 
judicial mainstream and who twists the law to find for the powerful 
over the people doesn't belong in the Supreme Court of America. So that 
is the second big problem.
  The third big problem is that the President's team is under 
investigation for collaborating with the Russians interfering in our 
November general election. This is a very serious question. There is a 
very dark cloud over the legitimacy of the election and therefore the 
legitimacy of this President. If President Trump worked to conspire 
with the Russians or his team conspired with the Russians at his 
direction or his knowledge, that is traitorous conduct because the 
Russians attacked the fundamental institutions of our country. Trying 
to delegitimize and change the outcome of our election and conspiring 
with a foreign power to attack the foundation of our Democratic 
Republic--that is traitorous conduct. We have to get to the bottom of 
it, and we shouldn't be considering on this floor a nominee under that 
set of circumstances. Let's complete the investigation, find out what 
went on, and if the cloud clears, then we can proceed.
  So those are the three substantial issues for why we should not be 
here considering this nominee.
  The stories I was sharing with you about how I first came to the 
Senate as an intern for Senator Hatfield and then came back to Capitol 
Hill working for a think tank sponsored by Congress, the Congressional 
Budget Office--my responsibility was to analyze the impacts of various 
potential strategies in the development and deployment of our strategic 
triad, our nuclear triad. We have air-delivered and ballistic missiles, 
land-based ballistic missile delivered weapons, and marine weapons--
that is the triad. That was my job, to consider the implications of the 
path we might go to. What were the budgetary implications, what were 
the performance implications, what were the implications for deterrence 
or the circumstances that might trigger a nuclear war. So I was back 
here on Capitol Hill in that capacity. What I saw was a Senate 
fundamentally different than the one we have today.
  I was reminded of this when, back in 2013, I was working to bring a 
bill to the floor called the Employment Non-discrimination Act. This is 
an act that Senator Ted Kennedy had sponsored, and if I recall right, 
it was first sponsored in 1994. Then, 2 years later--I believe it was 
in 1996--it was considered on the floor of the Senate, and it lost by 
one vote. It lost 50 to 49. The Senator who was missing, it was 
believed, would have voted for it, and the Vice President breaking the 
tie would have voted for it, but people felt, well, it will be back up 
before the Senate soon enough.
  The point here is that the vote was a simple majority in that 
setting, and the filibuster was reserved for very rare circumstances. 
This happened to be a bill related to ending discrimination for our 
LGBT community in employment, and anything involving what some may 
construe as a social issue is one that many people have politicized 
greatly. This was simply an issue of fairness in employment, but nobody 
required a simple majority to close debate. They reserved the simple 
majority for profound principles. It was so that this body can function 
because it was primarily a simple-majority organization.
  When I was covering the Tax Act of 1976, the issues on these 
amendments came up one after another--what seemed like every hour--were 
simple-majority votes with a lot of bipartisan cooperation. We have 
become so polarized, we have become so divided, and this nomination and 
this hearing right now are going to reverberate through the decades to 
come as the lowest point, the biggest failure of this institution. We 
do have the power to prevent that from happening because we haven't yet 
voted on closing debate. Yet we have just a short period of time to set 
this nomination aside.
  Set it aside. Tell the President we need to heal this institution and 
the Court by nominating Merrick Garland. Set it aside because the 
nominee, Neil Gorsuch, is from the radical rightwing fringe, out of the 
tradition of having mainstream Justices. Set it aside because there is 
an enormous cloud over President Trump as to whether he is a legitimate 
President, given the investigations into the conspiracy with Russia. 
For all those reasons, set it aside.
  Also set it aside because never before has a majority leader tried to 
shut down this debate with a petition to close debate on the very first 
day. It takes 2 days for that petition to ripen. There are folks who 
have said that almost never is a Supreme Court nominee filibustered. 
Well, it gets a little confusing because what does filibuster mean? 
Does it mean deliberation at length? In this case, we have had a lot of 
nominees filibustered because they have been deliberated at length. 
Does it mean that we vote on a petition to close debate? Well, that 
really changes the analysis because we have rarely had a petition to 
close debate on a Supreme Court nominee, and we have never had a 
petition to close debate filed on the first day of debate because of 
the mutual respect that all the voices would be heard, and with someone 
who was controversial enough for people to want to talk for days and 
days and days, this body heard them out. The American people heard that 
conversation and responded to it, and trends developed. People said: Do 
you know what? No, this person really is suitable. And they were 
confirmed. Sometimes they were withdrawn by a President. The point is, 
in rare cases was a petition filed to close debate. Yet here we have 
for the first time in U.S. history--it just happened a couple hours 
ago--shutting down the debate as fast as they can. That is the opposite 
of a deliberative body.
  When I was back here as an intern, we had that age-old saying about 
the Senate being the world's greatest deliberative body. I saw that 
body. I saw people here on the floor talking to each other, listening 
to each other, holding a debate, voting on amendments and immediately 
going to the next amendment.
  I remember on one occasion--I mentioned that once an amendment was 
done, there wasn't another one negotiated between the Democrats and 
Republicans, so there were long periods of silence, the way we operate 
now. No, it

[[Page 5403]]

was the next person recognized by the Chair, and the Chair heard a lot 
of people at once, probably working to send one amendment to the left 
side of the Chamber and one to the right side of the Chamber, one to a 
senior Member, maybe one to a more junior Member, but eventually, 
because of the expeditious consideration, everyone got to have their 
idea considered and pretty much voted on by a simple majority.
  How different that is from what is happening right now at this moment 
in this Chamber when we are at the very peak of pointed partisanship 
coming from my colleagues across the aisle. They have stolen a seat for 
the first time in U.S. history. They have proceeded to put it on the 
floor and, for the first time in history, they have filed immediately a 
petition to close debate. Every 5-to-4 vote from here on until who 
knows when--our children's children--will be looked at, and people will 
ask: Is this a decision because of the stolen seat? Would this have 
been a ``we the people'' decision rather than a ``we the powerful'' if 
not for that stolen seat? That is a huge erosion of the legitimacy of 
the Court.
  Do Members of this Chamber really want to do that kind of profound 
damage? They will do that profound damage if the current direction 
continues over the next couple of days, and that is a place in which I 
do not want us to be. Therefore, this is kind of my own, personal 
protest of where we have come, and it is my own request that we change 
direction. I plan to keep speaking for quite a while longer, as long as 
I am able. That will, hopefully, be, at least, a couple of more hours. 
I am going to go into more depth about these issues that I have laid 
out, and I am going to start by going through each piece in a lot more 
detail.
  Where do we start?
  This journey began with Justice Scalia's death on February 13, which 
was a little over a year ago. Then it was a month later that the 
President fulfilled his responsibility under the Constitution and 
nominated Merrick Garland. There were still 10 months left in the 
administration at that time.
  Earlier, I heard the majority leader say that no one has ever 
filibustered a Supreme Court nominee. That is not quite true. There 
have been some filibusters, more or less, if I can find them. Yet what 
happened last year was a 293-day filibuster of Merrick Garland by my 
Republican colleagues. It was not just an ordinary filibuster but a 
special sort of failure to exercise their constitutional responsibility 
of advice and consent. It was the first time in our history that a 
nominee was not acted on when the nominee was being considered for a 
seat that came open during an election year.
  There are a few of my colleagues who like to say that the former Vice 
President, Joe Biden, gave a speech and said--it was theoretical 
because there was not an open seat--if a seat comes open in the summer 
of an election year, maybe we should not consider it until the 
intensity of the campaign has passed, meaning after the election.
  We saw earlier, when we put up the chart--and I will put it up 
again--that there were seats that opened up before an election. On 
these seats here--these four seats--the vacancies were before the 
elections. They were in August, May, October, and October. The 
nominations did not come until after the November elections--in 
December and February or in December and January. Yet the Senate acted 
in those situations.
  No matter how you slice it, 15 times there have been open seats. Some 
occurred after the elections, and the Senate acted on the nominees. 
Some occurred before the elections, but the nominations did not occur 
until after the elections. The Senate acted in these cases. Then there 
were another nine cases in which the nominations opened up before the 
elections.
  Biden made the simple point that, if the seat opens in the heat of 
the summer, before the November election, maybe it would make sense to 
hold off considering the nominee until after the election. That is 
completely consistent with our history. My colleagues tried to twist it 
into something else--as an argument that we should not consider a 
nominee during an election year. Of course, that is not what Biden said 
at all. It was not even close.
  Let me tell you, when you have to try to find one sentence from 20 
years ago from one of the people who has served in the Senate and when 
that is the only evidence you can find to back up your case, you are 
not just on thin ice. You have fallen through the ice and into the 
pond. Your argument is that weak and that terrible. Whenever you hear 
my colleagues ask: Didn't the Vice President, when he was a Senator, 
suggest a theory that we should not consider a nominee during the heat 
of the campaign right before an election? Yes, he said you should wait 
until after the heat of the campaign. It was one sentence, 20 years 
ago, from one Senator. If your argument is that weak, please try to 
find some better argument to make.
  We are not here considering something of small importance. We are 
here, considering an issue that has profound consequences for the 
integrity of the Senate because it is the first time in U.S. history 
that a Supreme Court seat has been stolen. It has a huge impact on the 
integrity of the Supreme Court because this is a court-packing scheme. 
If the Court is packed, it delegitimizes its decisions. Let's not pack 
the Court. That is why I am here, speaking tonight.
  On February 13, the very same day that Antonin Scalia passed away, 
the majority leader came to the floor and released a statement that 
read, essentially: We intend to steal this seat.
  Here is what Majority Leader McConnell said:

       The American people should have a voice in the selection of 
     their next Supreme Court Justice. Therefore, this vacancy 
     should not be filled until after we have a new President.

  He reiterated opposition to any Obama nominee on the day that 
President Obama fulfilled his constitutional responsibility by standing 
in the Rose Garden and nominating Merrick Garland. When our majority 
leader reiterated his opposition, what did he quote? He quoted the one 
passage that was taken out of context from Biden's speech from 20 years 
ago.
  That was the foundation on which he based a proposition to forgo our 
responsibility as a Senate to provide advice and consent under the 
Constitution--one sentence out of context. He turned the meaning on its 
head of a former Senator from 20 years ago. That is how weak the case 
was that the majority leader presented for failing to perform our 
constitutional responsibility. That was how weak the case was that he 
presented for stealing a Supreme Court seat in a court-packing scheme.
  He said to give the people a voice. The American people voted 
overwhelmingly for Hillary Clinton. She won by more than 3 million 
votes. She would have won by a lot more if it were not for voter 
suppression. We have one party that generally believes in voter 
empowerment--that the foundation is ``we the people'' and that part of 
citizenship is to vote. We have one party that has resorted to trying 
to prevent people from voting--voter suppression, gerrymandering, 
changing the shape of a district to deprive people of having a voice 
here in Congress, changing the dates in which early voting can occur so 
that people have less of an opportunity to vote, changing the locations 
of precincts, which is where your voting takes place.
  Some of the voter suppression tactics involve things that are just 
misinformation--false information--and telling people that the vote has 
already occurred or the location has been moved when it has not or that 
the votes are going to close earlier than they are actually scheduled 
to close--or a whole host of things.
  The majority leader said to give the people a voice. The people voted 
overwhelmingly for Hillary Clinton. So it would follow that the 
majority leader would come to this floor and say: The people voted 
overwhelmingly, by 3 million votes, and it would have been a lot more. 
So we will now consider Merrick Garland because he was the nominee from 
a Democratic President--the seat he stole. The people have spoken. The 
majority has said that we do not want the Republican, that we want the 
Democrat. So we will go ahead and hear the

[[Page 5404]]

Democratic nominee, and we will vet and vote on Merrick Garland.
  But it is a funny thing in that that did not happen because the goal 
was not to give people a voice. The goal was to steal the seat and 
deliver it to a Republican President who would nominate someone from 
the extreme right and pack the Court, undermining ``we the people'' in 
favor of ``we the powerful and the privileged.''
  The Democrats did not politicize the Court. The Republicans 
politicized the Court. The American people did have a voice in 
Garland's nomination. They had a voice by their voting twice for 
President Obama. Throughout our entire history, the Senate has 
considered the nominee from the President in power, when the vacancy 
occurs--even when it is an election year--because that is what the 
Constitution tells us to do--not to steal the seat, not to pack the 
Court.
  This politicization, this gamesmanship, this hypocrisy is so extreme 
and so dangerous. I heard that some of my colleagues were asked if they 
would want their election year rule to apply to President Trump--that 
he could not fill a seat that would come open in the fourth year of his 
Presidency. That was the principle they advocated for last year. Their 
answer was no because there was no principle to the position. It was a 
warfare tactic of partisanship to pack the Court. It was the end 
justifies the means even if the means violates the core premise of the 
Constitution and does deep damage to the Senate and does deep damage to 
the Court.
  Just this past Sunday, while speaking to Chuck Todd on ``Meet the 
Press,'' the majority leader began to walk back his past statements 
that a Supreme Court vacancy should not be filled in an election year.
  Todd asked:

       Should that be the policy going forward? Are you prepared 
     to pass a resolution that says: In election years, any 
     Supreme Court vacancy will not be filled, and let it be a 
     sense of the Senate resolution that no Supreme Court 
     nominations will be considered in an even numbered year?

  The majority leader responded:

       That is an absurd question.

  Why is it an absurd question given that it is the principle that 
election year nominations should go to the next President? I will tell 
you why it is absurd. It is absurd because it is contrary to the 
Constitution.
  Mitch McConnell, the majority leader--my majority leader, the 
majority leader of the Senate, the top person in charge--was right when 
he said it was absurd because, of course, we should not abandon our 
constitutional responsibilities. It is an absurd argument to make 
today, and it was an absurd argument when he made it last year. If it 
were only absurd and not deeply damaging, then we could all perhaps not 
be so deeply, deeply concerned about the situation.
  Merrick Garland's record. Judge Garland had more Federal judiciary 
experience than any Supreme Court nominee in our Nation's history. So 
the nominee put forward by President Obama had more Federal judiciary 
experience than any nominee in our Nation's history. He graduated summa 
cum laude and valedictorian from Harvard College.
  After graduating, he clerked for Judge Henry J. Friendly in the U.S. 
Court of Appeals for the Second Circuit. He clerked for Justice William 
Brennan, Jr., in the U.S. Supreme Court. He was in private practice at 
Arnold & Porter, focusing on litigation and pro bono representation of 
disadvantaged Americans. He left his partnership for a low-level 
prosecutor position in the administration of George H.W. Bush.
  In 1993, Merrick Garland went to the Justice Department as Deputy 
Assistant Attorney General in the criminal division, and that is where 
he oversaw prosecutions in the Oklahoma City bombing, helping bring 
Timothy McVeigh to justice. He helped oversee prosecutions in the case 
against Ted Kaczynski, the Unabomber, and the Olympics bombing 
committed by Eric Robert Rudolph that killed 1 person and injured 111.
  He made a name for himself in these cases by being a strictly by-the-
book prosecutor. He insisted on obtaining subpoenas, even when 
companies volunteered to hand over evidence. He insisted on keeping 
victims and relatives informed as the cases developed. He served for 19 
years on the D.C. Circuit Court.
  That is a lot of experience. And all that happened before he was 
nominated by President Bill Clinton in 1995 for the D.C. Circuit Court.
  He received a confirmation hearing in the Senate Judiciary Committee 
in December of that year, but Republicans did not schedule a floor vote 
on his confirmation because of a dispute over whether to fill the seat. 
So President Clinton renominated Merrick Garland for the circuit court 
on January 7, 1997, and he was confirmed on the Senate floor by a vote 
of 76 to 23 that year, in March.
  At the time of the consideration of Merrick Garland on the floor, my 
colleague from Utah, Senator Hatch, had very flattering things to say 
about Merrick Garland. He said:

       To my knowledge, no one, absolutely no one, disputes the 
     following: Merrick B. Garland is highly qualified to sit on 
     the D.C. circuit. His intelligence and his scholarship cannot 
     be questioned.

  He continued:

       I do not think there is a legitimate argument against Mr. 
     Garland's nomination, and I hope our colleagues will vote to 
     confirm him today.

  Then he said:

       In all honesty, I would like to see one person come to this 
     floor and say one reason why Merrick Garland doesn't deserve 
     this position.

  The Senator went on to suggest that his colleagues who were blocking 
the confirmation vote were trying to obstruct his confirmation and were 
``playing politics with judges.''
  I so respect the statement that my colleague from Utah made in 1995, 
admonishing his colleagues to quit playing politics with judges.
  But what has happened between 1995 and 2017, over these last 22 
years? A huge amplification of playing politics to the point that when 
Merrick Garland came back before this body, only a couple of 
Republicans were willing to stand up and say: Let's quit playing 
politics. And they were quickly silenced.
  During his 2005 confirmation hearing, Chief Justice John Roberts 
remarked about serving on the Circuit Court with Merrick Garland: ``Any 
time Judge Garland disagrees, you know you are in a difficult area.''
  So here is the Chief Justice, considered one of the conservatives on 
the Court, who is saying that if you disagree with Merrick Garland, you 
are in a difficult area. You have to go and figure out why you would 
disagree because he is so good at working his way through the law and 
coming to a position of calling the balls and strikes.
  That is the type of respect there was for Merrick Garland. And this 
respect and admiration continued right up to his official nomination on 
March 11, 2016. Five days before his nomination, my Senate colleague--
my colleague from Utah--told a reporter that if President Obama named 
Judge Garland, ``who is a fine man,'' to fill Scalia's seat, he would 
be a ``consensus nominee,'' and there would be no question of his 
receiving a bipartisan confirmation--five days before the President 
nominated Merrick Garland.
  The President recognized that the Senate was controlled by the 
Republican majority. He consulted on both sides of the aisle. He chose 
a nominee admired on both sides of the aisle.
  Standing in the Rose Garden on March 16 of last year, President Obama 
officially nominated Judge Garland to replace the late Justice Antonin 
Scalia, and President Obama called Merrick Garland the right man for 
the job: He deserves to be confirmed.
  His nomination had endorsements from a broad range of organizations 
and individuals. The American Bar Association, the Hispanic National 
Bar Association, eight former Solicitors General, including Neal 
Katyal, Gregory Garre, Paul Clement, Theodore Olson, Seth Waxman, 
Walter Dellinger, Drew Days, and Kenneth Starr. You recognize some of 
those names. Some come from the right side of the spectrum, some from 
the left. The point was that eight former Solicitors General--Ken 
Starr, 1989 through 1993, and

[[Page 5405]]

Drew Days who followed him, and Dellinger, who followed Days, and 
Waxman, who followed Dellinger, and Olson, who served from 2001 to 
2004, and Clement, who followed Olson, and Garre, who followed Clement, 
and then Neal Katyal, who served in 2010 and 2011.
  Endorsement from the American Bar Association Standing Committee on 
the Federal Judiciary rated him ``well qualified'' as a Supreme Court 
nominee, the highest rating they can give, and their evaluation of his 
record stated that Judge Garland ``meets the very highest standards of 
integrity, professional competence, and judicial temperament.''
  So there we have our President, President Obama, last year consulting 
in a bipartisan fashion, choosing a nominee who had been highly 
complimented by Senators on both sides of the aisle, seeking to find 
someone straight down the judicial mainstream, and what was the 
response of the majority leader of our body, our assembly here? His 
response was: We are going to steal this seat. It doesn't matter that 
this nominee is highly qualified. It doesn't matter that Democratic and 
Republican Senators have complimented him highly and have high respect 
for him. It doesn't matter that the Chief Justice has enormous respect 
for his judicial thinking. We are going to steal this seat in hopes of 
being able to pack the Court. That is what happened later in the day, 
after Merrick Garland was nominated.
  The Senate has always functioned by cooperation, with a big element 
of tradition thrown in. A defining feature of the Senate is a 
commitment to the traditions of fair play, allowing us to continue 
functioning to solve America's problems in politicized circumstances. 
This is enormously important to the success of this Chamber.
  I had heard when I was running for the Senate in 2007 and 2008 that 
something terrible had happened with this Chamber in the years that I 
had been back in Oregon and that a group had decided that they would 
use this Chamber as a weapon against any Democratic President rather 
than as a forum to solve America's problems. I didn't believe it. I 
didn't believe that the Senate I saw as an intern in 1976; that I saw 
when I was volunteering for organizations and working here in DC, 
washing dishes and waiting tables in 1977; that the Senate I saw when I 
was a Presidential fellow with a Republican Defense Secretary, Caspar 
Weinberger; that the Senate I saw when I worked for Congress in a think 
tank on strategic nuclear weapon policy for the Congressional Budget 
Office--I couldn't believe that a group of Senators had decided to use 
this Chamber as a weapon against the executive branch, if the executive 
branch happened to be from the other party. I didn't believe it. I 
dismissed the commentary I was hearing about what was occurring in this 
Chamber.
  Then I arrived in 2009, and I quickly saw that I was wrong; that the 
stories about this Chamber being taken over by an urge to use it as a 
weapon against Democratic Presidents had, in fact, been true. We all 
were nearly knocked over when the majority leader announced that his 
goal was to make sure--his top goal, his determining vision--was to use 
this Chamber to prevent President Obama from being reelected. And we 
are sitting here going: Let's work together on healthcare policy. Let's 
work together to make a fair tax system. Let's work together to develop 
the infrastructure that is so needed because the infrastructure our 
parents built is wearing out. Let's work to develop that infrastructure 
because we have new demands of a different economy. We need better 
bridges and better railways and better ports and better electric 
transmission lines, and we certainly need better broadband, or at least 
broadband of some kind, as a starting point in rural America. Those are 
the challenges we face. Let's work together.
  And then I watched as a key issue was turned into a political weapon 
against the President, rather than working to solve problems here in 
America, and that issue was healthcare.
  In April 2009, I was handed a brief written by Frank Luntz, who was a 
strategist for the Republican team, and that brief said, Whatever ideas 
that the Democrats work to pursue on healthcare, here is our strategy: 
Don't cooperate; call it a government takeover--whatever they do.
  I came to the floor of the Senate, and I gave a floor speech in 2009. 
I waved around the Frank Luntz memo, and I said: This is what is wrong 
with America. We have millions and millions of people without access to 
healthcare in America, and instead of working together, the Republican 
strategist is saying, Whatever ideas to improve the healthcare system 
they come up with, oppose them and call it a government takeover.
  Democrats said: You need bipartisan cooperation to get a healthcare 
bill through here. So they held 5 weeks of hearing in the HELP 
Committee--Health, Education, Labor, and Pensions Committee. I was 
assigned to that committee. Senator Ted Kennedy had assigned me to be 
on that committee, in partnership with Majority Leader Harry Reid. I 
was so happy to be on that committee. For 5 weeks around a square 
table, I saw idea after idea presented as amendments were discussed, 
debated, and voted on. Approximately 150 Republican amendments were 
adopted. Imagine a committee adopting today, under the control of the 
Senate, 150 Democratic amendments on a major bill--adopting, not just 
considering. Democrats went through every title, with television there 
and all of America watching for 5 weeks.
  That was just for the HELP Committee. Then there was a whole other 
process with the Finance Committee in which Senator Baucus led a group 
with Senator Grassley, if I am not mistaken. They had three Democrats 
and three Republicans, and they worked on the finance side to come to a 
bipartisan conclusion. But eventually Frank Luntz's vision won out: 
Whatever is suggested, oppose it and call it a government takeover. 
That would do the most damage to the President. That was the strategy.
  Democrats said: Well, it looks like we are going to have to take the 
Republican healthcare plan.
  What was the Republican healthcare plan? The Republican healthcare 
plan was to use a marketplace in which private companies would offer 
their insurance. Compare the insurance, one policy to the other, to 
find out which one best suited your family, and then based on income, 
you could get tax credits to be able to afford to acquire that 
insurance policy, so that essentially we would have a pathway to 
healthcare for every American citizen, for the millions and millions of 
people who didn't have that pathway. That was the Republican plan. It 
came out of the American Enterprise Institute as the marketplace 
solution for healthcare. It wasn't a public option. It wasn't, let's 
lower the age of Medicare. It wasn't single buyer. It was the 
Republican marketplace plan. It was already one that had been tested by 
a Republican Governor in Massachusetts. It was known as RomneyCare. So 
it was a Republican think tank plan and a Republican Governor-tested 
plan.
  Democrats said: OK, let's go that way. We think there are better 
pathways, but we will go with that because we need to be able to bring 
this Chamber together.
  But my colleagues across the aisle, under this vision of using the 
Senate as a weapon against a Democratic President, decided they were 
going to oppose it just like Frank Luntz laid out in those first few 
months of 2009.
  We see that same profound partisanship in this first-ever theft of a 
Supreme Court seat. We see that same profound partisanship in the 
strategy behind that theft, which is to pack the Court. We see that 
same profound strategy in the action that happened a couple hours ago. 
That was the first time in U.S. history a motion to close debate was 
filed on the first day of a Senate debate.
  So turn the clock back to those first 13 States and 26 Senators 
trying to figure out how the Senate would operate. They weren't really 
planning on it being a public forum, but they did have

[[Page 5406]]

this sense that it would be wrong to close debate before every Senator 
had shared from their experience. So they had a rule. In their initial 
rules of the Senate, they had a rule to close debate. They never used 
it. They never used it, as far as we know, not once, because they 
wanted to give everyone the chance to be heard. Of course, the Senate 
was only a quarter of the size--26 Senators instead of 100 Senators.
  When they rewrote the rules of the Senate, they said: We don't need 
to have a rule for closing debate by simple majority called to 
question, if you will. We don't have to have it because we are going to 
hear everybody out before we vote. So that kind of launched that 
tradition of hearing each other out.
  Later, when the Senate restored a rule in which a supermajority could 
close debate, it took a supermajority. At another point, the Senate 
said: We need to have a little smaller supermajority.
  The reason that triggered, going back to having a strategy for 
closing debate--and I know historians will correct me if I have this 
wrong--in World War I, the President wanted to put military defenses on 
some of the commercial ships to fend off the threat from the Germans. 
There were Senators who said: This will draw us into war. We are not in 
the war yet. This will draw us into war by weaponizing our commercial 
ships.
  There was a date set for the Senate to adjourn. They proceeded to 
keep talking until that time arrived so the Senate could not act to 
pass that law, which the vast majority of the Senate thought was 
appropriate.
  They said: Well, we can't have just a small group, which basically 
would be the tail that wags the dog. That denies our ability to make 
decisions. So we will have to have a strategy for closing debate.
  So they established that strategy. The general principle behind it 
was most of the time you hear people out here in the Senate rather than 
closing debate. But what we saw tonight for the first time in U.S. 
history--a cloture petition filed on the very first day.
  James Madison, speaking to the Constitutional Convention, remarked 
that the Senate was a necessary fence to protect the people from the 
transient impressions into which they themselves might be led. It was a 
reason for the longer terms for the Senate. They have 2 years in the 
House; we have 6 years in the Senate. The Senate rotates so a third are 
elected every 2 years for 6-year terms.
  There is a saying attributed to President Washington--as far as we 
know, he never said it, but still it was clever enough that it has 
reverberated on down through the centuries--that the Senate would be 
the cooling saucer, so that you had your tea and it was too hot, and 
you poured it into the cooling saucer until it was just right. You 
don't act impulsively because you have 6-year--longer--terms and a 
smaller body who can ponder the issues more carefully.
  So here is the Senate, intended to be the cooling saucer, but what do 
we have right now? We have the stove turned up to the highest possible 
temperature. There is no stepping back from this course of undermining 
the integrity of the Senate and the integrity of the Court. It is full 
steam ahead. File the petition on the first day of debate so we can 
close this debate and have this vote done by Friday, the majority 
leader said. Vote on Thursday. Somehow we are going to maybe change the 
rules and vote on Friday if there are not enough votes to close debate.
  Back in 2013, there was an enormous blockade using the advice and 
consent power to obstruct both executive branch nominees and judicial 
nominees. This enormous blockade was used by colleagues across the 
aisle as a weapon against the judiciary and executive branch.
  When the conversation occurred back among the Founders, they said: 
Advice and consent power won't have to be used very often to turn down 
a Presidential nominee because just the very fact that the Senate can 
serve as a check on a Presidential nomination will cause a President to 
make wise appointments.
  They had actually wrestled with how to construct this situation. How 
do you construct this check and balance?
  Some said: The executive branch--why don't we have the President head 
it but have the positions filled by Congress?
  Others said: That is not such a good idea because one Senator's 
friend will be nominated for this position in exchange for another 
Senator's friend being nominated for that position, and the people will 
never really know who, where, why. There is no accountability.
  That is what it came down to.
  So we will have a single person--the President--nominate for the 
executive branch. Plus, that way the President can nominate people to 
help fulfill the vision the President campaigned on, which makes a lot 
of sense. The people didn't just elect a name; they elected a vision 
for the country. And the person responsible for helping to implement 
that--the executive branch--the President, should have a team who can 
go forward with that vision.
  Then the crafters of the Constitution said: But what if the President 
goes off track and starts nominating people who don't actually have the 
skills to fill the positions to which they are nominated? What if the 
President nominates people because they have done some favor for the 
President in the past, so that there is a conflict of interest? What if 
the President nominates someone of poor character? Shouldn't there be a 
way to put a check on a deeply misguided nomination?
  The founders said: Yes. We will create an advice and consent power 
for the U.S. Senate to be a check on misguided nominations.
  So here we are looking at that original philosophy of the Senate and 
the responsibility to stop misguided nominations through advice and 
consent, and we have had two profound betrayals of that responsibility 
last year and this year. The betrayal last year was that the Senate 
refused to exercise its responsibility at all. It stalled the seat. It 
sought to pack the Court. Now we have a deeply misguided nomination 
before us, an individual who is from the extraordinary right, not from 
the mainstream, who has twisted the law time and time again to find for 
the powerful and the privileged over ``we the people,'' and yet that 
nomination is here on the floor, not a single vote in the Judiciary 
Committee from across the aisle.
  This chart reflects the distribution of Federal judge ideology. If we 
had been putting up this chart decades ago, we would have probably seen 
a single bell curve. There would be folks on the right and folks on the 
left. But now we have the twin peaks chart of judicial decisionmaking. 
So the decisions are falling more and more into a ``we the people'' 
camp that says ``Let's fulfill the vision of our Constitution'' and a 
``we the powerful'' camp that says ``Let's turn the Constitution upside 
down and run this country by and for the powerful.'' Where does this 
nominee fall? Not into the ``we the people'' vision of our Constitution 
and not even within the left side of that ``we the powerful'' twin peak 
but to the right side of it. That is where we are.
  The supermajority to close debate--commonly referred to as the 
filibuster--is a power we have sustained in order to have nominees who 
are not from the ideological extremes. But now we have one. We have one 
who, when a trucker was protected by the law--because of his personal 
safety, and he was freezing in subzero temperatures and had to go get 
warm and come back, and the law protected him from getting fired--he 
got fired. The court said: Absolutely, you can't fire someone for 
protecting their safety or others. Judge Gorsuch found a way to turn 
that on its head.
  When we wrote a law to say that you have to provide an education to 
disabled children, Judge Gorsuch said that babysitting is fine, as long 
as there is basically--not exact words, kind of mere fringe of 
advancement--something that was essentially equivalent to babysitting. 
And the Supreme Court, all eight Justices occupying

[[Page 5407]]

both of those peaks, said that was absurd, and they overturned Judge 
Gorsuch, 8 to 0.
  We have this role from our Founders of being the cooling saucer. We 
have this role of being a check on the abuse of or misguided 
Presidential nominations, and we failed it last year by not doing our 
job. We fail it this year by considering anyone other than Merrick 
Garland. And we certainly fail it in the context of closing--
considering the possibility of closing debate. That is the conversation 
that the majority leader has been invested in--that if this judge is so 
extreme as to not to get the 60 votes to close debate, we will change 
the rules.
  Well, how about we change the nominee? How about we save the 
integrity of the Senate? How about we save the integrity of the Supreme 
Court? Change the nominee. Ideally, put Merrick Garland up, because 
that way we solve the problem of the stolen seat--this enormous court-
packing plan that is unfolding right before our eyes. And if the 
schedule on which the majority leader has said he wants to complete 
this court-packing occurs by Friday, it will be too late. We will have 
done the damage.
  George Washington shared his view of the Senate's role. The story 
goes that Thomas Jefferson returned from France to take on the duties 
as our first Secretary of State. He was having breakfast with President 
Washington and called for the President to account for having supported 
an unnecessary legislative Chamber in the Senate of having this 
conversation. That is when that conversation came up. We believe it to 
be apocryphal, but still the response, as written down at some later 
point in time, was that Washington asked: Why did you now pour that 
coffee into your saucer before drinking?
  Jefferson responded: To cool it. My throat is not made of brass.
  Washington said: Even so, we pour our legislation into the Senatorial 
saucer to cool.
  Is there a way that we can avoid what is unfolding now, this tragic 
miscarriage of the Senate's responsibilities?
  Whether that conversation took place, as I mentioned, is not actually 
known, but the fact that the story is still here means that it had some 
power behind it, whether it took place or not. And that was that for 
200 years and counting, the government has counted on the Senate to 
pause, to not give acceleration to the momentum of the day, but to 
pause and be thoughtful in considering the integrity of our 
institutions. And that integrity, that moment when we need to be the 
cooling saucer, is now.
  Unanimous consent has been a tool that the Senate has used. Many 
times, if you are watching the Senate, you will hear ``unanimous 
consent'' to do this or that. Earlier, the majority leader came and 
spoke. He said: ``I ask unanimous consent,'' and he laid out a plan for 
tomorrow about how this debate would proceed. That unanimous consent--
each and every one of those represents a form of cooperation, often the 
last vestige of cooperation. It also goes to this observation that the 
Senate is about hearing each other and working together.
  Robert C. Byrd once remarked:

       That is what the Senate is about. It's the last bastion of 
     minority rights, where the minority can be heard, where a 
     minority can stand on its feet. One individual, if necessary, 
     can speak until he falls.

  Well, you can't keep speaking if a cloture petition has been filed. 
So come Thursday, the phrase is the ``petition ripens,'' which means 
that it will be voted on, and generally it is 1 hour after we convene 
after an intervening day. So tomorrow, Wednesday, is the intervening 
day, and the vote will occur on Thursday. That is the opposite of what 
Senator Byrd was referring to because at that point, anyone who wants 
to be heard, can't be heard.
  The tradition of having weeks and weeks of conversation about a 
nomination that creates complexities or has complexities behind it--
that is being destroyed. That comity permeated many controversial 
debates the Senate has had over time. That willingness to hear each 
other and to vote is something that was embedded in the Senate as I saw 
it four decades ago and later in my life when I was working for 
Congress.
  There is no denying that the Supreme Court nominations have always 
been subject to a certain level of politics, but there has also been a 
certain level of cordiality to the process. Daniel Patrick Moynihan, in 
a debate on the nomination of Ruth Bader Ginsburg back in 1993, said:

       [The Senate] is perhaps most acutely attentive to its duty 
     when it considers a nominee to the Supreme Court. That this 
     is so reflects not only the importance of our Nation's 
     highest tribunal but also our recognition that while Members 
     of the Congress and Presidents come and go . . . the tenure 
     of a Supreme Court Justice can span generations.

  We are not here on the floor debating who will serve in some office 
in the executive branch for the next couple of years. We are here 
debating the nomination for the highest Court that could ``span 
generations,'' in the words of Daniel Patrick Moynihan.
  So what else would we consider more important than a Supreme Court 
nomination to adhere to the traditions of the Senate and to honor the 
60-vote requirement in our rules? We don't always like the nominee the 
other side has selected. We question them vigorously in confirmation 
hearings, and we end up voting against them. But until the situation 
last year with the death of Antonin Scalia, every vacancy in an 
election year for which a President proposed a Justice who has made a 
nomination--every time, the Senate did its job. It confirmed most. It 
rejected a few, but it did its job.
  Over the course of our Nation's history, there have been a total of 
164 Supreme Court nominations; 124 of those were confirmed, roughly 3 
out of 4, including elevating current Justices to Chief Justice. There 
have been 112 individuals who have served on the Supreme Court, and 39 
Presidents to date have appointed at least one Supreme Court Justice. 
But only once--last year--has the majority conspired to reject its 
responsibility to consider a nominee for a position that opened in an 
election year. Only once has the majority conspired to steal an 
election-year Senate seat and send it to the next President and pack 
the Court.
  The action last year is different from anything that has occurred 
before. There were some individuals--some colleagues across the aisle--
who advocated for the Senate fulfilling its constitutional duty in the 
case of Merrick Garland and for continuing the traditions of this great 
institution.
  One of my colleagues told a townhall audience last year--one of my 
Republican colleagues said:

       I can't imagine the President has or will nominate somebody 
     that meets my criteria, but I have a job to do. I think the 
     process ought to go forward.

  Another colleague sat down and met with Judge Garland, even knowing 
that the Republican leadership was saying that he would not get a 
hearing. That colleague declared, and I quote, that colleague was 
``more convinced than ever that the process should proceed. The next 
step, in my view, should be public hearings before the Judiciary 
Committee.''
  So I pause to thank my Republican colleagues who worked to stand up 
for the integrity of the Court and the integrity of the Senate and for 
due deliberation on a Presidential nomination during an election year. 
Thank you to my colleague from Kansas. Thank you to my colleague from 
Maine.
  There may have been others I didn't hear about, and I imagine there 
were because I think Members of this body take their responsibility 
extremely seriously. They take their oath of office seriously, and they 
were put in an impossible position when their leadership asked them not 
to exercise their advice and consent responsibility under the 
Constitution. That is where we were last year.
  Here we are, on the brink of doing devastating damage to the Court. 
Shouldn't we pause and be the cooling saucer? Shouldn't we send this 
nomination back to the President and ask for him to put forward Merrick 
Garland or someone who basically is on the same path that Merrick 
Garland was on--the path that was so honored and complimented by 
Senators on both sides of the aisle?

[[Page 5408]]

  Shouldn't we address this before we set the precedent of a stolen 
seat? Think about what this precedent means going forward. A few years 
from now, there may well be another vacancy, and this vacancy may be 
under a Republican President, and maybe the Democrats control this 
Chamber. At that point, do they say: We are going to rectify the wrong 
in the past and restore the integrity of the Court by taking that seat 
and forwarding it to the next President, hoping that it will be a 
Democratic President, and there will be a nominee who will restore the 
integrity of the Court because there will be a nominee more like 
Merrick Garland? Or will there be future leadership that says: Hey, 
their team stole a seat that occurred--an opening that occurred in 
January of election year. Let's steal one that happens in October the 
year before the election to balance it out. If you can steal it for 12 
months, why not steal it for a few more? Where does that end? What good 
does that do to our institution? What honor does that give to the 5-to-
4 decisions of the future?
  That is where we are headed. We are headed to a place that is 
breaking two centuries' worth of tradition and establishing a precedent 
that will do enormous damage to the Senate and to the Presidency and to 
the Court. That is why I am here addressing it at length tonight. I did 
find that when the majority leader didn't want to put into a resolution 
that the same rule he advocated for last year should apply to this 
President, it was clear--as clear as you could possibly make it--that 
what happened last year had no principle in it; it was an issue of 
partisan tactics to amplify the strength of one party and one vision--
that of government by and for the powerful--at the expense of the other 
vision. Don't we owe more in our role as Senators, especially on 
something as important as the Supreme Court and the integrity of the 
Court, than just another partisan strategy?
  I will tell you, I think about why it is that we are at this place 
right now. There are a couple of things that are very, very different 
from the Senate I first saw four decades ago and the America of four 
decades ago. One of those is that Senators four decades ago lived here 
with their families. They had a Monday-to-Friday workweek. They had 
evenings to build relationships, and they had weekends to do things 
with other colleagues across the aisle. They took a lot of bipartisan 
congressional delegations. They all knew each other well as friends.
  But now the Senate comes in on Monday night for a vote at 5:30 p.m. 
and we leave after a vote at roughly 3:30 p.m. on Thursday. So it is 3 
days--Monday afternoon to Thursday afternoon. We don't have the time in 
the evenings because of that compressed schedule. We don't have the 
time on the weekends because we are back in our home States or 
traveling somewhere else. So we don't have the relationships. We just 
don't have the common activities.
  There used to be lunches where the Democrats and Republicans ate 
together. Now there is a partisan Republican lunch, three out of three 
lunches and two out of three for the Democrats. We don't have that meal 
together to get to know each other, so you have to work extraordinarily 
hard to set up a meeting to try to work with a colleague on a topic. If 
it is something larger than you can discuss here during the middle of a 
vote, it can take a month to get a 20-minute meeting to ponder with a 
colleague how we might work together on a problem.
  So that is a change in this Chamber, but there is another big change. 
That second big change is related to the role of the media. We had big 
issues in our country decades ago, but we also had community 
newspapers, and we had three network television stations that 
essentially provided a foundation of information. We might have had 
different views about that information and different views about what 
we should do in the future, but we had a common foundation of 
information. Now we don't have a common foundation of information. 
Information flows in every possible direction, much of it made up.
  I was very struck when--I hold a lot of townhalls. My first summer as 
a Senator--2009--I was out holding townhalls. I do one in every county 
every year. Folks said: You know, why are you supporting this Senate 
healthcare bill that has a death panel in it? That was one of those 
false news stories.
  What was the real story? The real story is that a Republican Senator 
from Georgia had proposed--a Republican Senator had proposed that we 
pay doctors for the time they spend with their patients informing them 
about how to do a living will so that if they were incapacitated in the 
future, their desires would be followed, not someone else's desires--
not a death panel, their desires would be followed. That is as American 
as apple pie.
  We were going to make sure that we could control, each of us, our own 
future. It was a Republican proposal, a good proposal, a proposal that 
made a lot of sense so that people could have control over their future 
medical decisions if they were incapacitated. But for partisan 
political reasons, a candidate had twisted that into a death panel and 
turned it on its head, that someone else would make the decisions 
instead of you making the decisions for yourself, which is what it was 
all about.
  So I was at this townhall, and a constituent, an Oregon citizen, 
raised this issue.
  I said: You will be happy to know that they don't exist. You will be 
happy to know that the idea from which the false news story began was 
about empowering you to make your own decisions. Don't you feel better 
now knowing that the conversation in the Senate was about you 
controlling your own destiny?
  The woman said to me: I don't believe you.
  I said: Well, you don't have to believe me; I have the text right 
here that was proposed.
  I had heard about this issue, and so I wanted to make sure that 
people knew about it and that I could answer if asked. So I shared the 
text with her.
  She said: Well, I don't believe you. Who am I going to believe--a 
U.S. Senator or a television policy analyst?
  She meant Glenn Beck. Glenn Beck and others were simply making stuff 
up and putting it on their television show or their radio show, 
designed to infuriate people by setting up this false story--this false 
story that there was a government takeover and this false story that 
there was a death panel.
  If you want to understand what happened 2 weeks ago in the House when 
the House failed to pass a healthcare bill to replace ObamaCare, it is 
a story about false news. It is a story about partisanship over policy. 
It is a story about a year-plus of bipartisanship being trumped by 
Frank Luntz's vision of whatever is proposed, call it a government 
takeover. Even if--his memo didn't say this, but as it turned out, even 
if it was the Republican strategy of having a marketplace for people to 
get their health insurance, call it a government takeover.
  So when the Republicans said they were going to replace ObamaCare, 
the problem was that ObamaCare was the Republican plan, so they did not 
have anywhere to go. They could either tear down healthcare completely 
and put 24 million people on the ice--that is, out of reach of 
healthcare--by the way, not just individuals but rural healthcare 
institutions because the rural clinics were powerfully strengthened 
through the Affordable Care Act. The rural hospitals were powerfully 
strengthened through the Affordable Care Act. There was so much 
uncompensated care previously that hospitals and clinics had to give 
away for free, and now they were getting paid because people had 
insurance, so they were much stronger. So it was about 24 million 
people, but it was also about a vast healthcare infrastructure in rural 
America that the Republican plan would destroy.
  But they could not propose their own plan because their own plan had 
been adopted in 2009--marketplaces with private companies competing 
against each other, tax subsidies, tax credits so people could afford 
to buy those policies. That was the American Enterprise Institute plan. 
That was the Republican Governor's plan. That was RomneyCare. So where 
do you go if

[[Page 5409]]

your plan has already been enacted into law? If 150 of your amendments 
were accepted as part of that process, where do you go when you have 
used a false story, a false commentary to the American people year 
after year after year saying that something is some terrible thing that 
it is not? Well, where you go is the process blew up. That is where it 
went because it was based on a false foundation, the entire 8 years of 
attack on the Affordable Care Act--a false premise just like Sarah 
Palin's death panels were a false attack.
  We can't keep going through this extreme partisanship and save the 
Senate at the same time.
  Another challenge we have--in addition to the fact that the 
friendships that cemented the Senate together are not as developed as 
they were decades ago because we are not here and we don't spend enough 
time with each other--another problem is that we have all of these 
false stories being generated continuously to make people angry with 
each other. Those are certainly problems, but we have another big 
problem, and that problem is the concentration of campaign money, the 
dark money, the Citizens United money that is corrupting our political 
system.
  I can't convey how much damage this has done. Let's just review the 
biggest example of this strategy. The Koch brothers decided in 2013 
that they wanted to have a legislature that would support their 
extraction and burning of fossil fuels. There was this pesky little 
problem threatening the entire planet called global warming in which 
the burning of those fossil fuels was polluting the air, raising the 
temperature of the Earth, and having profound consequences.
  So people were talking about, how do we transition off of fossil 
fuels?
  The Koch brothers said: Well, that is our business. We can't let that 
happen. We have to have control of the House and Senate.
  So the story with the Senate is they decided to spend a vast sum of 
money on the campaigns of 2014. The result was that they influenced the 
elections and had a positive outcome, from their point of view, in 
Louisiana, Arkansas, North Carolina, in Iowa, Colorado, and Alaska. 
There were a few other States that they came to that year, including 
Oregon, my home State. So they won most of those campaigns. They put 
the Republican majority into office so they would have a Senate that 
would not be discussing the biggest threat to our planet--carbon 
pollution and global warming--and instead would have one that would 
sustain tax breaks to accelerate the extraction and burning--the 
profitability of extracting and burning fossil fuels.
  Then they did something that should be recorded as a significant 
moment in U.S. history. In January, as the Senate was coming in with 
this new Republican majority, they did not say: Well, that is great. We 
have a Republican majority, and now we have folks who will support our 
fossil fuel extraction and combustion. We will make a lot of money. 
They will keep the tax breaks in place for us.
  No, they didn't say that. They said: Pay attention.
  This was January 2015, 2 months after the election, and we were just 
coming in. The Republican majority was just coming in.
  The Koch brothers said: Pay attention. We are committing to spend the 
better part of $1 billion in the next election 2 years from now.
  I don't know that such a statement has ever been made by a body in 
the United States, a similar statement. Next election--we had just had 
this election--next election we are going to spend almost $1 billion.
  They wanted everyone in this new Republican-majority Senate to know 
who was in charge. The Koch brothers are in charge. They paid for the 
third-party ads that put your election in the victory column.
  You will pay attention--at your own risk if you don't.
  A number of my colleagues shared that this was a very real threat, 
that the Koch brothers would be happy to find a primary opponent and 
not just undermine them in the general election or fail to fund them in 
a general election--and the first bill up was one of the Koch brothers' 
top priorities, the Keystone Pipeline. So we now have a body about 
which, at least, you can say that a very significant behind-the-scenes 
force of this body is the Koch brothers. Well, how does this tie in 
with what happened in 2016 when Antonin Scalia died and there was an 
open Senate seat?
  Here is how it ties in: You had a 5-to-4 Supreme Court that had 
decided that it was OK for groups like the Koch brothers to spend 
billions of dollars in dark money, third-party campaigns, eviscerating 
the opponents on the other side of the issue.
  Four Justices had said no. In our ``we the people'' Republic, having 
that concentration of power is a corrupting force. It is an attack on 
the very design of our country, but you had five others who said: No, 
no, no, it is OK.
  That makes me think about a letter that Jefferson wrote. Jefferson 
was writing to a friend, and he said: There is a mother principle, a 
mother principle in our design of the government. He said: That is that 
decisions will only be made in the interest of the people if each 
person carries an equal voice.
  He recognized in using the term ``voice,'' something broader, more 
powerful than just a vote. That is why I said ``voice.''
  What has happened with Citizens United, with respect to the five 
Justices, is that it is OK to have some individuals who have a voice in 
our campaign that is equal to thousands or tens of thousands or even 
100,000 other citizens.
  We didn't have such a way to amplify one's voice--not anything close 
to that amplification when the Founders designed our government. Yes, 
you could put an article in the newspaper. Yes, you could hand out 
pamphlets. But with the growth of radio and television and now the 
internet and all the strategies through social media and internet 
advertising, through all of that, money can amplify one's voice. You 
can have the equivalent of a stadium sound system that drowns out the 
voice of the people. That is the opposite of Jefferson's mother 
principle, Jefferson's principle that we will only be a government that 
pursues the will of the people if each citizen has an equal voice.
  Now, granted, we all know that vision was flawed. Women weren't given 
the vote. Many minorities were excluded. But we have worked overtime 
toward that vision of inclusion, opportunity, and equality, and we have 
come a long way. But in one case, we have gone in the opposite 
direction, and that is the Citizens United concentration of money 
corrupting our elections, undermining the legitimacy of this Chamber 
and undermining the legitimacy of the House Chamber. Instead of being 
elected to do government of, by, and for the people, it is the product 
of an enormous concentration of power by and for the few. You can see 
it in the policies that are pursued.
  Three decades after World War II, we had an economy that worked 
really well for working America. American workers participated in the 
wealth that they were creating, and the result was that families had a 
leap forward.
  My parents have lived under humble circumstances. I had a grandmother 
who at one point had lived in a railroad car. I had a grandfather who 
put all the children into a car and drove from Kansas to Arizona with 
all of the individuals in the family and their possessions in a single 
car, going west, trying to find work and find a future. Those were 
incredibly hard times. Folks were living in shacks.
  Then, after World War II, we had these three decades when we had this 
big leap forward in the standard of living, as workers shared in the 
wealth they were creating.
  From about the time I got out of high school, which was 1974, in the 
middle of that decade--let's call it 1975--and in the next four 
decades, virtually all of the new income in America has gone to the top 
10 percent, which means that 9 out of 10 Americans have been left 
behind in this economy.
  I live in a blue collar community, the same community I have lived in 
since

[[Page 5410]]

third grade. I was there from third grade through graduating from high 
school. I moved back into that community the year my son Jonathan was 
born 20 years ago.
  It is a blue collar community. It has changed over time. It has 
become much more of a diverse community. There are many ethnicities 
from all over the world, and a lot of languages are spoken in the 
school. It is a blue collar, working community.
  Folks there say: My parents were able to buy a house in this 
community, but the only way I am going to own a house in this community 
is to be able to inherit it from my parents because of the 
disappearance of living-wage jobs.
  That is what has been going on in this economy. We provide these 
enormous, enormous tax breaks for the best off in our society.
  Well, there is a concept referred to as the Buffett rule. Warren 
Buffett said: Why should I, a billionaire, be taxed at a lower rate 
than my secretary? Why does my secretary pay a higher rate than I do?
  So every now and then, we have had on the floor of the Senate an 
effort to correct that and say: Hey, a billionaire should pay at least 
the same tax rate as the secretary or the janitor. But we haven't 
corrected it because the vast influence of funds in this Chamber are 
working on behalf of the privileged and the powerful.
  So here we are, trying to figure out why last year we had, for the 
very first time, a majority leader who engineered the theft of a 
Supreme Court seat from the Obama administration to another 
administration. It was the first time in U.S. history. To understand 
2016, you have to understand 2014, when the Koch brothers invested this 
vast sum in all the campaigns so they could control the Senate. You 
have to understand that in January 2015, the Koch brothers sent a 
message that you had better pay attention. You have to understand that 
the Koch brothers' strategy is based on the dark money, third-party 
campaigns that Merrick Garland might possibly have voted against--a 5-
to-4 Citizens United decision that Merrick Garland might have found 5-
to-4 in the other direction. We don't actually know where he stood on 
this.
  He was so square down the middle and so complimented by people on the 
right as well as the left. We don't know how he would have voted on 
that. But in order to ensure that the dark money could continue, in 
order to ensure that decisions would be made by and for the powerful, 
to ensure that the fossil fuel companies could be swept clear of 
regulations that would diminish the amount of fossil fuels they could 
extract out of the ground and sell for combustion, in order to ensure 
the profits of the Koch brothers, that drove this unique case of the 
theft of the Supreme Court seat last year.
  There was that effort to pack the Court by sending that seat to the 
next President in the hopes that it would be a conservative President 
and then to have that nominee say: I will only nominate somebody who 
comes off a list from two conservative groups on the far right--boy. 
That was exactly the vision. It has unfolded exactly as--I guess you 
could say--those in that powerful group wanted it to unfold.
  We have a different responsibility. We don't have a responsibility to 
a ``we the powerful'' vision. We don't have a responsibility to a ``we 
the privileged'' vision. We have a ``we the people'' Constitution.
  We have Jefferson's mother principle that says: We should be in a 
situation, if we want the will of the people to be enacted, in which 
people have an equal voice. There is this third-party, dark money that 
is corrupting America, our fundamental institutions, our election 
institutions. It is corrupting this institution--both sides, the House 
and the Senate. That is why I hope there is a Supreme Court that 
eventually says this is wrong; this is out of sync with our 
constitutional vision.
  The Court said: We think transparency will do the job. They kind of 
assumed that there would be transparency in where the money came from 
and where it went.
  It used to be that colleagues on the right side of this Chamber would 
say: Oh, we love transparency. Transparency will be the sunlight that 
disinfects the potential corruption of campaign donations. We love 
transparency.
  Many of those who opposed McCain-Feingold caps on donations said: We 
love transparency, the sunlight, the disinfectant. Won't that be 
wonderful.
  Then, we had a transparency bill on the floor and said: People have 
to know where every donation comes from so there is not this dark 
money, unidentified money surging through the veins of the American 
campaign system, surging through the arteries. Suddenly they say: Oh, 
wait; we don't like transparency so much because that might hurt the 
prospects for the powerful folks who got us elected.
  So then you have the picture of why this unique circumstance occurred 
and why we are where we are and how much damage it is going to do and 
how it undermines the legitimacy of the Court.
  Merrick Garland's treatment is unprecedented in the history of 
Supreme Court nominations. There was a hastily fabricated pretext that 
we shouldn't do a normal process under our advice and consent 
responsibilities in the final year of a Presidency or the fourth year 
of a Presidency.
  Now, you can read the Constitution from one end to another, but you 
won't find that principle in the Constitution--that suddenly we can 
ignore our responsibility in the fourth year of a Presidency.
  The responsibility to be here in the Senate Chamber doesn't end in a 
fourth year. No other responsibility ends.
  The responsibility of the President to nominate for empty positions 
doesn't end, but that pretext was one which was so quickly concocted. 
The foundation was so quickly destroyed, and it was just revealed for 
the destructive partisan tactic that it was--this Court-packing tactic.
  One colleague said: We have 80 years of precedent of not confirming 
Supreme Court Justices in an election year. That is an exact quote.
  One colleague came to the floor--a colleague, by the way, who ran for 
President--and said: We have 80 years of precedent not confirming a 
Supreme Court Justice in an election year. Wrong. There have been 15 
vacancies in an election year, and 15 times the Senate acted, and in 
most of those cases, it was to confirm the Justice. We could even look 
at the fact that there were some vacancies that occurred before an 
election year and were confirmed in an election year, just like the 
nomination of Anthony Kennedy--who sits on the Supreme Court today--in 
1988.
  To my colleague who said we have 80 years of precedent of not 
confirming a Supreme Court Justice in an election year--that is his 
exact quote--not only is that not true, if you look at history, at 
every single nomination vacancy that occurred in an election year--and 
most were confirmed, but the Senate always acted--it is simply not 
true, if you look at Justice Anthony Kennedy, who sits on the Court a 
few yards from here, who confirmed just a few years ago--in 1988--
within the memory of most Members who serve in this Chamber.
  If you go back just one more election--let me put it differently. 
Until Merrick Garland's nomination last year, we hadn't had an 
election-year vacancy for a sizeable period of time. That is why I am 
going to have these three charts put back up. If we look at these 
charts here in this situation, these are some vacancies that occurred 
in an election year.
  Look at this group here--in 1928, 1860, 1864, and 1956. Well, 1956 
was a good period of time ago. That was about 60 years ago, 61 years 
ago. That is quite a while.
  Let's look at the next chart. Well, vacancies in an election year--
year 1800, year 1872, year 1880. They happened a long time ago.
  How about the last chart of nine. Again we see a lot of 1800s--1804, 
1844, 1852, 1888, 1892, in 1916 twice, and 1932. The point is taken 
that it has been quite a long time since we have had a vacancy in an 
election year.
  So if you concoct a premise within an hour or two of a Supreme Court 
Justice dying and get it wrong--but then there is also a colleague who 
had the time to look up the facts who got it wrong as well.

[[Page 5411]]

  In the 1932 election between Franklin Roosevelt and Herbert Hoover, 
we did have an election of a Supreme Court nominee. Hoover nominated 
Benjamin Cardozo to succeed Oliver Wendell Holmes. On February 24, 9 
days later, the Senate confirmed Cardozo. That was the last time we had 
a Supreme Court seat open up in an election year, except for the 
Eisenhower occasion.
  Why don't we go back to Eisenhower. The seat opened up 1956, an 
election year, and it was the following January that he was confirmed.
  So we can look to the fact that the Senate acted on all 15 of the 15 
election-year vacancies, confirming most of them. Here we see two out 
of the four confirmed, and of these eight before Merrick Garland, we 
see six of the eight confirmed. Then the other group of three were the 
folks where the vacancy occurred after the general election, but the 
Senate still confirmed all three, whether up or down.
  So if you look to history, my colleague who said that we were in a 
situation where we had been in the tradition of not confirming people 
during an election year, 80 years of precedent not confirming a Supreme 
Court Justice in an election year, well, that is a phony, phony, 
incorrect, fallacious--insert your own adjective here--argument because 
in our entire history, every single seat that became vacant in an 
election year was actually done by the Senate before the next President 
took office.
  Three vacancies occurred after the general election. We saw the three 
in this chart here. John Jay in 1800, with the Adams administration, 
was nominated to be Chief Justice on December 18 after Chief Justice 
Oliver Ellsworth retired. Jay was the first Chief Justice but retired 
in 1795 to serve as the second Governor of New York for two terms. 
After that, Jay's nomination was confirmed in the Senate, and he ended 
up declining the position and retiring from public life instead.
  For those of you who are thinking about political trivia, who was the 
election-year nominee confirmed by the Senate? The vacancy occurred 
late in December. He was confirmed 3 days later and declined it. Now 
you know the answer. It is the nominee John Jay, who had served as 
Governor of New York for two terms.
  Adams was more successful when his second choice, John C. Marshall, 
was confirmed on January 27. That confirmation happened after the term.
  In 1872 Ward Hunt was nominated by Ulysses Grant a month after easily 
winning reelection, on December 3, 1872, to replace the retiring 
Justice Samuel Nelson. Hunt was confirmed by the Senate 8 days after 
being nominated.
  William Woods was nominated by Rutherford Hayes in 1880. He was 
nominated to replace William Strong, who was stepping down while still 
in good health at the age of 72. That set an example for several infirm 
colleagues who refused to do the same. I hope his influence was 
substantial because that is one of the challenges of having a lifetime 
appointment--sometimes the Justices stay in office beyond their ability 
to exercise clear reasoning. It is a good example that William Strong 
set.
  As a member of the U.S. circuit court, Justice Woods was easily 
confirmed by the Senate 39 to 8 on December 21, 1880. He was the first 
person to be named to the Supreme Court from a former Confederate 
State. So there is another little bit of Supreme Court trivia.
  There were four vacancies that occurred before the general election 
but the nomination didn't occur until afterward. Why did Presidents 
delay until afterward? This probably is a different story in each case.
  We see basically a four-month delay with J.Q. Adams. We see it 
delayed another 9 months with President Buchanan. There was a delay of 
a couple months by Lincoln and 3 months by Eisenhower. One reason might 
have been to clear from the heat of the election season. That would be 
interesting because that is essentially what Biden referred to when he 
said if a vacancy occurred in the heat of the election season in the 
summer, we should perhaps wait to act on it until after the election 
season is over, until after the election.
  John Crittenden was nominated in 1828 by John Quincy Adams. In 1828, 
a month after losing his bid for reelection, President Adams nominated 
Mr. Crittenden to replace Justice Robert Trimble, who had died in 
August from malignant bilious fever. On February 12, the Senate voted 
to table his nomination, but they acted. They acted in their advice and 
consent role, unlike what happened last year. Although President Adams' 
nominee was not confirmed, he did receive a fair shot when the Senate 
voted on his nomination on the Senate floor.
  Jeremiah Black was nominated in 1961 by President Buchanan. On 
February 5, 1861, President Buchanan nominated his Secretary of State, 
Jeremiah Black, to fill the seat of Justice Peter Daniel, who had 
passed away at the end of May. On February 21, 16 days later, the 
Senate rejected Mr. Black's nomination, and they rejected it by a 
single vote. They did so not by tabling the nomination but by rejecting 
the motion to proceed to the nomination.
  There has been a change in Senate rules in regard to that motion to 
proceed to a nomination. But again, even though his nomination was 
rejected by a single vote, Jeremiah Black still received the treatment 
of the Senate. The Senate acted. They considered and they acted.
  Salmon Chase in the Lincoln administration, 1864. Chief Justice Roger 
Taney passed away October 12, 1864, and 2 months later, on December 6, 
1864, after winning his reelection in a landslide, President Lincoln 
nominated his Treasury Secretary, Salmon Chase, to fill Chief Justice 
Taney's seat. Well, in this case, on the same day he was nominated, 
December 6, 1864, the Senate confirmed him and confirmed him by a voice 
vote. Well, I don't think we are going to see another Senate or another 
Supreme Court nominee confirmed by a voice vote for a very long time to 
come.
  William Brennan, Jr., was nominated by President Eisenhower in 1956. 
On October 15, just 2 weeks before the general election, Justice 
Sherman Minton stepped down because of his declining health. On that 
very same day, Eisenhower named William Brennan, Jr., as his nominee. 
Then on January 14, the recently reelected Eisenhower officially 
nominated Justice Brennan to the Supreme Court. First he was nominated 
as a recess appointment--another interesting piece of Supreme Court 
trivia--but then in January he was renominated as a regular nominee to 
be considered by the Senate. The Senate was back in session, and his 
nomination--that is, the President's nomination--did face opposition 
from the national news. They were worried that, as a Catholic, he might 
rely more on religious beliefs than on the Constitution. That is an 
interesting conversation that is hard for us to identify with today.
  Justice Brennan was opposed by Senator Joseph McCarthy because he 
made a speech decrying the overzealous Communist investigations as 
``witch hunts.'' But on March 1957, Justice Brennan was confirmed by 
the Senate almost unanimously. The only ``no'' vote was Senator 
McCarthy.
  Let's take another look at those vacancies that occurred before the 
general election where the nomination also occurred before the general 
election.
  We have William Johnson in 1804, who was nominated by President 
Jefferson. On January 26, Justice Alfred Moore had stepped down because 
of declining health, and 2 months later, President Jefferson nominated 
William Johnson. Two days after that nomination, he was confirmed to 
the Senate by a voice vote.
  Then we turn to a couple of nominations the Senate considered, but 
they rejected them through votes to table the nomination. President 
Tyler nominated Edward King in 1844. Justice Henry Baldwin passed away 
on April 21, and on June 5, President Tyler nominated Edward King to 
fill the seat. But the Senate did deliberate on that nomination and 
decided to reject it. They tabled it. Later that year, Tyler 
renominated King to fill the vacancy,

[[Page 5412]]

but the Senate again voted to table the nomination. They said: What was 
said before still goes.
  Mr. King did not make it to the Supreme Court, but he did have the 
opportunity to present his case and have the Senate act on his 
nomination, not once but twice.
  In 1852 Edward Bradford was nominated by the Fillmore administration. 
Edward Bradford was nominated on August 16, about a month after Justice 
John McKinley passed away. He too had his nomination tabled by Members 
of the Senate--by the full Senate--voting and saying no, but they did 
act. They did vote--Melville Fuller under Cleveland. Now we get into a 
whole series in which the Senate said yes, not only in reacting but in 
``we think you are qualified to serve on the Court.'' They made it not 
just from the advice stage but to the consent stage.
  (Mr. SCOTT assumed the chair.)
  Justice Morrison Waite passed away in March of 1888, and President 
Grover Cleveland nominated Melville Fuller to fill the vacancy on April 
30. Over the course of his nomination, Fuller faced opposition because 
he had avoided military service during the Civil War, and he had tried 
to block wartime legislation as a member of the Illinois House of 
Representatives.
  Those were the flaws that the Senate found as they vetted his 
nomination. He did not receive every vote in the Senate, but the Senate 
did act. The Senate voted, and they voted 41 to 20, by a 2-to-1 margin. 
The Senate looked at his record and said: Yes, it has flaws, but on 
balance, it is qualified and appropriate. And they confirmed him.
  President Harrison nominated George Shiras in 1892. Earlier in the 
year, in January, Justice Joseph Bradley had died, but it was not until 
July 19 that Harrison nominated George Shiras to fill that seat, which 
was still before the election. In spite of the 6-month period between 
the vacancy and the nomination, Shiras was confirmed, yet again, by a 
voice vote in the Senate one week after being nominated.
  Now we turn to the 20th century, the 1900s. President Wilson 
nominated Brandeis. This seat was open because, in January, Justice 
Joseph Lamar had died. Because Brandeis' nomination was bitterly 
contested, it became the first time in American history that the Senate 
Judiciary Committee had held a public nomination hearing. Today, we 
think of the fact that nominations have always gone to the Judiciary 
Committee when, in fact, the Senate used to serve as a Committee of the 
Whole. The nomination came to the floor and was considered by the 
entire Senate--debated by the entire Senate--without there being a 
previous committee action, committee hearing. Brandeis was the first 
for whom the Judiciary Committee held a hearing. He was denounced by a 
number of folks because they argued that he was unfit to serve. There 
was, by many people's estimations, a heavy dose of anti-Semitism at 
work. Despite that, Justice Brandeis was confirmed by the Senate by a 
vote of 47 to 22.
  Then we turn to John Clark--also in 1916. Justice Charles Hughes had 
resigned from the Court in June of that year in order to run for 
President against the sitting President, Woodrow Wilson. He is the only 
Supreme Court Justice ever to resign from the Court and run against a 
sitting President. In fact, as far as I know, he is, perhaps, the only 
one to resign from the Court and run for President at all. A month 
later, on July 14, Wilson nominated John Clark to fill the open seat. 
On July 24, 10 days later, the Senate confirmed him.
  This brings us to Benjamin Cardozo in 1932. Benjamin, prior to 
Scalia's dying, was the last of this group of nominees who had the 
vacancy occur before the election and the nomination occur before the 
election. Benjamin Cardozo was nominated on February 15 by President 
Herbert Hoover to replace retiring Justice Oliver Wendell Holmes. 
Because he was a Democrat who was appointed by a Republican President, 
his nomination is considered to be one of the few Supreme Court 
appointments in which one could find no trace of partisanship. On 
February 24, 9 days after the nomination, Justice Cardozo received a 
unanimous voice vote by the Senate.
  So there are the 15 times that there has been a vacancy in an 
election year, and in all 15 times, there was action by the Senate 
until last year. That brings us to 2016 when the vacancy occurred, the 
nomination was made, and the Senate chose not to act.
  We certainly have entered new territory with this decision to amp up 
partisan tactics to pack the Court by stealing a Supreme Court seat. No 
one in this Chamber should be comfortable with that. For any of my 
colleagues who are feeling comfortable with it, just pause for a moment 
and ask yourself: Would you feel comfortable if the parties were 
reversed? If this were a Democratic majority stealing a Supreme Court 
seat from a Republican President, I ask you: Would you feel comfortable 
if the tables were reversed?
  I think, probably, every Member on the Republican side of the aisle 
would say it would be outrageous if the Democratic majority stole a 
seat--a tactic never before used in our history--to deliver it to a 
future Democratic President. That would be unacceptable. That is the 
ability to walk in someone else's shoes and to look at an issue from 
the viewpoint of our obligation to the institution rather than from 
simply advancing the desires of the short-term political rewards, if 
you will.
  For 293 days, no action was taken on the nomination. It was a 
complete break with Senate tradition, with Senate precedent, with U.S. 
history. There were 16 nominations to fill a Supreme Court seat that 
became vacant in an election year, and only one seat was stolen--the 
seat that opened up when Antonin Scalia died and Merrick Garland was 
nominated.
  Among the hastily crafted pretexts for stealing this seat--and I 
mentioned this earlier, but I will mention it again--some raised the 
so-called ``Biden rule.'' There is no such rule in our rules, and there 
is no such speech that presented a rule. There was a speech in which 
Vice President Biden said that if there is an open seat, the Senate 
might be wise in an election year not to consider it in the heat of the 
election. That is simply a statement of respect for the Senate's 
ability to be the cooling saucer, to have thoughtful dialogue that 
maybe could not take place in the final months of a Presidential 
campaign.
  I think most of us would say, if we had a nomination and we were 
coming together in September or October of an election year to consider 
it, maybe it would be better to wait until after the election in 
November to be able to have that thoughtful dialogue then. That is 
really merited by the importance of a Supreme Court vacancy and 
nomination.
  Virtually everyone here would agree with the comment that Senator 
Biden made, but recognize this: His comment was in the abstract. There 
was no open seat. His comment was in the context of a speech in which 
he went on to say shortly thereafter, with regard to his theoretical 
situation in which he would consult with both sides of the aisle, if 
the President were to nominate somebody in the mainstream, he would 
probably win his vote, which was conveniently left out by my colleagues 
who referred to this.
  The idea that we try to depoliticize and thoughtfully consider, which 
was the gist of Biden's comment, is one we should all respect. If you 
have to go back to a comment that was made in a speech many, many years 
ago by one Senator in order to justify the stealing of a Supreme Court 
seat and if you ignore history, ignore precedent, and ignore the 
Constitution in order to do so, you really know that your argument is 
not just on shaky ground, but it has no grounds.
  I will read a little bit of what this was all about. These are the 
remarks I have that were given back then.
  It begins:

       Given the unusual rancor that prevailed in the (Clarence) 
     Thomas nomination, the need for some serious reevaluation of 
     the nomination and confirmation process and the overall level 
     of bitterness that sadly affects our

[[Page 5413]]

     political system and this Presidential campaign already, it 
     is my view that the prospects for anything but conflagration 
     with respect to a Supreme Court nomination are remote.
       In my view, politics have played far too large a role in 
     the Reagan-Bush nominations to date. One can only imagine 
     that role become overarching if choices were made this year, 
     assuming a Justice announced tomorrow that he or she was 
     stepping down.
       Should a Justice resign this summer . . . actions that will 
     occur just days before the Democratic Presidential Convention 
     and weeks before the Republican Convention, it is a process 
     already in doubt in the minds of many and would be become 
     distrusted by all. Senate consideration of a nominee under 
     these circumstances is not fair to the president, to the 
     nominee, or to the Senate, itself.

  There it is. Depoliticize the debate that we are to have. Move that 
debate outside of the context of the heat of a campaign.
  He went on to say:

       President Bush should consider following the practice of 
     [some] predecessors and not . . . name a nominee until after 
     the November election is completed.

  Get the nominee out of the heat of the political campaign. That was 
actually something that we saw in a couple of these nominees. These are 
cases in which the vacancies occurred before the elections, and the 
Presidents waited until after the elections to name the nominees. That 
is the essence of what Biden was referring to: Get the nomination out 
of the heat of the campaign.
  I do think that you have such an imbalance in this argument to anyone 
who opens his eyes to the conversation. You have, on the one side, our 
history of 15 vacancies during an election year, when the Senate acted 
on all 15 before Antonin Scalia died. On that same side of the scale, 
you have our constitutional responsibility to provide advice and 
consent. On the other side of the scale, you have a comment by former 
Senator Biden, then Vice President Biden, who was saying, actually, 
take a nomination out of the heat of political passion for it to be 
considered, which is completely consistent with our history.
  It is the Constitution and our history versus an out-of-context 
comment made by a former Senator, in a theoretical situation, but he 
actually did not say what folks said he said. It is clear where the 
weight of this argument lies. That is what makes it such a transparent 
transgression against our Constitution, a transparent transgression 
against the integrity of the Senate because the majority leader asked 
the Senators not to do their constitutional responsibility to provide 
advice and consent, a transgression against the Supreme Court because 
we now have a stolen seat and a precedent that will haunt the 
legitimacy of the Supreme Court for decades to come should we proceed 
down this route, should we continue with this conversation, should we 
have a vote, and should we--and I so hope we do not conclude with this 
theft being fully accomplished this week. It is such significant damage 
to everything--our institutions, the credibility of the Court, our 
responsibilities.
  Well, some have said: Why filibuster? Every time I say ``filibuster'' 
it gets very confusing because it is hard for people to think--what 
does ``filibuster'' mean? Is it speaking at length? Well, yes, it is. 
In some historical context, speaking at length has delayed action. It 
was the set of speeches when Woodrow Wilson wanted to arm commercial 
ships before World War I that prevented the Senate from acting to 
approve that. Those speeches were around the clock.
  By the way, the term ``filibuster,'' where does it come from? What 
does it mean? Well, it is, I guess, an evolution of the word 
``freebooter.'' A freebooter was a pirate, so I guess you could say 
piracy. The folks who spoke at length to stop consideration of putting 
arms on our commercial ships took over the Senate and didn't let it 
act. But that is one way to view it.
  Another way of viewing it is that we had the courtesy of hearing 
everyone in the original Senate. The Senate got rid of the direct 
motion to close debate because they didn't need it, because they wanted 
to hear from everyone. It is a tradition of letting everyone be heard 
and protecting that tradition.
  So now that we have restored this motion to close debate, where the 
Senate rules require a supermajority, they were basically saying most 
of the time we are going to hear everybody out. It will take the large 
bulk of the Senators to close debate. That was used in a very few 
circumstances--almost never on a motion to proceed, almost never on an 
amendment, and rarely on final passage of a bill because it was 
considered that the Senate needs to act. It is a legislative body. On 
the other hand, we don't want to have this place be paralyzed.
  To use the analogy of George Washington's cooling saucer, he said the 
Senate should be a cooling saucer, not a deep freeze. But too often, 
the abuse has resulted in the Senate being unable and paralyzed to act.
  So here we stand with this concept that it is hard to put your hands 
around, and many of us are saying we should not close the debate on 
this nominee, if such a debate--if such a vote is held on Thursday, we 
should vote against closing debate. In the modern Senate rules, that is 
what a filibuster is; you are voting against closing debate. It comes 
down to this: 60 Senators have to be supportive for someone to be on 
the Supreme Court. That is to protect the integrity of the Court so 
that you don't have nominees from the extreme edges. The President, 
knowing that the Senate might not have 60 votes for someone from 
extremes, is thereby encouraged to produce a nominee that is someone 
from the mainstream. That is the power of the supermajority. And having 
people from the mainstream of judicial thought sustains the integrity 
of the Court in the eyes of the citizens. That is why many of us 
believe that we should vote against closing debate.
  If we close debate on Thursday--and let me repeat again that this is 
the first time in U.S. history that the majority leader has filed a 
petition to close debate on the very first day of debate, the first 
time another of this stream of incredibly partisan tactics designed to 
pack the Court--the first time in U.S. history.
  It takes two days before the vote can actually be held. The majority 
leader announced to file the petition earlier today, and the vote 
cannot be held until Thursday. When that vote is held, there will be at 
least 41 Senators who say we should not close debate. In other words, 
there will not be a supermajority of 60 necessary to close debate. That 
is what I am predicting. That is what my crystal ball says.
  Why do I believe that there will not be 60 Senators to vote to close 
debate? Well, I will tell you now that I can say that is very likely 
because at least 41 Senators have announced that they will vote against 
cloture. They have made their announcements.
  Turn the clock back to when I first stood up and said: This seat is 
stolen, and we should not vote to close debate. We must filibuster, 
which means the same thing under the rules of the Senate. I said this 
in order to stop the theft of Supreme Court seat-stealing. If this 
theft is successful, it will damage the Court forever, and it will 
result in not just the integrity of the Court being damaged, but the 
different decisions--a different set of decisions because, while we 
don't know exactly how Merrick Garland and Neil Gorsuch would vote on 
any individual case, we know from their records that one is straight 
down the middle and the other is on the very, very far right from a 
list vetted by two rightwing Republican organizations.
  So we can ask: Did the President ask the nominee how they would vote 
on this case or that case?
  Take, for example, the right of a woman to reproductive health that 
she feels is correct, keeping the politicians out of the exam room. 
Well, what we know is that the nominee before us at this moment came 
through a process of rightwing vetting through two organizations before 
being put on a list that was sent to the President. So we have a pretty 
good idea of how the nominee is going to vote on this issue.
  The nominee wouldn't answer any questions before the Judiciary 
Committee. It was pretty much what you would call a farce: a question 
asked, a question not answered; a question

[[Page 5414]]

asked, a question not answered; a question asked, a question not 
answered.
  A number of my colleagues went into that Judiciary Committee hearing 
feeling they were really open to hearing the judicial thought and 
seeing if this nominee was really as far off the charts as everything 
else indicated. And the fact that he refused to answer a question over 
a week of hearings basically said to them, yes, now we know; now we 
know the answer.
  So it is to protect the integrity of the Court that we must not close 
this debate on Thursday. That is why we want to insist on keeping the 
60-vote standard. That is why the 60-vote standard exists.
  There are some who have said: Hey, maybe we should try to figure out 
a way that we can preserve the 60-vote standard by not really using it 
as a tool for this particular nominee, and by not making it an issue, 
we have a tool for their future. It is kind of like coming into a 
confrontation and a person has a confrontation and they pull out their 
swords, and then say: I am going to lay down this sword and let you 
have your way until next time because that way I will still have my 
sword when I come back again. So you come back again next time: Oh, I 
have to lay down my sword again.
  What are they confronting? Why are they saying we should perhaps 
consider not honoring the tradition of utilizing the 60 votes when 
there is a cloud over a nominee--not utilize the filibuster? There is 
this goal of saying: Well, that way maybe we keep the rule as it is. 
And why are they worried about that? Because the majority has said that 
they will consider changing the rule.
  Well, many of us have a message for the majority--a message based on 
the way the Senate has acted over hundreds of years. If you don't have 
the votes, change the nominee, not the rule. That is the way it has 
been done time after time after time. On those 15 occasions when there 
was an open seat prior to Antonin Scalia passing away, the Senate 
didn't approve every nominee; they rejected several of them, but they 
considered every single one. And when they were rejected, they didn't 
change the rule; the President changed the nominee. That is what should 
happen in this case.
  Some have said: Well, we have seen such disrespect for the 
Constitution. We have seen the urging of the majority leadership to not 
exercise our advice and consent responsibility under the Senate last 
year, and they made it happen. They enforced it. We have seen the 
first-ever filing of a cloture petition to close debate on a Supreme 
Court nominee on the first day of a Senate debate; it has never 
happened before, to ram this through in a way never seen before in U.S. 
history. And is it too much to imagine that the Senate majority would 
also, instead of following Senate tradition when a nominee doesn't have 
the votes and telling the President to change the nominee, would 
instead change the rules? Yes, it is possible, when you look at that. 
But that is a decision that we can't control on our side.
  When we looked at the tremendous obstruction that was being used for 
executive nominations and lower court nominations, we had to find a way 
to quit having advice and consent being used as a tool of legislative 
destruction against the other branches of government.
  Our whole Constitution was founded on three coequal branches of 
government, but you can't have three coequal branches if one branch 
wields a tool--a tool that was intended to be used very rarely--of 
rejecting nominees when nominees weren't suitable, using it as a 
wholesale power to destroy the executive branch and undermine the 
judiciary. So we addressed that in 2013, but we left in place the 
supermajority for the Supreme Court. In some ways, you can think of the 
fact that, well, we tolerate a wide range of positions coming out of 
the lower courts. There is a check and balance there. It is called the 
Supreme Court. But there is no check to the Supreme Court. They are the 
final decision maker. That is why you leave in place the supermajority 
requirement to tell a President: Do not nominate from the extremes.
  We have a President who likes to, well, I would say run counter to 
tradition. So that is maybe part of the appeal and why he is in the 
office. He looked at the power of the Senate, and we don't know if he 
even actually understood any of the background as to why we had a 
supermajority to close debate, why we had a 60-vote requirement. He 
said that he didn't care; he was going to nominate from the extreme 
anyway. And having nominated from the extreme, now the same groups that 
want extreme rulings for the powerful and the privileged are pushing 
tremendously hard, just as they did last year, for the majority to 
steal the seat in the first place.
  But aren't we 100 individuals who could possibly set aside those 
tremendous pressures from those powerful dark-money interests and 
actually do the right thing for the Constitution and the Senate and the 
Supreme Court? Don't we have the ability, the soul, the insight to 
defend this institution at this moment? What everyone here must 
understand is that when people look back--if the decision this week is 
to destroy the 60-vote requirement that tempers the nominations to the 
final decider about what our Constitution needs--this is stripping away 
a key element in protecting the integrity of the Court, and it will be 
looked on as a very, very dark moment in which the Senate failed in its 
responsibility.
  Let us not fail. Let's have some Senators who will remember that they 
stood up on that podium and they took an oath of office, and that had 
to do with advice and consent which was violated last year. Embedded in 
that was the responsibility to protect this institution and the rest of 
the other two branches of government, so they could function in a way 
our Founders intended them to.
  I know that come Thursday, if there is a motion to change the 
interpretation of the rule--the way this works is that the majority 
won't actually change the rule. They will change the interpretation of 
the rule. For all practical purposes, it is basically the same thing. 
At that moment, we are going to be put to the test.
  The reason it is called the nuclear option is because changing a 
rule--a basic function of the Senate, designed to protect the integrity 
of the Supreme Court--and undermining and damaging the integrity is 
like blowing up the institution. That is why it is nuclear. It is the 
big bomb. It is the most destructive weapon known in the legislative 
arsenal.
  There will be some Members, I know, who will hesitate, some from the 
viewpoint that they have a responsibility to protect the institution. 
There will be others who will hesitate from political expediency. They 
will say: Yes, this is a pretty good deal to get the justice in place 
that our backers want. But on the other hand, the shoe might be on the 
other foot in 4 years. There may be a Democratic President, and maybe 
that President gets three nominations. If we blow up this rule, there 
will be nothing to temper the type of appointment made by that future 
President. That is something I am sure people will consider.
  Apart from the out-of-context, standing-on-its-head example from Vice 
President Biden's speech, the other argument was: Well, let's let the 
American citizens decide. That was the second excuse for stealing the 
seat. Well, the people did speak. They spoke when they elected Barack 
Obama in the first election, and they spoke again when they elected him 
for the second election. They didn't elect him to serve 3 years out of 
4, but to serve 4 years out of 4. They didn't elect him to execute his 
constitutional responsibilities 3 years out of 4. They elected him to 
serve his responsibilities, including nomination responsibilities, for 
4 out of 4. He won that second term by a margin of over 5 million 
votes. That is a big margin. President Trump lost the citizens' vote by 
a margin of over 3 million votes. That is a pretty big disparity. It is 
an 8 million vote disparity between Obama's victory and Trump's loss of 
the citizen vote. So if we want to have the people have a voice, they 
have weighed clearly and President Obama considered his nominee. As to

[[Page 5415]]

the fact that they wanted the people to weigh in, they weighed in and 
said they trusted Hillary Clinton more than Donald Trump to execute the 
responsibilities of office. That is the citizen vote by more than 3 
million.
  When the President campaigned, he said: I am going to drain the 
swamp, I am going to take on Wall Street, and I am going to help out 
workers. We have seen quite the opposite. The very first action he 
made--the very first action--was to make it $500 a year more expensive 
for families of modest means to buy a house. How does that possibly fit 
with fighting for working Americans? How does that possibly fit with 
that?
  Then he put forward a plan on healthcare--TrumpCare--in partnership 
with Ryan. Ryan wants it to be called TrumpCare; Trump wants it to be 
called RyanCare. Neither one wants their name on it because it takes 
away healthcare from 24 million Americans. It makes healthcare out of 
reach for working Americans. That certainly wasn't fighting for working 
Americans, stripping healthcare. It is, basically, a weapon that hurts 
in two ways: If you don't have access to healthcare, you are worried 
that your loved one won't get the care they need. Then you are worried 
that if you do find access by basically paying much higher rates than 
anyone with insurance has, you will be bankrupt, and America had this 
vast number of bankruptcies.
  So Trump, who campaigned on helping workers, said: I am going to 
strip away your healthcare. I am going to take away your peace of mind 
that your loved one will get care. We are going to return to a world 
where, if you do find care, you will be bankrupt. How do you like that 
plate of potatoes? Working America didn't like it. They called Capitol 
Hill and said: Stop this diabolical plan to undermine healthcare. Stop 
this plan. They said it on phone calls, they said it on emails, they 
said it at the townhalls, and the House abandoned the plan due to the 
outcry of workers across America who had finally--finally--found access 
to healthcare, thanks to the Affordable Care Act.
  Then President Trump sends his anti-worker budget--what they called 
the skinny budget, the outline of the budget--over here to Capitol 
Hill. I was out doing townhalls in rural Oregon, and I think I got much 
the same reaction that probably everyone else did across the Nation. 
This wasn't America first. This was rural America last, including rural 
workers--especially rural workers.
  The President campaigned for workers. He makes buying a home more 
expensive. He tries to strip away their healthcare, and, then, he hits 
them with a budget in rural America that will devastate their 
communities. You have a challenge with affordable housing? I am going 
to take away a good share of the housing grants used as a flexible 
tool. You have other challenges in your community that you use 
community development block grants for. We are going to strip those as 
well.
  Your rural county has a lot of Federal land? This is probably more 
true in the West, where I come from, than in many other States. Your 
rural county has a lot of Federal land so you are compensated through 
Payment in Lieu of Taxes, the PILT Program? I am going to devastate 
that program.
  Your rural community has essential air service? Well, we don't need 
that. Let's take that away. We don't need air service in rural America.
  It made me think about the airport in Klamath Falls, in my home 
State. Klamath Falls is not on an interstate. I-5 goes down through 
Medford and goes through Ashland. So it travels further west, on into 
California, not through Klamath Falls.
  We have some very substantial manufacturing capability in Klamath 
Falls. We have an F-15 base. Both of those are essential to the 
community. But to keep that manufacturing there, to keep those 
companies there, to keep that airbase there, we have to have a 
functioning airport. The company that was servicing that town stopped, 
moved their assets somewhere else, and left that town stranded.
  I immediately called the mayor and called the House Member 
representing that district and said: We have to get air service back. 
The managers of the manufacturing capability in doors and windows are 
not going to want to have their operation in a place they can't fly 
into. Flying into Medford and driving a dangerous, winding mountain 
road for well over an hour--often impassable or very dangerous in 
winter--is not going to cut it. We have to restore that air service. We 
went to work and we teamed up. We teamed up with colleagues across the 
aisle. Why did we undertake this? Because air service was essential to 
that economy. So here is President Trump, sending a ``rural America 
last'' budget which devastates rural air.
  Let's talk about the Coast Guard. Oregon is a coastal State. My 
colleague presiding is from a coastal State. Our Coast Guard is pretty 
important to our States. But President Trump said: Let's savage the 
Coast Guard. Here is the thing. The Coast Guard actually stops a lot of 
bad things from happening along our coastlines. They save lives, and 
they stop drug traffickers. Ere is Trump's anti-worker budget: Let's 
take away the wall along the ocean--the Coast Guard--which stops drugs 
and other bad things from happening, and rescues people, and spend it 
on a wall on the southern border. What? I thought, Mr. President, you 
said the wall on the southern border was going to be paid for by some 
other country--that country on the southern side of the border, not the 
American taxpayers. You are going to essentially take away that virtual 
wall of defense along our coastlines in order to build this wall on the 
southern border?
  I went down on a congressional delegation to meet with Mexican 
officials in Mexico City. We met with the Attorney General. We met with 
the head of their economic policy. We met with a whole group of Mexican 
senators, and we heard a lot. But what I found even more interesting 
was going to the border on the American side and talking to the 
American experts on the border. We asked them: How do drugs come across 
the border?
  They said: Well, they come through freight. There is so much freight 
moving. You can tuck drugs into a freight truck. We find some of them 
but not most of them.
  They said: Second of all, it comes across in tunnels. The tunnels are 
very expensive to build. They are often very long, well-engineered, and 
very expensive. You don't use them for people because they would be 
easily detected then and shut down and you would lose your investment. 
You use them to bring drugs into the country.
  The point the border experts made is that the wall will be useless 
against stopping drugs from coming into our country because the drugs 
come through freight and they come through tunnels, but they don't come 
through backpacks. OK. That was interesting for the President to argue 
that was something he was going to address, to stop this massive inflow 
of people coming from Mexico to the United States. We looked at 
statistics, and it turns out that over the last 8 years, the net flow 
has been out of our country to Mexico, not into our country from 
Mexico--by a million people.
  So that is really a situation where you have the triple threat 
against workers that President Trump is applying--making home ownership 
more expensive, proceeding to take healthcare away from millions of 
American families, and putting forward a budget that savages rural 
America in method after method after method. I am sure my colleagues 
will work on both sides of the aisle to stop the savaging of rural 
America, but clearly that is the President's vision. That was the 
worker part.
  Then you had the ``I am going to take on Wall Street'' part. What did 
he do? He put the economy under the control of Wall Street. He had 
attacked a colleague here in the Senate from Texas during the primary 
campaign for his ties to Goldman Sachs. He attacked his general 
election opponent, Hillary Clinton, for ties to Goldman Sachs. Then he 
puts Goldman Sachs in charge of our economy, Treasury Secretary, 
strategic adviser. The list goes on and on. So much for taking on Wall 
Street.

[[Page 5416]]

  Then there is the ``drain the swamp'' proposition. Well, big, 
powerful, fabulously rich folks deeply connected to those interests--
that is the Cabinet. So you have Big Oil and big banks and 
billionaires. That is the Cabinet. That is the swamp Cabinet.
  So all three promises the President made, after he lost by 3 million 
votes, he has gone on to devastate over the last few months. That is 
the foundation for saying ``Let the people speak''? The people spoke 
against--they voted majority against this President. They voted vastly 
for the election of Barack Obama, and the vacancy occurred on Obama's 
watch. This is a seat stolen from one Presidency and shipped to another 
with the packing the Court and a flimsy excuse from a quote from Biden 
taken out of context, a flimsy excuse of ``Let the people speak.'' When 
the people spoke, they supported President Obama by this vast number of 
popular vote. And Trump lost. So I guess the people did speak, but they 
spoke to the opposite side. So much for the foundation for this crime 
against our Constitution.
  Speaking of the President, it is unacceptable that we are considering 
this nomination at this moment. At this moment, when the Trump campaign 
is under investigation--an investigation being conducted by the FBI, 
another investigation by the House Intelligence Committee, and another 
investigation by the Senate Intelligence Committee--it is unacceptable 
that we are considering this nomination at this moment when there is a 
cloud over the Presidency because of the conduct during the campaign.
  We know some things, and we don't know others. We know that Russia 
sought to influence the U.S. election. We know they used an 
extraordinarily intense, carefully crafted strategy to influence the 
American election. What we don't know is the full extent of the 
conversations between the Trump campaign and the Russians who sought to 
get Trump elected. We don't know that. That is why we are having 
investigations.
  If those investigations find that there was collaboration between the 
Trump campaign and the Russian Government, that is traitorous conduct--
conspiring with an enemy to attack the institution at the foundation of 
our democratic republic, our elections. That is a very big deal, and 
that is why this debate should not be here on the Senate floor until 
that issue is fully addressed. We should not have the sitting 
President's nominee debated with the potential of being put on the 
Supreme Court when many questions remain about whether they conspired 
with a foreign government to undermine and tip the election we held in 
November.
  Then there is the fact that the nominee is an extreme far-right 
nominee, even further right than Justice Scalia or Justice Thomas.
  Analyzing the opinions of the Tenth Circuit since Judge Gorsuch 
joined in 2006, the Washington Post found that Gorsuch's actual voting 
behavior suggests that he is to the right of both Alito and Thomas, and 
by a substantial margin. The magnitude of the gap between Gorsuch and 
Thomas is roughly the same as the gap between Justice Sotomayor and 
Justice Kennedy during the same time. In fact, our results suggest that 
Gorsuch and Justice Scalia would be as far apart as Justices Breyer and 
Chief Justice Roberts.
  Gorsuch has advocated far-right conservative positions--not ``we the 
people'' positions, ``we the powerful'' over the people positions--
positions even Scalia has opposed.
  This nomination matters. Are we going to have decisions that reflect 
our Constitution, ``we the people'' decisions, or decisions that turn 
our Constitution on its head and create a government of, by, and for 
the powerful? We have a 4-4 split--the analysis of decisions to concede 
the twin peaks. Decades ago, we would have probably seen a single bell 
curve, not twin peaks, but what used to be here has migrated. Half of 
the Court migrated over there, as the Court has gotten further and 
further away from the fundamental vision of the five-vote majority. The 
Court now, without Scalia, is split 4 to 4, so this nominee will change 
the balance of the Court.
  There is certainly an opportunity to put in somebody who is straight 
down the middle. We didn't really know exactly where Justice Merrick 
Garland would end up, and by all counts, it was anticipated he would be 
right down the middle. We know something different about Neil Gorsuch. 
The Court is split 4 to 4 now, and this nomination will change that 
balance. That is a very important reason that accentuates why this 
nomination should be set aside until we know if the President's team 
conspired with the Russians. We should clear up that cloud first.
  I am going to go back and review some of the cases that give us 
substantial concern. I am going to try to locate more details. 
Meanwhile, I will just share a little bit about the record of 5-to-4 
decisions.
  Senator Whitehouse has proceeded to do an analysis--or shared an 
analysis done by others--to look at 5-to-4 decisions of the Court and 
what has happened in recent memory. Were those decisions designed to 
accentuate the ability of powerful special interests that changed the 
makeup of the body? Was it that sort of interference? Was it 
interference that favored corporations or decisions that favored 
corporations over people? If I can get the details, I will go through 
it in detail.
  What this analysis found was that the previous decisions of the Court 
with Scalia on it made campaign finance decisions and other decisions 
related to things like the Voting Rights Act that made it harder to 
have the elections that really reflected the voice of the people.
  Let me give some context. The Voting Rights Act was passed in 1965. 
It was passed because different groups around America were messing with 
the elections to try to keep people from voting. There were elements of 
this that went way back in our history. There were tests that were 
applied, constitutional tests. African Americans might try to seek to 
register to vote and would be given a test that was an impossible 
question to answer. The same test would be given to White voters. There 
were all sorts of strategies to try to bias the election process.
  So it was a big deal in 1965, and the Senate and the House said: No, 
we are not going to allow these types of tactics to be developed and 
utilized because they are an attack on the rights of Americans--the 
fundamental right to vote, to have a voice, and to help direct the 
direction of our country by campaigning and voting for those who have a 
better vision of where we are going to go.
  So Congress acted and did so by saying: If you have new strategies 
for how you are going to control the elections, you are going to have 
to get those strategies preapproved because the record in your 
particular State has been that you abused those strategies to suppress 
the fundamental right of individuals to vote.
  So one of those decisions was to say by a 5-to-4 decision: We are 
going to take away the power of the Voting Rights Act--which is almost 
unexplainable. The argument was more or less a version of, we don't 
need this anymore. We moved past that. We don't have the same problem. 
So we should have the same rules for all the States.
  But what we immediately saw with the lifting of the Voting Rights Act 
was that those States that were under the Voting Rights Act immediately 
started working to do voter-suppression tactics--efforts to prevent 
individuals from voting in all kinds of ways--phony ID strategies, all 
sorts of manipulation of the precincts.
  (Mr. CRAPO assumed the Chair.)
  So it matters. The fifth seat on the Court matters a great deal. We 
have six decisions that have flooded the elections with special 
interest money and affected access to the ballot. In these 5-to-4 
decisions, the people have lost in all six cases. So I am going to 
share those. Then there are 16 cases in which there have been 5-to-4 
decisions. In all 16, the 5-to-4 Court ruled in favor of the 
corporations over the people. So in terms of campaign shenanigans, we 
have lost in 5-to-4 decisions 6 to 0. When I say ``we,'' I am talking 
about

[[Page 5417]]

the American people who care about the integrity of elections have lost 
all six times under the Court that Scalia was on. On corporations over 
people, we have lost 16 to 0. I will start sharing these cases to show 
how much this matters.
  Let's look at the issue of unleashing corporate spending. Citizens 
United v. the FEC in 2010. Under the First Amendment, donations and 
political contributions are considered free speech. The government does 
not have the right to keep corporations from spending money on 
political candidates. Money may not be given directly to candidates but 
instead may be spent on any other means necessary to persuade the 
public.
  The decision held that political speech is crucial to a democracy and 
that it is equally as important when coming from corporations. So it 
essentially said: Look, if we translate that, what that means is that 
you have a group who was designed to take small amounts of investments 
from many, many people and combine them together to create the ability 
to take on larger commercial enterprises. That is a corporation. They 
sell shares. People provide funds through those shares. They provide 
those funds to the corporation by buying the shares, and the 
corporation can take on the big projects.
  Out of those sometimes hundreds of thousands of shareholders, there 
is a small group, a board who decides how that money is spent. So you 
don't have the shareholders deciding how that money is spent; you have 
the small board. They aren't spending their own money; they are 
spending other people's money without asking their permission.
  Are you kidding me? This entity didn't exist in this form. The 
Constitution didn't say that corporations are people and that these 
entities that really didn't even exist then have the same rights of 
``free speech.'' The Constitution didn't say money is speech. No. 
Remember Jefferson's mother principle, which was that we will only make 
decisions and be successful as a democratic republic if each citizen 
has its equal voice. Citizens United is the opposite. It says: Those 
who sit on the board of gazillion-dollar corporations get a voice that 
is a gazillion times larger than the voice of an ordinary citizen. It 
is a complete contravention of the Constitution, and it is deeply 
corrupting and damaging our Nation. That is the 5-to-4 Citizens United 
case.
  Then there was the American Tradition Partnership v. Bullock case in 
2012. That overturned a Montana Supreme Court decision that banned 
corporations from spending money on political candidates and campaigns 
and found that political speech is protected regardless of the source, 
even when it comes from a corporation. In other words, Citizens United 
applies to this case as well.
  The four dissenting judges did not believe that the Court was ready 
to review the same issues as discussed in Citizens United in spite of 
the fact that Montana's Supreme Court had noted the extreme power of 
corporations in politics.
  OK, what is the story behind this? Montana was controlled by the 
copper kings. Back about 100 years ago, the people said: Enough. We 
want Montana to be controlled by the people of Montana, not by this 
vast concentration of special interest money that is making all the 
decisions.
  So they passed a law, and they kept corporate money out of their 
elections to restore the integrity of elections. The Supreme Court 
turned a deaf ear on that case.
  How about McCutcheon v. Federal Election Commission in 2014, which 
eliminated aggregate campaign limits. The decision found that aggregate 
campaign limits are invalid under the First Amendment because they 
restrict political expression. Aggregate limits do not further the 
government's interest in preventing the appearance of corruption--one 
of the main goals under the Bipartisan Campaign Reform Act.
  They also found that corporations cannot be limited in the number of 
political candidates they donate to, as this restricts the influence of 
the corporations which they were equating to free speech.
  So this was another erosion of the effort to have the vision 
Jefferson spoke to, the mother's principle that the government would 
express the will of the people. That is the same basic idea that 
Lincoln had when he phrased it in his famous address and said 
``government of the people, by the people, for the people.'' But if you 
allow this vast concentration of money to be spent on campaigns to 
corrupt those campaigns, it is not government of, by, and for the 
people. It is like the copper kings. It is the fossil fuel kings. It is 
the Koch brothers running it.
  In the Copper King case in the State of Montana, which Montana 
shrugged off and reclaimed and restored their government--versus the 
situation we have at the national level now with a similar parallel--
the fossil fuel kings, the coal kings, the oil kings putting vast sums 
in--to Citizens United.
  There was a case that had to do with whether laws were OK that 
restricted judicial candidates from directly soliciting donations for 
their campaign. My memory is that the Court said: You know what, it is 
OK to restrict judges who are directly soliciting donations because 
that would affect and bias their decisions and it would create the 
appearance of bias. So there was the reality of bias and the perception 
of bias. In other words, it would corrupt the courts.
  So on an issue involving Justices, that ``we the powerful'' group--
Roberts, Alito, Thomas, Scalia, Kennedy--that group said: Do you know 
what? No. No, we can't let money corrupt the election of judges.
  But none of them have served in the Senate or the House, and they 
couldn't translate the fact that they wanted to defend the integrity of 
judges and that that was important under the Constitution and allow 
restrictions on how campaigns were done--they couldn't translate that 
to the bias and the corruption of what happens here.
  I mean, anyone looking at the United States can see that a few years 
ago, we had a whole host of Republican environmentalists who cared 
about the next generation and the generation after and fought for clean 
air and fought for clean water. It was President Nixon who put forward 
the Clean Air Act and the Clean Water Act. It was President Nixon and 
the Republicans who proceeded to create the Environmental Protection 
Agency.
  But what happened when the fossil fuel money fueled the campaigns 
that created the new Republican majority in the Senate? All concern for 
the environment was gone. That is corruption, plain and simple.
  The Supreme Court--five Justices--proceeded to rubberstamp that it is 
OK to have that corruption--the complete opposite of the vision of our 
Constitution. They understood it when it was for judges, but they found 
for the powerful and the privileged and supported the corruption when 
it came to this body and the House.
  Then there is the suppression of access to the ballot box. The Shelby 
County v. Holder decision of 2013 struck down section 4 of the Voting 
Rights Act, which included a suspension on many of the prerequisites or 
tests to vote. The Court held that this part of the Voting Rights Act 
no longer reflects the current conditions of voting. The formulae for 
determining whether a State can change its voting laws should no longer 
be federally reviewed, the Court said.
  The decision declares that this section puts undue burden on local 
government during elections. Really? We saw how the fundamental right 
of citizens to vote was savaged in these States before the Voting 
Rights Act, and we have seen how those practices have returned after 
the Supreme Court struck down section 4 of the Voting Rights Act. That 
is why it matters.
  Let's take a look at Bartlett v. Strickland in 2009, a case that 
affirmed the North Carolina Supreme Court decision that the State's 
redistricting plan does not violate the Voting Rights Act section 2. 
State officials do not have to ensure that minority voters have the 
opportunity to join with crossover voters to elect a minority 
candidate.

[[Page 5418]]

  In this case, the Court found that the vote would not be diluted 
because the minority was comprised of less than 50 percent of the 
voting population. Due to the fact that the African-American minority 
was only 39 percent on the voting population, State officials had no 
requirement to redraw district lines.
  What are we talking about here in real terms? Is gerrymandering OK to 
change the outcome of the congressional delegation? And the Court said 
it is OK.
  Then there was Vieth v. Jubelirer--redistricting of a Pennsylvania 
congressional delegation from a Republican-controlled State legislature 
to favor Republican congressional elections. The Pennsylvania General 
Assembly was challenged by Vieth--that is the name of the challenger--
that the redrawing of the lines was political gerrymandering, violating 
Article I and the equal protection clause in the 14th Amendment.
  The opinion of the lower courts was affirmed, and Scalia wrote the 
four-member plurality which dismissed the case due to the fact that the 
Justices could not agree on an appropriate remedy for political 
gerrymandering. Scalia wrote the four-member plurality. Kennedy wrote a 
concurring opinion--so it is 5-to-4--but sought a narrow ruling so that 
the Court would still seek a solution.
  Well, the bottom line is that in a 5-to-4 Court, that fifth vote 
matters. In these six cases, the decisions were all in favor of undoing 
the vision of voter empowerment and supporting the strategy of voter 
suppression, undoing the restrictions on gerrymandering to change the 
makeup of the congressional delegation or the makeup of State 
delegations and supporting such bias being written into the system.
  These 5-to-4 decisions were all about allowing the most powerful, 
richest people to have a voice equivalent to a stadium sound system 
that drowns out the people in a position completely contrary to the 
equal-voice premise that Jefferson called the mother's provision, the 
foundation for whether or not our government would be able to make 
decisions that reflected the will of the people.
  Then there is a set of decisions 5-to-4 opinions that were relevant 
to corporations over individual rights, and some of those overlap: 
Citizens United, McCutcheon, the American Tradition Partnership v. 
Bullock that we have already covered. Let's look at some of the others.
  How about Burwell v. Hobby Lobby. Fighting to require corporations to 
provide female employees free access to contraceptives violates the 
Religious Freedom Restoration Act. The Court held that Congress 
intended RFRA to be applied to corporations. Corporations face a 
significant burden if they are forced to fund an action that goes 
against the corporation's religious beliefs. So let's give corporations 
a soul that has a religious belief. So not only has the Court extended 
the vision to corporations that they are somehow the equivalent to a 
super-rich bazillionaire individual, but they also have a soul and a 
religious belief. So concentrating this fantastic concentration of 
power and realizing that if the corporation made the decisions on the 
basis of the stockholders, with all of them having, essentially, 
input--but they don't because that is not the way a corporation works. 
You have a very difficult time trying to influence the thinking of a 
board of directors. You can make efforts. Rarely you might have a 
successful vote by a group of shareholders who take something to the 
annual meeting. But in general, that board operates in a world all its 
own, and they are spending the money--not their own money; they are 
spending the money of the stockholders without disclosing it to them. 
They actually steal the political speech by using the money in 
political speech without disclosing what it is. But that was the 
decision in Burwell which gave a corporation the ability to follow its 
religious choices--that is, the board's religious choices--over the 
workers' religious choices in an area as sensitive as women's access to 
reproductive birth control.
  Let's turn to Walmart v. Duke in 2011, a class action lawsuit brought 
by six women against Walmart claiming that Walmart policies resulted in 
lower pay and longer time for women to acquire a promotion--lower pay 
and longer time to get a promotion.
  The Supreme Court found that the six women who were applying could 
not represent a class of the 1.5 million women employed by Walmart. 
They found that the employment decisions for this large number of 
people did not have enough commonality to be represented in one case--a 
5-to-4 decision.
  In a class action lawsuit, you have principals, and they represent a 
class of folks who have been treated similarly. Certainly this is an 
example of where in general you would expect that the experience these 
women had could represent the experience that women were getting at 
Walmart as employees, but the Court turned them down 5-to-4. Four said 
these women and other like-treated individuals deserve a hearing, and 
the majority of five said: No, no, no, let's protect Walmart.
  Let's look at American Express Company v. Italian Colors Restaurant. 
Several merchants of the American Express credit card company brought 
individual cases alleging that the company's card acceptance agreements 
violate antitrust laws. The Supreme Court found that the American 
Express clause prohibiting class action lawsuits is enforceable. The 
high cost of bringing cases forward on an individual basis, which is 
impossible for an individual to do, was not a sufficient reason for the 
Court to override the company. Federal antitrust law does not guarantee 
a cost-effective process.
  So here you have a 5-to-4 decision in which, again, you have 
individuals who have been on the receiving end of bad practices or at 
least alleged bad practices by a financial company saying: We were 
shorted a few dollars or maybe a few hundred dollars, but we can't 
possibly take on this powerful company's enormous office building full 
of lawyers unless we have a class action where we have everyone who has 
been similarly affected able to bring their case at one time, with one 
set of representatives, so that maybe there will be a little bit of a 
fair playing field.
  You can't hire lawyers. It will cost you $1 million to hire lawyers 
to pursue a $100 issue. So unless there is a class action, there is no 
justice. It is justice denied and a green path for predatory practices 
by the large and powerful. Five-to-four decisions matter.
  Comcast Corporation v. Behrend. SCOTUS ruled that a district court is 
not allowed to certify a class action lawsuit without acceptable 
evidence that the damages can be measured on a class-wide basis. They 
found that the lower court failed to properly establish the impact of 
the damages on all of the plaintiffs. Courts must find that the model 
to prove damages are class-wide and quantifiable.
  Let's translate this. What does this mean? The Court, on a 5-to-4 
basis, is setting very high standards for establishing the legitimacy 
of a class action lawsuit. You have to be able to prove that the entire 
class is affected, not just probably, and it is quantifiable. So they 
are making it very difficult.
  Four Justices said: No, that is ridiculous. That is absurd. That is a 
standard that makes no sense. But the five ruling for the powerful and 
privileged said: OK, we can tighten this up and make it harder to 
challenge predatory actions by large corporations.
  We have AT&T v. Concepcion. Customers of AT&T brought a class action 
claiming that the company's offer of a free phone was a scam because 
they were still charged the sales tax on the new phone. It wasn't free; 
they had to pay a tax.
  SCOTUS found that the Federal Arbitration Act displaces State law 
stopping companies from offering contracts that do not allow class 
action lawsuits. Therefore States cannot make laws that allow companies 
to prohibit their customers from bringing forward class actions. But 
the bottom line is that the way this was framed, it had an impact of a 
5-to-4 decision with corporations over people.
  Janus Capital Group v. First Derivative Traders in 2011.

[[Page 5419]]

  Most folks didn't even know there were these many cases affecting 
powerful corporations and their predatory practices and the ability of 
ordinary people to take them on, but here they are one after another.
  Janus Capital Group created Janus Capital Management as a separate 
entity from Janus Capital. The plaintiffs claimed that JCG should be 
held liable for misleading statements by JCM regarding various funds, 
most notably the market timing of the fund's practice of rapidly 
trading in and out of a mutual fund to take advantage of inefficiency 
in the way the funds are valued.
  This was not permitted. The Fourth Circuit Court found in favor of 
the plaintiffs because the investors would have inferred that even if 
JCM had not itself written the alleged statements, JCM must have 
approved the statements. After all, JCM was created by JCG. But SCOTUS 
reversed the circuit court's finding that the false statements were 
made.
  So each of these cases involved efforts to tighten or narrow the 
channel through which ordinary people can challenge the conduct of the 
powerful. The powerful can use a series of strategies--in this case, 
creating a subsidiary--to bypass responsibility for misleading 
statements.
  Ashcroft v. Iqbal in 2009. The case concerns the arrest and 
subsequent treatment of Javaid Iqbal at the Metropolitan Detention 
Center in Brooklyn, NY. Iqbal and several thousand other Arab Muslim 
men were arrested as a part of the investigation into the then recent 
September 11 terrorist attacks. Upon his release, Iqbal brought suit 
alleging discrimination and 21 constitutional rights violations by the 
Department of Justice, Bureau of Prisons, and FBI. The defendant argued 
that their official government roles protected them from suit.
  The U.S. district court denied the defendants' motion to dismiss--
that is, protected the ability of the suit to be brought--and supported 
their qualified immunity defense. The U.S. Court of Appeals for the 
Second Circuit affirmed the district court's ruling with one exception: 
They ruled that under the defendant's qualified immunity defense, it 
was not a violation of due process given the context of the terrorist 
attacks' unique circumstances. The Supreme Court then upheld the 
finding of the Second Circuit.
  Again, each case is a narrowing and a finding of individual against a 
corporation or a larger entity in a 5-to-4 decision.
  These cases--I don't think I will go through all of these remaining 
six cases, but I think you get the general idea. The bottom line: In 5-
to-4 opinions, corporations won 16 times and ordinary people won zero 
times.
  So I want to go back to the fact that Gorsuch himself is an extreme 
judge, and I think it is important to talk about the cases he was 
involved in directly. What I have just been laying out is that a 5-to-4 
Court makes an enormous difference. Is the Court going to look for 
every possible way to deny the opportunity for ordinary citizens to 
take on the powerful and the powerful to get away with predatory 
practices, or are they going to honor the vision of government of, by, 
and for the people? That is the fundamental question in a 5-to-4 Court. 
And Gorsuch fits right into that because the vision of honoring the 
ability of people to take on the powerful in a system of justice versus 
a system that perpetrates injustice by allowing the powerful to get 
away with predatory practices against ordinary people and constrains 
the right of individuals and expands the rights of corporations--that 
turns corporations into predator superhumans with more money than any 
one individual and more power than any one individual and more campaign 
cash than any one individual. In fact, a corporation will often have 
more cash to be spent in a campaign than the rest of America--perhaps 
the entire rest of America put together.
  When the Koch brothers said in January 2015 that they were going to 
spend nearly $1 billion in the next election, do you think there were 
many Americans who said: Well, well, I can do that. No. That would 
represent the political spending by virtually all the rest of America. 
That is the challenge of the concentration of power in our country.
  We have seen that there are a whole series of cases that allow 
gerrymandering and voter suppression and campaign spending and dark 
money designed to corrupt the ``we the people'' elections, the 
foundation of our democratic Republic. We saw a whole series of cases 
that involve finding for the powerful corporations in restricting the 
rights of people to band together to challenge them through class 
action lawsuits. That is the difference between these two parts of the 
judicial decisions, and Neil Gorsuch is way to the right.
  So let's look at the preamble to our Constitution: ``We the People of 
the United States, in order to form a more perfect union, establish 
justice''--those are the next words, ``establish justice.'' What kind 
of justice is there if the Court continuously allows the corruption of 
our elections? What kind of justice is there if the Court continually 
restricts the power of ordinary people to bring a case against a 
predatory practice of a powerful institution? That is the question.
  Our Constitution that starts out with those three beautiful words 
that I quoted many times tonight, ``We the People,'' also has a vision 
of establishing justice. How is it that this group of Justices has 
forgotten that our Constitution was about establishing justice? Well, 
that is a big concern.
  However, what we find is that Neil Gorsuch is coming to his court 
decisions and to his writing from a viewpoint of how to arrange the 
details to help the powerful come out on top.
  (Mr. STRANGE assumed the Chair.)
  Let's look at the frozen trucker case. Anphonse Maddin was 
transporting cargo through Illinois when the brakes on his trailer 
froze because of subzero temperatures. Maddin did the responsible 
thing: He didn't move the trailer anymore because without brakes, he 
would have been endangering the lives of everyone on the road. So to 
protect others, he refused to operate the truck. After reporting the 
problem to the company, he waited 3 hours in freezing temperatures for 
a repair truck to arrive. He could not even wait in the cab of his 
truck to keep warm because the auxiliary power unit was broken.
  After waiting 3 hours in subzero temperatures, his torso went numb, 
and he began having difficulty breathing. He could not feel his feet. 
He felt his life was at risk. He unhitched the disabled trailer with 
its frozen brakes because he thought it was absolutely dangerous to 
drive with a full load without brakes, and he drove the cab to a place 
where he could get warm.
  Even as he was driving away, even after he had reported his numbness 
and difficulty breathing, the company was still radioing Alphonse 
Maddin to wait in the dangerous, frigid condition or to drive with a 
full load and frozen brakes. The company wanted him to drive with 
frozen brakes. The company wanted him to drive in those temperatures, 
with ice on the road, and with a full load. Help arrived about 15 
minutes after Maddin made the decision to leave. As soon as he heard 
that, he turned around, and he returned to the trailer, but TransAm 
Trucking fired him for leaving the trailer unattended.
  The argument that TransAm Trucking had used for firing Alphonse 
Maddin was, instead of remaining in the dangerous, freezing conditions 
and refusing to drive because of there being a disabled trailer, he 
drove away without the disabled trailer. In the company's mind, Maddin 
had two choices: one, freeze to death or, two, drive the disabled 
vehicle with the frozen brakes and trailer attached, putting other 
people's lives at risk. He had two choices: Put his own life at risk or 
put everyone's life at risk.
  The Department of Labor looked at this and said that the truckdriver 
was fired in violation of the Surface Transportation Act's protections 
and that he should be reinstated with back pay.
  The case made its way up to the Tenth Circuit. The Tenth Circuit 
said: Absolutely, the law is written so that truckdrivers will not 
operate under dangerous conditions in order to protect their safety and 
the safety of the

[[Page 5420]]

public. That is the way the law is set. The Tenth Circuit said: Yes, 
that is the way the law is set. That is what is written in the law.
  Judge Gorsuch wrote a dissent. He twisted and strained the statute. 
He wanted to find ways to minimize the word ``health'' and the word 
``safety'' and stated that the finding for the driver was improper 
because it used the law as a springboard to combat all perceived evils, 
which is a quote: ``as a sort of springboard to combat all perceived 
evils.''
  No, the law was designed to protect against a specific evil, which is 
people operating vehicles in a manner that endanger themselves or 
others. You cannot be fired as a truckdriver for operating a vehicle in 
order to protect the lives of others. The truckdriver, who was 
operating responsibly--Alphonse Maddin, who was operating responsibly--
said: I am not going to endanger others.
  He was fired for it. The Department of Labor said: No, you cannot 
fire him. That is why the law is written that way. The Tenth Circuit 
said: No, you cannot fire him. That is why the law is written that way. 
Yet Neil Gorsuch found some way of twisting the words to say: Huh, 
let's find a way to make this work for the corporation rather than the 
individual.
  Even the law says that you are protected from being fired for 
refusing to operate a truck that endangers yourself or others. Even the 
law says that. Let's find a way to go the other direction and find on 
the side of the company.
  Gorsuch wrote that his employer gave him the very option the statute 
it must. Once he voiced safety concerns, TransAm expressly permitted 
him to sit right where he was and wait for help. They gave him two 
choices: Sit and freeze in the cab, even though his torso had gone numb 
and at his own risk to his own health, or drive the trailer and 
endanger everybody's life--a lose-lose proposition. Gorsuch ignored the 
side of the statute that involved the safety of the driver as well as 
of the people.
  He dismissed the Department of Labor's view in saying that there is 
simply no law that anyone has pointed to us giving employees the right 
to operate their vehicles in ways their employers forbid.
  Yes, there is. The law says that you cannot fire someone for driving 
or for refusing to operate a vehicle in a manner that endangers other 
people's lives.
  The majority of the court that supported the Labor Department's 
reasoning called Gorsuch's reasoning ``curious.'' That is the polite 
way of saying that we have no idea how he could possibly have twisted 
the law in this fashion. If Gorsuch had gotten his way, there would 
have been no justice for Alphonse Maddin--a pure decision of the frozen 
trucker, a decision devoid of common sense, totally detached from the 
law as written. That is the frozen trucker case.
  Let's look at the autistic child case of Thompson R2-J School 
District v. Luke P. Because he is a youngster, his last name was not 
used. It was a 2008 case.
  Luke P., a young child with autism, began receiving special education 
services in kindergarten at his public school. He had an education plan 
that was specific to his needs as was required by the Individuals with 
Disabilities Education Act, or IDEA.
  In early grades, he had made progress in skills related to 
communication, self-care, independence, motor skills, social 
interactions, and academic functioning, but he was not making progress 
in generalizing his skills and applying skills learned in school to 
other environments, such as his home life.
  Despite the situation at school, there were a lot of problems in his 
conduct, and the public school's inability to meaningfully improve 
Luke's ability to generalize basic life skills beyond the walls of the 
school posed significant limitations on his future.
  The basic story is this: The school was failing to provide the type 
of education that was necessary for Luke to gain the ability to operate 
in life. They found a school that could provide that ability. They 
said: To save our child, we will transfer him to that residential 
school near Boston that specializes in serving children with autism. It 
was a great opportunity for him to learn, and he got in and began to 
flourish--a huge change.
  Luke's parents, in their knowing that IDEA entitles children with 
disabilities to a free education, applied to the school district for 
reimbursement of the tuition. The school district refused.
  The long and short of it is that, at a State-level hearing, Luke's 
parents prevailed. The case went to the Federal district court, and his 
parents prevailed under the Individuals with Disabilities Education 
Act. At each level, a hearing officer or judge determined that Luke was 
not getting the help he needed at his public school. They concluded 
that the school district had failed to provide him the free and 
appropriate education that was entitled to him under the law.
  You have decisions made at multiple levels that the school district 
was not meeting the standard of the law. Each declared that only a 
residential school could provide Luke with the education he needed. 
Therefore, the reimbursement of the tuition to the family was necessary 
and appropriate under the law.
  The school district appealed all the way up to Judge Gorsuch on the 
Tenth Circuit Court. In writing the opinion for the majority, Judge 
Gorsuch--and they reversed the lower court's ruling--stated that the 
educational benefit that was mandated by IDEA must be ``merely more 
than de minimis.''
  Here is the new judge's--Neil Gorsuch's--law. He is rewriting the 
trucker law so that truckers can be fired for protecting their safety 
and the safety of others. He is rewriting Individuals with Disabilities 
Education Act so that, instead of having an education that is 
appropriate to the student, in fact, all that is required is ``merely 
more than de minimis.''
  ``De minimis'' means the minimum--like nothing, like babysitting. 
Gorsuch said that the benefit provided to Luke--essentially, the 
babysitting--satisfied that standard. In effect, Judge Gorsuch argued 
that, under IDEA, all the school system had to do was to provide 
disabled children with the bare minimum, which is an incredibly low 
bar.
  I will tell you that the whole intent of IDEA--the whole debate held 
here in the Senate, the whole debate held in the House, the signing, 
the whole framework for this act--was that we have to do right by our 
disabled children. Therefore, schools were mandated to provide 
appropriate education. The whole of Gorsuch's finding was to say: No, I 
am rewriting the law--minimal, babysitting, ``merely more than de 
minimis.'' It is merely more than nothing when translated.
  What would be enough? It is as if the whole debate had never occurred 
over the vision of requiring schools to provide an appropriate 
education to students.
  This is not just an example of some narrow reading of the law. This 
is judicial activism--rewriting the law to a completely different thing 
than it was intended to say.
  How could Judge Gorsuch argue putting disabled children like Luke in 
a room and giving him nothing other than merely more than nothing after 
having met the standards of a substantial act of Congress that was 
fully designed to give an appropriate education for disabled children? 
How do those things even come close to equating? ``Merely more than 
nothing'' versus ``you must provide an appropriate education''--how do 
you square those two things? How do you have a judge completely rewrite 
the law and say that he is qualified to sit on the Supreme Court?
  We can tell you that the High Court disagreed completely with Judge 
Gorsuch. We can tell you this because, just this year--just a few days 
ago--the Supreme Court ruled on this case, and they overturned Judge 
Gorsuch. They did so not by 5 to 3; they did so by 8 to nothing--8 to 
zero.
  Eight Justices--four conservative, four liberal--looked at this and 
said that the law says ``appropriate education.'' Judge Gorsuch said 
``merely

[[Page 5421]]

more than nothing.'' That is not the law as written. That is rewriting 
the law to find on behalf of the powerful, the larger--in this case, 
the school district--over the individual. It is a pattern we see in his 
rulings time and time and time again.
  That is why, if you do nothing about the fact that this seat was 
stolen for the first time in U.S. history--a seat stolen for the 
Supreme Court from one administration and sent forward in an effort to 
pack the Court--and if you did not know anything about that and if all 
you knew was this set of decisions, you would ask: How can we possibly 
put on the Supreme Court an individual who rewrites the law to mean the 
opposite of what it is written to say--that black is white and white is 
black; that ``do something significant'' means ``do nothing'' or 
``merely nothing''; that protecting those drivers who operate in safety 
for themselves or safety for the people on the road--Judge Gorsuch says 
to strip away that protection.

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