[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5547-5557]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                     EXECUTIVE CALENDAR--Continued

  Mr. GARDNER. Mr. President, I ask unanimous consent that the Senate 
resume executive session to consider the nomination of Neil Gorsuch.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Order for Recess

  Mr. GARDNER. Mr. President, if there is no further business to come 
before the Senate, I ask unanimous consent that it stand in recess 
under the previous order, following the remarks of Senator Cantwell for 
10 minutes, Senator Franken for 30 minutes, Senator Murphy for 30 
minutes, and Senator Hirono for 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GARDNER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, I rise to oppose the nomination of Neil 
Gorsuch and to oppose cloture on this nomination.
  I take seriously the responsibility to give advice and consent, and I 
take seriously the President's remarks that he planned on nominating 
someone to the Court who would overturn Roe v. Wade.
  A U.S. Supreme Court nominee requires 60 votes, and if a nominee 
can't clear 60 votes, then I agree with my colleague, the Senator from 
New York, that it is the nominee who should be changed and not the 
Senate rules.
  If confirmed, Judge Gorsuch will have a lifetime appointment to the 
U.S. Supreme Court and have an impact on many, many Americans' lives. 
When people say lifetime, I think that doesn't quite accurately reflect 
this issue and nomination. Lifetime, in this case, may mean 30 to 35 
years.
  It is hard for me in an information age to think of all the issues 
that are going to occur in the next 30 to 35 years and what issues this 
nominee might rule on. But I know this: Right now, privacy rights and 
how they affect the lives of many Americans are critical, not just to 
my constituents but to people all over the country.
  Judge Gorsuch is commonly referred to as a proponent of originalism 
and textualism. He believes the U.S. Constitution should be interpreted 
by the original intentions of those who drafted it as closely as 
possible. As someone who knows well the record of the former Supreme 
Court Justice who wrote the Griswold v. Connecticut decision, I doubt 
that one would say that he was an originalist.
  Some legal scholars have even called Judge Gorsuch a selective 
originalist, favoring some textual provisions while overlooking others. 
And while no one expects Judge Gorsuch to reveal how he would vote on a 
particular case. During his Senate confirmation hearing, he did not 
give Senators enough background about his judicial philosophy. In our 
private meeting, he did not give me enough of an assurance of his 
philosophy as it relates to these issues on privacy for my constituents 
in Washington.
  Whether we are talking about access to healthcare or we are 
protecting individuals' privacy rights from unwanted corporation or 
government intervention, these issues are critically important. Judge 
Gorsuch told the Senate Judiciary Committee that he does recognize 
privacy rights. However, his earlier writings on unenumerated 
constitutional rights contradict this statement. This contradiction 
raised questions with me, and I worked to try to further clarify his 
judicial philosophy on this issue.
  I told him that my State had actually codified the rights of women to 
have access to reproductive healthcare.
  He said: Oh, you mean your State legislature did that.
  And I said: No, Judge Gorsuch, I mean the people of Washington voted 
on these issues and voted to protect a woman's right to access to 
reproductive healthcare.
  When it comes to the right to privacy, I work hard to understand 
where our judiciary is coming from, and if it is for the next 30 to 35 
years, I guarantee you these privacy rights are going to be of critical 
importance.
  In the longstanding precedent known as the Chevron doctrine, judges 
should defer to reasonable agency interpretations of ambiguous 
statutory language. It allows agencies to get expert input on their 
decisions and regulations. By overturning this doctrine, it could make 
it easier for courts to challenge important agency decisions protecting 
health and the environment. This issue is also important to my State. 
We fought the Enron case to make sure that the Federal energy 
regulators did their job in protecting the ratepayers of Washington 
from, at the time, what was, in my opinion, a violation of the Federal 
Power Act on just and reasonable rates. We had to go to a great extent 
to make sure that the agencies' decisions were carefully considered to 
make sure we didn't become the deep pockets.
  Making sure that this doctrine is continued and not overturned is 
important. I find it troubling that Judge Gorsuch concluded that this 
precedent from Chevron v. the Natural Resources Defense Council should 
be overturned.
  Also, yesterday was Equal Pay Day, and there was a lot of discussion 
about how women still face unequal wages.

[[Page 5548]]

What would Judge Gorsuch do about equal pay?
  As a professor, he told his students that women manipulate family 
leave policies for their own benefits. As a judge, he frequently ruled 
against women and their rights. In Hobby Lobby v. Sebelius, a privately 
held company, which was a store chain, challenged the Affordable Care 
Act's birth control benefit. The Affordable Care Act required health 
insurance plans to provide women with birth control coverage with no 
cost sharing.
  Judge Gorsuch joined the Tenth Circuit majority, holding that an 
employer's religious beliefs could override an employee's right to 
birth control coverage. Judge Gorsuch also supported an effort to 
defund Planned Parenthood, an important provider of women's health 
services. In Planned Parenthood Association of Utah v. Herbert, the 
Tenth Circuit upheld an injunction to prevent the Governor of Utah from 
defunding Planned Parenthood. However, Judge Gorsuch dissented and 
pushed for a rehearing of this case by the full court.
  Judge Gorsuch has had a narrow interpretation of the laws meant to 
protect workers against discrimination. In another case, a worker 
alleged that she had been unlawfully discriminated against based on 
gender because she took 2 weeks of leave under the Family Medical Leave 
Act. She claimed that her employer had a higher performance standard 
for women than for her male coworkers. The Tenth Circuit ruled in her 
favor and found that the employer had discriminated against her. 
However, Judge Gorsuch dissented, arguing evidence of discrimination 
was entirely absent.
  These issues and rulings make me concerned about Judge Gorsuch's 
judicial philosophy as it relates to what I now believe is an accepted 
standard.
  Judge Gorsuch has also ruled against LGBTQ individuals seeking fair 
and nondiscriminatory treatment. Lambda Legal and other groups have 
called his record openly hostile toward the LGBTQ community. Judge 
Gorsuch has held that a transwoman's constitutional rights were not 
violated, citing the absence of any medical evidence.
  Also, as many of my colleagues have talked about, Judge Gorsuch has 
had a pattern of ruling against the little guy. My colleague from 
Hawaii noted that he seems to favor corporate interests over workers' 
rights and private interests over public interests.
  Look at the outcome in many of these cases, which have been cited 
frequently since his nomination--none more than the case involving the 
Individuals with Disabilities Education Act. I think it is so important 
that it needs to continue to be talked about.
  This case, which was recently rejected by the U.S. Supreme Court, 
limited the opportunities for children with disabilities. Judge Gorsuch 
had concluded that to comply with the law, the school's responsibility 
to the student was to make progress that was ``merely more than de 
minimis.'' That is to say that those children in our education system 
who have a special need, whether it be autism or something else, 
through our education system need to make progress, and it could be no 
more than de minimis.
  This ruling impacts hundreds of thousands of students all across 
America, including in the State of Washington. He wrote the majority 
opinion and used the word ``merely.''
  I asked Judge Gorsuch about this because of the cases I mentioned 
earlier on Federal energy regulators and the fact that we needed strong 
anti-manipulation laws, and we needed people to interpret the standards 
to make sure that they were upholding the interests of the public. We 
had quite a long discussion about this issue. Judge Gorsuch suggested 
that he was bound by a previous decision.
  I know some of my colleagues have also noted this, but when Justice 
Roberts wrote the unanimous opinion rejecting these ``merely more than 
de minimis'' standards that Judge Gorsuch used, Justice Roberts said: 
``When all is said and done, a student offered an educational program 
providing merely more than de minimis progress from year to year can 
hardly said to have been offered an education at all.'' On this point, 
I agree with the Chief Justice.
  Not having a deeper understanding about his judicial philosophy and 
given my great concerns for the right to privacy issues that will 
remain constant in our society for the next 30 years and given these 
issues around regulatory standards that are so important, I cannot 
support this nomination nor support cloture to move ahead.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRANKEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Chemical Attack in Syria

  Mr. FRANKEN. Mr. President, before I begin my remarks on Judge 
Gorsuch, I just want to take a minute to talk about the chemical attack 
in Syria.
  Words cannot describe these vicious attacks against civilians. We 
have all seen the horrific footage of the victims, many of whom were 
children. These are innocent men, women, and children who, through no 
fault of their own, are caught in the middle of a bloody civil war, 
stuck between a brutal regime, armed groups, and foreign powers. My 
heart goes out to the victims and their families.
  The world has come together and unequivocally condemned these acts 
and their perpetrators. We must work together to find a path toward 
peace and stability in Syria, and the United States must take a 
leadership role in that effort.
  Mr. President, I rise in opposition to the nomination of Judge Neil 
Gorsuch to serve as an Associate Justice on the Supreme Court. After 
meeting with the nominee, carefully reviewing his record, and 
questioning him during his confirmation hearing, I have come to the 
conclusion that elevating Judge Neil Gorsuch to the Supreme Court's 
bench would merely guarantee more of the same from the Roberts Court--a 
sharply divided, already activist Court that routinely sides with 
powerful corporate interests over the rights of average Americans.
  I think it is important to start by acknowledging just exactly how it 
is that Judge Gorsuch came to be before the Senate; namely, this body's 
failure to fulfill one of its core functions. Immediately following the 
death of Justice Scalia, in a move as cynical as it was irresponsible, 
Senate Republicans announced that they would not move forward with 
filling the vacancy until after the Presidential election. Before 
President Obama had even named a nominee, the majority leader said: 
``The American people should have a voice in the selection of their 
next Supreme Court Justice.'' The only problem with the majority 
leader's reasoning was the American people did have a voice in the 
decision; they had voted to make President Obama the President of the 
United States. Nonetheless, Republican members of the Judiciary 
Committee gathered behind closed doors and vowed to defy the eventual 
nominee a hearing. Many Republicans refused to even meet with the 
nominee. They said it didn't matter who the President nominated; they 
said this was about principle.
  But Senate Republicans had a difficult time justifying their 
obstruction--that is, until they decided to mischaracterize a speech 
delivered by former Judiciary Committee chairman Joe Biden in June of 
1992. In that June of 1992 speech, then-Senator Biden discussed the 
possibility of a Supreme Court Justice resigning in an election year in 
order to ensure that a President of the same party could name a 
replacement. Under those circumstances, he said, the President should 
refrain from nominating a replacement and the Senate should not hold 
confirmation hearings until after the election.
  My Republican colleagues seized upon this small portion of Senator 
Biden's speech and dubbed it the ``Biden rule.'' Chairman Grassley said 
the Senate ought to abide by the Biden

[[Page 5549]]

rule, which he said holds that there are ``no presidential Supreme 
Court nominations in an election year.''
  The majority leader said: ``As Chairman Grassley and I declared . . . 
the Senate will continue to observe the Biden Rule so that the American 
people have a voice in this momentous position.'' So in order to 
justify a truly unprecedented act of obstruction, my Republican 
colleagues pointed to the so-called Biden rule and said they were 
standing on principle. That was the principle. But my Republican 
colleagues chose to overlook a few important details.
  First of all, the scenario Senator Biden described in his 90-minute 
speech was not the situation our country faced last year. No one 
strategically resigned last year. A Justice died. No one dies to game 
the system.
  Second and most importantly, my Republican colleagues ignored the 
actual point that Senator Biden made in that speech. If they had 
bothered to read the entire speech--and I suspect they actually had--
they would have found that further down, Senator Biden said--and this 
is important. This is what Senator Biden said in the speech used as the 
justification not to take up Merrick Garland. Senator Biden said in 
that speech, ``If the president [then George H.W. Bush] consults and 
cooperates with the Senate or moderates his selections absent 
consultation, then his nominee may enjoy my support, as did Justices 
Kennedy and Souter.''
  Allow me to dwell on that for a moment. Senator Biden said that if a 
Supreme Court vacancy arose during an election year and the President 
consulted with the Senate or, absent consultation, put forward a 
moderate, consensus candidate, that candidate should enjoy the support 
of the Judiciary Committee's chairman. That is the Biden rule. That is 
the Biden rule.
  If Senate Republicans had actually followed the Biden rule, we 
wouldn't be here today. Merrick Garland would be sitting on the Supreme 
Court bench.
  Over the past few days, I have heard my Republican colleagues 
denounce Democratic opposition to Judge Gorsuch by claiming that there 
never has been a partisan filibuster of a Supreme Court nominee. But if 
the shameful and unprecedented obstruction that Republicans used to 
effectively block President Obama from appointing a Supreme Court 
Justice wasn't a partisan filibuster, then I don't know what is.
  Perhaps my Republican colleagues were concerned that President Obama 
would seek to replace Justice Scalia--a reliably conservative member of 
the Court--with a jurist whose view would place him or her on the 
opposite end of the ideological spectrum. That seems to be the concern 
that my good friend Senator Hatch expressed when he said:

       [T]he President told me several times he's going to name a 
     moderate, but I don't believe him. [President Obama] could 
     easily name Merrick Garland, who is a fine man. He probably 
     won't do that because this appointment is about the election. 
     So I'm pretty sure he'll name someone the [Democratic base] 
     wants.

  But as it turns out, in recognition of the forthcoming election and 
the Republican-controlled Senate, President Obama did exactly what 
then-Senator Biden said a President should do: He named a moderate, 
consensus candidate. He named Merrick Garland.
  Judge Garland was supremely well qualified for the job. Here is a guy 
who was his high school's valedictorian, who attended Harvard on a 
scholarship, won clerkships with legal legends like Second Circuit 
Judge Henry Friendly and Supreme Court Justice William Brennan, and 
left a partnership at a prestigious law firm to become a Federal 
prosecutor during the George H.W. Bush administration. He later joined 
the Justice Department, where he prosecuted the men responsible for 
bombing the Oklahoma City Federal Building in 1995, and Merrick Garland 
kept in touch with the survivors' and the victims' families. That is 
the reason why one of the very first of three Republicans agreed to 
meet with Judge Garland--Senator Jim Inhofe of Oklahoma, a staunch 
conservative--because people of Oklahoma had such regard for Merrick 
Garland.
  After Judge Garland was confirmed to the D.C. Circuit in 1997, he 
earned a reputation for working with his colleagues from across the 
ideological spectrum to identify areas of agreement and to craft strong 
consensus opinions, often by deciding a case on the narrowest grounds 
possible.
  Judge Garland was the right choice at the right time. He wasn't a 
partisan warrior or a partisan political animal; he was a judge's 
judge, and everyone knew it. That is why my Republican colleagues had 
to hide behind new and misleading so-called rules in order to deny him 
a hearing and a vote.
  Judge Gorsuch is no Merrick Garland. Judge Gorsuch is a creature of 
politics. That is not what Judge Gorsuch told me when I met him earlier 
this year. I asked Judge Gorsuch if he was bothered by the way the 
Senate treated Merrick Garland. He responded by telling me that he 
tries to stay away from politics. But documents that the Judiciary 
Committee received from the Department of Justice, including emails 
between Judge Gorsuch and Bush administration officials, show that 
Judge Gorsuch was very heavily involved in politics. A resume he sent 
to President Bush's political director in November 2004--back when 
Judge Gorsuch was looking for a job--detailed his work on Republican 
political campaigns dating back to 1976 and highlighted an award he 
received from Senate Republicans for his work to advance President 
Bush's judicial nominees. Ken Mehlman, the former chairman of the 
Republican National Committee, later recommended Judge Gorsuch for a 
post at the Justice Department and described him as a ``true 
loyalist.''
  Understand, being politically active or being a Republican is not a 
disqualifying characteristic in a Supreme Court nominee, at least not 
in my book, but Judge Gorsuch's resume is relevant here because, 
contrary to what he told me, his resume establishes that he is not just 
intimately familiar with politics; he knows the politics of the 
judicial nominations process and he knows it well. Let me explain why I 
think that is important.
  During the campaign, then-Candidate Trump spoke openly about his 
litmus test and what kind of a judge he would appoint to fill Justice 
Scalia's seat on the Court. He said that he would ``appoint judges very 
much in the mold of Justice Scalia.'' During the final debate, he said, 
``The justices that I'm going to appoint will be pro-life. They will 
have a conservative bent.''
  Part of the reason that then-Candidate Trump could say that with such 
conviction is because he had already outsourced the job of coming up 
with a list of potential nominees to the Federalist Society and the 
Heritage Foundation, both rightwing organizations. The groups produced 
a list of 21 conservative judges for then-Candidate Trump, a list that 
included Judge Gorsuch. Presumably, the Federalist Society and the 
Heritage Foundation knew something about the judicial philosophy of the 
men and women who it had decided to include on that list, given Judge 
Gorsuch's previous work to push judicial nominees through the Senate. I 
am sure he knew a thing or two about the Heritage Foundation and the 
Federalist Society, as well.
  In fact, Judge Gorsuch first learned that he was under consideration 
for the vacancy from the Federalist Society's vice president, who was 
working with the transition team. Judge Gorsuch went on to interview 
with a host of other members of the transition team, including now-
White House Chief of Staff Reince Priebus and Chief Strategist Stephen 
Bannon. Weeks later, President Trump had officially nominated Judge 
Gorsuch. Both Mr. Reince Priebus and Mr. Bannon appeared before 
rightwing activists at CPAC and talked about his nomination. Mr. 
Priebus told the crowd that Justice Gorsuch would bring about ``a 
change of potentially 40 years of law.'' He said: ``Neil Gorsuch 
represents . . . the type of judge that has the vision of Donald Trump, 
and [his nomination] fulfills the promise that he made to all of you,'' 
gesturing to a crowd of conservative activists.
  So whether Mr. Priebus was suggesting that, if confirmed, Judge

[[Page 5550]]

Gorsuch would unsettle 40 years of precedent--like Roe v. Wade or 
Chevron--or whether he was suggesting that Judge Gorsuch would be a 
reliably conservative vote for the next 40 years, it seems clear to me 
that confirming Judge Gorsuch is central to President Trump's political 
agenda.
  Now, my Republican colleagues would have you believe that nothing 
could be further from the truth. In their view, they say that judges 
call balls and strikes--nothing more, nothing less. Earlier this week, 
for example, Senator Cruz said: ``Conservatives understand that it is 
the role of a judge, and especially the role of a Supreme Court 
Justice, simply to follow the law.'' He said that Senate Republicans 
``are not confirming someone who will simply vote with our team on a 
given issue.'' It is Democratic judges, according to Senator Cruz who, 
``by and large view the process as achieving the result they want and 
view the process of adjudicating a case as a political process.''
  Let me explain why I take issue with that. If my Republican 
colleagues truly believe that a judge's proper role is to call balls 
and strikes and to decide cases narrowly, they would have confirmed 
Merrick Garland, a judge with a proven track record of crafting 
consensus opinions built on narrow holdings. But a judge who calls 
balls and strikes isn't really what my colleagues want. Contrary to 
what Senator Cruz said, what my Republican colleagues want is a 
results-oriented judge. Why else would they hold open a seat on the 
Supreme Court bench? Why else would they turn to the Heritage 
Foundation and the Federalist Society for candidates? Why else would 
they trample on the traditions of the Senate? What my Republican 
colleagues really want is a judge who will vote with their team, and 
that is the judge they will get by confirming Neil Gorsuch. That is 
what this is all about. That is what this is about.
  Unlike Merrick Garland, Judge Gorsuch has little interest in reaching 
consensus or in citing cases narrowly. Now, Judge Gorsuch took great 
pains to paint himself as a mainstream nominee. He pointed out that the 
Tenth Circuit ruled unanimously 97 percent of the time, and that he was 
in the majority 99 percent of the time, but that is not unusual, and it 
doesn't provide any insight into his approach to being a judge. After 
all, the Courts of Appeals are required to follow Supreme Court 
precedent in all circuits around the country, and the vast majority of 
their cases are decided unanimously.
  So in order to really understand Judge Gorsuch's approach to deciding 
cases--in order to really understand how he views the law--it is 
critically important to look at the cases where he chose to write 
separate concurrences or dissents. These concurring and dissenting 
opinions offer the clearest window into how he really thinks. Judge 
Gorsuch tends to write a lot of concurring and dissenting opinions. 
Even when Judge Gorsuch agrees with the majority and joins their 
decision, he frequently writes his own concurrence, setting out his own 
views. Judge Gorsuch has done this 31 times, including writing two 
concurrences to majority decisions that he, himself, had written. That 
is not seeking out consensus. That is holding his nose to join a 
consensus opinion, and then writing separately in order to point the 
way to broader, more sweeping rulings that other courts might issue in 
future cases--other courts like the Supreme Court, which doesn't have 
to follow precedent, which he is now poised to join and where he will 
not be restrained by precedent.
  Judge Gorsuch is a results-oriented judge, and his record 
demonstrates that he approaches cases with a very specific outcome in 
mind. Contrary to what my Republican colleagues would have you believe, 
he doesn't hide that judicial philosophy. Whether it is his concurrence 
in Hobby Lobby or his dissent in TransAm Trucking, Judge Gorsuch wears 
that philosophy on his sleeve. It only underscores a disturbing 
pattern: siding with corporate interests over average Americans.
  That philosophy was on full display in the dissent that Judge Gorsuch 
wrote in TransAm Trucking. It seems clear to me that Judge Gorsuch 
approached this case with a specific outcome in mind, which was siding 
with a company over a worker. And in order to just justify that outcome 
in his dissent, Judge Gorsuch twisted himself into a pretzel.
  You may have heard this story, but I want to lay it out as 
efficiently as possible because I think it reveals a great deal about 
Judge Gorsuch's philosophy, and it helps to explain exactly why I am 
voting against him. In this case, trucker Alphonse Maddin is driving a 
rig on the interstate through Illinois. He is pulling a long trailer 
that is fully loaded. He makes a stop. He takes a break. Then, at 11 
p.m., he is about to pull back onto the interstate, but discovers that 
the brakes on his trailer are locked. It is 14 below zero out. These 
brakes are literally frozen. So he calls his dispatcher to ask for 
repairs. And he waits.
  While he is waiting, the heater in his cab stops working, and he 
falls asleep and is awakened by a call from his cousin. When Maddin 
sits up to answer the phone, he realizes that his torso is numb, and 
that he can't feel his feet. He is having trouble breathing. His cousin 
later says that Maddin's voice is slurred, and he wasn't tracking. 
According to the Mayo Clinic, these are all symptoms of hyperthermia. 
Maddin calls into the dispatcher again. He is told to hang on. He says: 
I can't. His boss tells him he has two choices, wait there until the 
repair truck comes, or he can take the whole rig on the road, including 
the trailer with frozen brakes. Those are the two options he is given 
by his boss. Maddin knows that if he waits, he may very well freeze to 
death. That is his first option, or he can go out on the interstate at 
2 o'clock in the morning, dragging a fully-loaded trailer with frozen 
brakes at 10, maybe 15 miles per hour max, posing a safety hazard to 
other drivers at the interstate. Remember, it is 2 o'clock in the 
morning. It is dark. It is probably icy. Imagine a car going 80, 85 
miles per hour--as people do at 2 o'clock in the morning on an 
interstate--coming up over a hill behind that rig, and then coming down 
and seeing this rig going 10 or 15 miles per hour, where you are going 
80, 85. That would be like suddenly coming down on a stopped tractor 
trailer while you are going 70 miles per hour. That is his second 
option.
  Instead, Maddin does what any of us would do. He unhitches the 
trailer and drives down the interstate to find someplace warm, and he 
does get warm. Then he returns to the trailer when the repair truck 
finally shows up, and he is fired. He is fired for abandoning his 
cargo. Now, there is a law to protect people in Maddin's situation. So 
he files a case. When it gets to the Tenth Circuit, a three-judge panel 
agrees with him, with Maddin. They find that the trucking company 
shouldn't have fired Mr. Maddin, but one judge dissented--Judge Neil 
Gorsuch.
  So during my question, I asked Judge Gorsuch a very simple question: 
What he would have done if he had been the truck driver; if he had been 
driving that truck. I asked: Which would you have chosen? What would 
you have done? And here is Judge Gorsuch's response: ``Oh, Senator, I 
don't know what I would have done if I were in his shoes.''
  Now, is there anyone here who would not have done what that driver 
did? I don't think so. Of course, you would unhitch the trailer and 
find someplace warm as quickly as possible--of course. But Judge 
Gorsuch said he didn't know what he would have done? Is that possible?
  I asked him if he had even thought about what he would have done if 
he were Maddin. You know, he had heard the case. He did not answer. So 
I asked him again. I asked him, given the choices of sitting there and 
possibly freezing to death or going on the road with an unsafe vehicle, 
or doing what Mr. Maddin did, and Judge Gorsuch responded: Senator, I 
don't know. I was not in the man's shoes.
  Judge Gorsuch said he decides cases based on the facts and the law 
alone. ``I go to the law,'' he said. But so, in fact,

[[Page 5551]]

did the majority. Here is the operable law. Here is the law: ``A person 
may not discharge an employee who refuses to operate a vehicle because 
the employee has reasonable apprehension of serious injury to the 
employee or the public because of the vehicle's hazardous safety or 
security condition.''
  The majority ruled that the company could not fire the truckdriver 
because he had refused to operate the rig, the entire rig, because it 
was unsafe. But Judge Gorsuch said no. While operating the cab, he was 
operating the vehicle. Therefore, he did not refuse to operate a 
vehicle.
  Judge Gorsuch said he made that decision by applying the plain 
meaning rule. I pointed out that the plain meaning rule has an 
exception: ``When using the plain meaning rule would create an absurd 
result, courts should depart from the plain meaning.'' It is absurd to 
say that this company was within its rights to fire him because he 
refused to choose between possibly dying by freezing to death or 
possibly killing other people by driving a semi on an interstate at 10 
miles an hour at 2 in the morning. Frankly, the company is fortunate 
that Mr. Maddin made the choice he made because otherwise they may very 
well have faced a wrongful death claim.
  Everyone who was in the hearing knows what Judge Gorsuch would have 
done in Alphonse Maddin's situation. If Judge Gorsuch had answered 
honestly, he would have said that he would have done exactly, exactly 
what the driver did. Everyone would. Judge Gorsuch just did not want to 
admit it. That is because there is no good answer.
  If Judge Gorsuch said that he would do the very same thing that Mr. 
Maddin did, that would make his dissent look pretty bad. But if he had 
said ``I would have done what the company told me to do,'' that would 
be an absurd answer. That would make you question the man's judgment. 
No one would believe it. So, instead, Judge Gorsuch said: I don't know 
what I would have done. But of course he did. He just was not being 
honest. Judge Gorsuch approached Mr. Maddin's case with an outcome in 
mind, siding with the corporation, and the dissent that he wrote makes 
that perfectly clear.
  When I joined the Senate back in 2009, I arrived here in June, a 
little later than the rest of my class. Just a few days later, my fifth 
day in office, Judge Sonia Sotomayor appeared before the Judiciary 
Committee for her first day of her confirmation hearings for the 
Supreme Court. I have been thinking a lot about Justice Sotomayor's 
hearings because the concern I expressed about the direction of the 
Court back then is just as relevant as today. Back then, almost 8 years 
ago, I voiced concern about it becoming more difficult for Americans 
seeking a level playing field to defend their rights and get their day 
in court, from bringing a discrimination claim to protecting their 
right to vote.
  Back then, I said: ``I am wary of judicial activism and I believe in 
judicial restraint. Yet looking at recent decisions on voting rights, 
campaign finance reform, and . . . other topics, . . . there are 
ominous signs that judicial activism is on the rise.''
  That was my first opening statement, the first opening statement that 
I ever delivered at the first confirmation hearing that I ever 
attended. But in the years that followed, my concerns have proved to be 
justified in one 5-to-4 decision after another. We have seen the 
Roberts Court go out of the way to answer questions not before it, to 
overturn precedents, to strike down laws enacted by Congress, and to do 
all of this at great cost to consumers and to workers and to small 
businesses and to middle-class Americans.
  In decisions such as Shelby County, the Court gutted one of our 
landmark civil rights laws, 5 to 4. During the oral argument, Justice 
Scalia suggested that when the Voting Rights Act had last been passed 
97 to 0 in the Senate, the Senate had done it because of the name of 
the Voting Rights Act. How could you vote against the Voting Rights 
Act? What a great name. He was showing contempt for this body. What is 
more judicially active than overturning a law voted on unanimously in 
the Senate because the Senate just liked the name?
  Of course what that did was get rid of preclearance. What is 
preclearance? Preclearance said that those States that had a history of 
suppressing the votes of minorities had to preclear any new voting law 
with the Justice Department.
  These were States that had a history of suppressing the votes of 
racial minorities. Well, that gets overturned. Boom. States like North 
Carolina, Texas, start passing new laws--voter ID laws. The second 
section of the Voting Rights Act still stayed, so you could appeal to a 
Federal court. But it takes a while to work its way through.
  So finally, in early 2016, a circuit court, the Fourth Circuit I 
believe, ruled that North Carolina had targeted African Americans with 
almost surgical precision to suppress their votes. That is why you have 
preclearance. That is why you want preclearance. But in a 5-to-4 vote, 
preclearance was struck down. That is one 5-to-4 case. Concepcion, a 5-
to-4 decision, allows corporations to force consumers into mandatory 
arbitration. There are a whole host of 5-to-4 decisions that make it 
impossible for people to get into the courts.
  But the most egregious of all 5-to-4 decisions was Citizens United--
another 5-to-4 decision that paved the way for individuals and outside 
groups to spend unlimited sums of money in our elections.
  In each one of those 5-to-4 decisions Justice Scalia sided with the 
majority. So now this body considers replacing him with Judge Gorsuch. 
I think it is important to understand the extent to which he shares 
Justice Scalia's views. Judge Gorsuch's record demonstrates that he is, 
in President Trump's words, a judge very much in the mold of Justice 
Scalia.
  During his time on the Tenth Circuit, Judge Gorsuch has consistently 
ruled in favor of powerful interests. He has sided with corporations 
over workers, corporations over consumers, and corporations over 
women's health.
  A study published in the Minnesota Law Review found that the Roberts 
Court is the most pro-corporate Supreme Court since World War II. If 
the Senate confirms him, Judge Gorsuch guarantees more of the same from 
the Roberts Court, and I do not believe that is a Court that our 
country can continue to afford.
  So I oppose Judge Gorsuch's nomination. I urge my colleagues to take 
a close look at his record of siding with powerful corporate interests 
over average Americans, to consider carefully how he stands to impact 
the Court, and to reject his nomination.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kennedy). The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. MURPHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MURPHY. Thank you, Mr. President.
  Mr. President, confirming a Supreme Court Justice is one of the if 
not the most important responsibilities we have as Senators. It is a 
vote we cast knowing full well that the tenure and the influence of the 
nominee who is before us will likely be greater and much more long-
lasting than our own in the Senate.
  After meeting with Judge Gorsuch and reviewing hours of his testimony 
before the Judiciary Committee, I have decided to oppose his 
nomination, and I come to the floor this evening to talk about the 
reasons why.
  I am deeply concerned about the politicization of the Supreme Court 
and its recent capture by corporate and special interests. I am 
convinced that Judge Gorsuch would exacerbate that slide and continue 
the activist bent of the existing Court, and for that reason I won't be 
supporting him in the vote tomorrow.
  There is no doubt that Neil Gorsuch is a well trained, very 
intelligent lawyer who likely has the right disposition to serve on our 
Nation's highest Court, but that is not the end of the analysis that I 
or any of us are required to conduct. I am concerned about Judge

[[Page 5552]]

Gorsuch's record of putting corporate interests before the public 
interests. His past decisions demonstrate a resistance on his part to 
put victims' and employees' needs above those of large corporations. He 
has regularly sided with employers over workers, corporation's rights 
over the rights of employees to make personal healthcare decisions. 
While he admirably claims to rest his decisions on the law rather than 
his political views, his consistent support for the powerful over the 
powerless doesn't seem coincidental.
  The Roberts Court, in my mind, has swung dramatically in favor of the 
rights of corporations and special interests over those of individual 
Americans. I would have supported a mainstream nominee, but the risk 
that Judge Gorsuch will inject his political judgment over a process 
that already too often favors the rights of corporations over 
individuals is too great a risk for him to earn my support. That was 
the statement I released upon making my decision. I wanted to begin my 
remarks with it.
  I want to talk a little bit about the elements inherent in my 
decision to vote against Judge Gorsuch because I don't take that 
decision lightly. I have said throughout the beginning of President 
Trump's tenure that I do believe we owe some degree of deference to a 
President in making choices as to who will serve him in his 
administration, and I think that likely applies to the question of whom 
a President chooses for the Supreme Court as well. I think I voted that 
way. I certainly voted against many of President Trump's nominees, but 
I voted for many of the nominees with whom I had very deep 
disagreements with over policy as well. So it is not a question of 
whether Judge Gorsuch would be my choice; it is a question of whether I 
think he is going to be in the mainstream on the Supreme Court or 
whether I think he is going to be an outlier and bring potentially 
radical views into the courtroom.
  But it is kind of silly for us to pretend this debate is happening in 
a vacuum. I am making my mind up on Judge Gorsuch, as I will try to 
outline this evening, based upon my review of his record and my belief 
about who he will be as a Justice.
  We would all be lying if we said as Democrats that we don't remember 
what happened on the floor of the Senate all throughout 2016. Merrick 
Garland should be on the Supreme Court today, or if not Merrick 
Garland, someone else who was nominated by President Barack Obama. The 
Supreme Court vacancy occurred with nearly 12 months left in his term--
25 percent of a term that he was elected to by the people of the United 
States. The Constitution doesn't allow for 3-year terms. It doesn't say 
the President becomes illegitimate once he hits the final 12 months. 
The Framers of our Constitution were hopeful that the President would 
be President for all 4 years. That last year was robbed not just from 
President Obama but from the American people by Republicans in the 
Senate when they treated Judge Garland with such disrespect.
  It would have been one thing to simply vote against him because you 
didn't want to let the President of an opposing party fill that seat, 
but to not even give him a hearing, to not give him a vote, to not even 
take meetings with him, which was the decision of many Republican 
colleagues, that was a show of disrespect to Judge Garland that I don't 
think any of us could have imagined. It was a show of disrespect to 
this Chamber, to the traditions of this body that those of us who may 
have supported Judge Garland remember. That bad taste still sits in our 
mouth.
  So I am here to state that my vote against Judge Gorsuch is not 
payback for the way in which Merrick Garland was treated, but I 
remember what happened.
  To the extent that my Republican colleagues are suggesting that we 
should vote for Judge Gorsuch or at least vote for cloture tomorrow as 
a means of upholding the traditions of the Senate--spare me. Spare me. 
There isn't a lot of interest on this side of the aisle in upholding 
the traditions of the Senate if we are the only ones doing it.
  Some people say: Well, if you voted for cloture on Gorsuch tomorrow 
and let it go to a final vote, then maybe Republicans would keep the 
rules as is.
  That is belied by the facts. Last year, the Republican majority made 
it pretty clear that they were willing to break all tradition, all 
precedent, and all comity in the Senate in order to get their person on 
the Supreme Court. That wasn't just a 2016 issue; that is the new 
normal for Republicans in the Senate. So whenever Democrats raised an 
objection to a nominee to the Supreme Court, the rules were going to 
change because Republicans made it clear that their first priority is 
to get their people on the Supreme Court and their second priority is 
to think about and try to preserve the way in which the Senate has run.
  I am not voting against Neil Gorsuch because I am mad about what 
happened, but to the extent that I have heard Republicans in the Senate 
lecture us about violating the traditions of the Senate, it makes my 
blood boil because I was here in 2016. I saw what the Republican 
majority did to Merrick Garland.
  Maybe we can sit down after this is done and talk about how the 
Senate just doesn't get into a giant vortex of devolvement, tit for 
tat, such that all of the reasons why people run for the Senate--the 
individual prerogatives that Senators have, the demand to find 
consensus in a way that doesn't exist in the House--all vanish. Merrick 
Garland is still here, and it would be silly for us to try to pretend 
he isn't.
  One of the reasons I am so worried about Judge Gorsuch is because of 
his enthusiasm for a brand of judicial interpretation called 
originalism. It doesn't sound that radical, right, originalism? The 
idea is that one interprets the Constitution as the Founding Fathers 
intended it to be; one doesn't place it in the context of today. Simply 
think to yourself, what would those White men who wrote those words--
what would they think about the case before us? What did they mean back 
in the late 1700s? On its face, it is an absurd way to think about 
judging cases because so much of what is before a Justice had no 
relevance and did not exist back in the 1780s, so questions about what 
these men thought about various questions regarding technology or civil 
rights are irrelevant because the Framers of the Constitution simply 
weren't thinking about the same things we are thinking about today.
  One of our most famous jurists understood this right from the outset. 
Justice John Marshall wrote in McCulloch v. Maryland: ``We must never 
forget that it is a Constitution we are expounding, intended to endure 
for ages to come and consequently to be adapted to the various crises 
of human affairs.''
  Even those who were judging the Constitution at its outset understood 
that, as the questions presented to this country changed, originalism--
the idea that you only look to the thoughts and words and deeds of the 
Founding Fathers--probably wouldn't be an efficient way to decide 
cases.
  Justice Brennan gave a wonderful speech at Georgetown in 1985 that is 
worth reading tonight. Justice Brennan said:

       We current Justices read the Constitution in the only way 
     that we can: as Twentieth Century Americans. We look to the 
     history of the time of framing and to the intervening history 
     of interpretation. But the ultimate question must be, what do 
     the words of the text mean in our time? For the genius of the 
     Constitution rests not in any static meaning it might have 
     had in a world that is dead and gone, but in the adaptability 
     of its great principles to cope with current problems and 
     current needs.

  He went on to say:

       Time works changes, brings into existence new conditions 
     and purposes. Therefore, a principle to be vital must be 
     capable of wider application than the mischief which gave it 
     birth.

  It is a wonderful turn of phrase.
  He said:

       This is peculiarly true of constitutions. They are not 
     ephemeral enactments, designed to meet passing occasions. 
     They are, to use the words of Chief Justice John Marshall, 
     ``designed to approach immortality as nearly as human 
     institutions can approach it.''

  He said:


[[Page 5553]]

       Interpretation must account for the transformative purpose 
     of the text. Our Constitution was not intended to preserve a 
     preexisting society but to make a new one, to put in place 
     new principles that the prior political community had not 
     sufficiently recognized.

  Senator Klobuchar asked Judge Gorsuch at his hearing if, because the 
Constitution only uses the word ``he'' or ``his,'' it meant that a 
woman could not be President. Well, the Constitution doesn't 
specifically speak to this question, but if you were an originalist, I 
can imagine how many of those Founding Fathers would have answered that 
question. Why? Because they didn't believe that women deserved the 
right to vote, so why on Earth would they believe that a woman should 
be President? At the time, Blacks were considered to be subhuman. They 
were granted three-fifths status in the Constitution. They were slaves. 
To read a document only through the lens of a group of White males who 
did not believe that a woman should be allowed to vote, who did not 
believe that Blacks were human beings and on equal footing with the 
rest of us, is to freeze this document in a time and ask us to, 
consequently, freeze ourselves in that time as well. If you do not 
allow the document to move, then you do not allow the rest of us to 
move either.
  Originalism is a fraud, and what it has become is a mask for 
politics.
  Now, what do I mean by that?
  When you insist on interpreting the Constitution based only on the 
ways in which the writers of that document viewed the world, you have 
no way to base decisions in current times that are based on any real 
text or set of historical facts because, of course, the Founding 
Fathers had given no thought to many of the most important questions 
that are presented to us today--for instance, questions about what 
rights individuals have with respect to government surveillance over 
their cell phones, which is a question that the Founding Fathers--the 
Framers of the Constitution--could never have considered. It allows you 
to, essentially, make it up for yourself because there is no way that 
you can find a quote from any of the signers of the Constitution as to 
what they thought about these modern questions. You can spin it any way 
that you need to.
  Originalism is an invitation to bring politics onto the Court because 
anybody can make up a reason as to why the people who wrote the 
Constitution would, ultimately, have decided the way that that jurist 
wants the decision to turn out.
  It connects with other troubling writings of Judge Gorsuch's. He 
proudly calls himself an originalist. Historically, if we look at the 
broad swath of jurists who have gotten on the Supreme Court, it is not 
a mainstream school of judicial interpretation, but he has other 
radical views as well.
  The Chevron deference standard is named for a 1984 case in which the 
Supreme Court held that it should defer to regulatory agencies when 
they interpret ambiguous laws that are passed by Congress. We pass 
ambiguous laws, sometimes on purpose and sometimes by accident. But we 
often do it on purpose because we, ultimately, leave it to the 
regulator to fill in the details--to proffer regulations, to work out 
the details of enforcement. We often do not define every single term, 
in part, because we know that there is going to be the executive branch 
and people working for an elected official--the President of the United 
States--who are going to carry out that act and, ultimately, be 
responsible to the people.
  What Judge Gorsuch has suggested is that maybe it is time to overturn 
the Chevron deference standard. Maybe we should not give any deference 
to administrative agencies any longer. Maybe the Supreme Court, on 
every single law, should do a de novo review of its constitutionality 
and give no deference to the executive branch.
  First of all, that would be pandemonium. It would greatly accelerate 
the number of cases that come before the Supreme Court and the number 
of major--potentially life-changing--decisions that the unelected Court 
is making. Why? Because we are always passing statutes here that leave 
room for interpretation. Again, we do it many times intentionally and 
sometimes unintentionally, but it happens every single month here that 
we pass statutes that leave room for interpretation.
  We often do that knowing, as I said, that the Executive will make 
some of those secondary interpretations. We are comfortable with that 
because, if his interpretation goes wrong, then that Executive is never 
more than about 3\1/2\ years from an election.
  The executive branch is responsible to the people. The courts are 
not. These are lifetime appointments that we make. If every single 
statute that we pass is interpreted from the foundation by the Supreme 
Court and if they get it wrong, there is no way to get rid of them. 
There is no way to roll that interpretation back. In fact, that is one 
of the reasons for the Chevron deference--the reluctance of the Court 
to make itself an active political player in the process of 
interpreting statutes.
  So it is radical that Judge Gorsuch is suggesting that, if he were 
put on the Supreme Court, he would overturn that 1984 case. Justice 
Scalia was one of the primary defenders of Chevron for that very 
reason, in that he saw that the legitimacy of the Court--indeed, the 
legitimacy of the entire judicial system--would be put in jeopardy if 
it inserted itself as the primary arbiter of ambiguous statutes, of 
statutes that needed interpretation.
  Originalism is an invitation to take your politics onto the Court. 
The evisceration of the Chevron deference would, inherently, make the 
Court a political body. If you combine the two together, you will start 
to see a Justice who will likely continue this trend line of its being 
an activist Court that makes political decisions in substitute of the 
Congress.
  We have all seen it happen, whether it be in the voting rights case, 
in which the unelected Supreme Court decided that racism was not 
something that we had to think about any longer due to their vast 
experience in the South and in dealing with cases of voter suppression, 
or in their arbitrary decision that corruption should be very narrowly 
defined and that we need not pay attention to the slow, creeping 
corruption that happens when donors get access to the political process 
through donations of thousands and tens of thousands and hundreds of 
thousands and millions of dollars. The Supreme Court is telling the 
people of this country and this Congress what corruption is and what it 
is not.
  Those are political decisions that the Court has made--an activist 
Court--that now may have among its members a Justice who has, 
effectively, advertised himself as being willing and eager to join that 
trend line on the Court.
  Individual cases raise concerns as well. In Riddle v. Hickenlooper, 
Judge Gorsuch expressed an openness in providing a higher level of 
constitutional protection to a donor's right to make political 
contributions than the Court currently affords the right to actually 
vote--donors having more rights than voters have.
  As for the result of applying strict scrutiny, which is the term that 
he is referring to with regard to political donations, we do not 
exactly know what would happen, but it likely would have the 
consequence of making it almost impossible to regulate campaign 
finance. Ninety-three percent of Americans, in a recent poll, think 
that government should be working to limit the impact that big donors 
have on politics today. Yet Judge Gorsuch has suggested that, as a 
Supreme Court jurist, he may move the law in the opposite direction, 
robbing from both of us--Republicans and Democrats--the ability to do 
what 93 percent of Americans want us to do, which is to restrict the 
ability of a handful of billionaires to affect the political process.
  In the Hobby Lobby decision, yet again, Judge Gorsuch suggests that 
corporations, in this case, have more rights under the Constitution 
than do the individuals who work for them--that the religious freedom 
rights of the corporation trump the religious freedom rights of 
employees. Once again, it ruled that those with power--big donors or 
corporations--have more rights than those with less power--ordinary 
voters, employees of these big companies.

[[Page 5554]]

  Years ago, Judge Gorsuch wrote in a complaint, according to him, that 
liberals were using the Court to try to push their political agenda 
rather than to bring it here to the Congress. The reality is that, over 
the course of the Roberts Court, the exact opposite has happened. It 
has been Conservatives who have brought their complaints to the court 
system--their complaints about voting rights, their complaints about 
campaign finance, their complaints about the Affordable Care Act--
rather than to have brought them to the floor of this body.
  As the House of Representatives abandons, for the time being, the 
repeal and replacement of the Affordable Care Act, their allies 
continue to push cases through the court system that would attempt to 
unwind it. Judge Gorsuch has been, in his writings at least, blind to 
this idea that Conservatives have spent just as much time over the past 
20 years in trying to push their agenda in court as have Progressives. 
Progressives have done that as well.
  Clearly, we have full marriage rights in this country because of 
court cases that Progressive groups push. I am not denying that there 
is not this trend line on both sides of the political spectrum, but 
Judge Gorsuch seems to only recognize it in his writings when it comes 
to the liberals who are pushing these causes.
  These are the most important decisions we make. Many of us may only 
get to vote on a Supreme Court Justice once or twice. This is my fifth 
year in the Senate, and this is my first vote. My first vote should 
have come in 2016, but it is coming now in 2017. I do not take it 
lightly, but there is a reason--when you go back to your apartment here 
in Washington--that you are watching TV commercials that are paid for 
by big corporations and billionaires who support Judge Gorsuch's 
nomination.
  He says that he is going to play it straight. He says that he is not 
going to be affected by his political agenda. I hope that he is right, 
but the folks who are fronting the money for these ads do not believe 
him. They think they know how he is going to rule. Believe me. They 
would not be putting up all of this money on TV if they did not think 
that Judge Gorsuch was going to be a friend to the big companies, to 
the billionaire donors who want more and more protection through the 
court system.
  Donald Trump was right about something when he ran for President. He 
was not right that elections are rigged, but he was right that, in 
general, the system--our economic state of affairs--does seem to be 
pretty rigged against regular people. Economic mobility, which is how 
we define ourselves as a country, is further away from the people whom 
I represent in Connecticut than ever before, and the statistics bear 
that out.
  Your ability to move from poverty to prosperity is less today than it 
has been at any point in our lifetimes. It does feel like the powerful 
and the rich have recovered very nicely from this recession and that 
nobody else has. It feels like they have a voice here in Washington 
that no one else has either.
  If you are President Trump, having run on this promise to unrig the 
system, boy, this doesn't seem like the person you should be sending to 
the bench, somebody who has openly advertised his enthusiasm for voting 
with billionaires, with corporations, with folks who have lots of 
political power already.
  The TransAm case, which has been talked about enough on the floor, is 
a unique one. It is the case of a trucker who was being potentially 
left to die by his employer on the side of the road, who left his truck 
to save his life and potentially the lives of others on the road, had 
he chosen instead to operate it. Judge Gorsuch ruled with his employer, 
effectively suggesting this man should have risked his life or the 
lives of others to comply with the strict letter of the law.
  Judge Gorsuch was asked in the Judiciary Committee what he would have 
done: What would you have done if you had two options--sit in that 
truck and face death or put it back on the road and potentially kill 
others? What would you have done? Judge Gorsuch said that he hadn't 
thought about it.
  I don't want my Supreme Court Justices to be political. I don't want 
them to be us. It really is our job to think about, in a real, 
tangible, grassroots way, the effect of our laws on their lives. But I 
don't want a Justice who doesn't even contemplate the answer to that 
question, the impact of the law on regular people. I don't want a 
Justice who views the law only through the eyes of a group of White men 
who lived in a fundamentally different world. I don't want a Justice 
who isn't thinking about how the law applies to people who need a 
statute's protection, rather than thinking about those who, frankly, 
don't need the protection of statute because they have been handed a 
pretty good lot in life from the start.
  I am going to oppose cloture tomorrow, and if we eventually get to a 
vote, I will oppose Judge Gorsuch on final passage.
  My final comment is this: When that moment comes, I do hope that our 
colleagues will think twice about changing the rules of the Senate. 
They had already broken with precedent once in 2016 in a way that I 
think is unforgiveable. To do it twice in a 24-month period puts this 
place on a downward spiral that I am not sure we can recover from. If 
we just want to be the House of Representatives, let's just do it. But 
there is another way to go, to select a nominee who could truly get 
bipartisan support.
  As my colleague Tim Kaine is fond of saying, there is only one 
appointment by the President of the United States that needs 60 votes. 
There is only one person the President picks who needs to get more than 
60. That is the Justice of the Supreme Court because it is permanent, 
because it is important, because it lasts longer than we do. There is 
probably good reason for that.
  Precedent and comity were broken in 2016. I will never, ever forget 
the disrespect shown to Judge Garland and to everyone in this body, but 
to double down on that break with precedent, on that break with 
tradition, by changing the rules of the Senate permanently with respect 
to Supreme Court Justices--I know they can say that Democrats did it a 
few years ago. That is true. But the Supreme Court is a different 
animal entirely, and the decision is one I hope my Republican 
colleagues will rethink.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, when Senate Republicans executed their 
unprecedented block of President Obama's nominee Merrick Garland, the 
well-credentialed, well-respected, moderate chief judge of the D.C. 
Circuit, they knew what they were doing. They were willing to set aside 
the history and practice of the Senate to make sure no nominee of 
President Obama's would fill the vacancy created by Justice Scalia's 
death.
  As fate would have it, a Republican won the Presidency and then, the 
majority leader's path was clear. This is exactly what happened: 
President Trump selected Neil Gorsuch from a list put together for him 
by the ultraconservative Heritage Foundation and Federalist Society. 
These organizations selected Judge Gorsuch because they want to 
preserve the conservative 5-to-4 majority of the Roberts Court.
  This majority has done terrible damage to many laws Congress has 
passed to protect ordinary Americans, and has made it more difficult 
for us to pass new laws. My colleagues and I have shined a spotlight on 
these rightwing organizations and the $10 million campaign they have 
run on Judge Gorsuch's behalf because they believe his view of the law 
matches theirs. And therein lies our concern.
  These organizations have spent so much money and worked so hard on 
Judge Gorsuch's behalf because they could trust, perhaps not 100 
percent of the time, but enough of the time, that Judge Gorsuch would 
decide cases in ways they would agree with and support.
  Judge Gorsuch is an Ivy League educated lawyer with 10 years on the 
Federal bench. He is not naive. Even if he refused to acknowledge the 
fact that

[[Page 5555]]

these groups are supporting him, Judge Gorsuch knows as well as we all 
do that politics have a real impact on the kinds of nominees selected 
to serve on the Supreme Court.
  We know he understands this because he said so in his 2005 National 
Review Online article, which was entitled ``Liberals'N'Lawsuits.'' In 
that article, he wrote that because Republicans had won elections for 
the Presidency and for control of the Senate, the Republicans were in 
charge of the judicial appointment process. As a result, he said, ``the 
level of sympathy liberals pushing constitutional litigation can expect 
in the courts may wither over time, leaving the Left truly out in the 
cold.''
  This article demonstrates that Judge Gorsuch understands that judges 
appointed and confirmed by Republicans will have less sympathy for, as 
he put it, ``liberals pushing constitutional litigation.'' Clearly, 
judges do not make decisions divorced from their personal and 
philosophical leanings. However often or however loudly they might 
protest, conservatives understand that their arguments about the narrow 
role of judges--their claims that Justices are there only to modestly 
apply the law and adhere to the Constitution--are bunk. And Judge 
Gorsuch must know this too.
  Nowhere is this brand of conservative judicial activism clearer than 
in the actions of the Roberts Court to reach into our elections to tilt 
the political landscape--with a significant impact on whose votes are 
heard in our political process and who is able to take part in our 
elections.
  Based on his writings, Judge Gorsuch clearly understands the 
relationship between politics and the courts. I am convinced that 
adding Judge Gorsuch to the Roberts Court will only continue the 
Court's intervention into politics.
  The actions of the Roberts Court are clear. This Court has issued a 
series of decisions that have made it easier for conservative 
organizations to spend unlimited and unregulated dark money on 
elections, and that may have made it harder for people to vote, harder 
for people to participate and have those voices heard in the political 
process. These decisions have changed who is able to participate in the 
democratic process, who gets elected, and, in turn, who gets nominated 
to the Supreme Court.
  Justice Felix Frankfurter's famous admonition that ``Courts ought not 
to enter this political thicket'' captures the challenges for courts 
treading into politics. Of course there are times when the courts must 
do so--to ensure one person, one vote, for example. But courts must 
also be careful when wading into politics because the legitimacy of the 
court is itself put at risk.
  The most memorable example, of course, came when the Court 
effectively decided the 2000 Presidential election in Bush v. Gore.
  In the Citizens United and Shelby County decisions, we have seen the 
tremendous damage the Court can do to democracy when it tilts the 
electoral process so heavily against ordinary Americans.
  In the 2010 Citizens United decision, the Roberts Court struck down 
bipartisan laws limiting campaign contributions that went back more 
than a century. This decision opened an unrestrained flow of money and 
potential corruption that has dominated our politics and drowned out 
the voices of ordinary Americans ever since.
  The Court's decision in this case was not an accident. Chief Justice 
Roberts engineered the decision in that case by steering it away from 
the narrow question before the Court about how to apply a particular 
law and into a broad constitutional question. His efforts demonstrate 
that the Supreme Court has broad power and latitude to push and shape 
the law.
  This kind of conservative judicial activism directly contradicts what 
Justice Roberts famously said during his confirmation hearing. He said 
the job of a Justice is to simply call balls and strikes.
  Jeffrey Toobin, in a 2012 article in the New Yorker entitled, ``Money 
Unlimited: How Chief Justice John Roberts orchestrated the Citizens 
United decision,'' and in his recent book, ``The Oath,'' recounts very 
clearly how Chief Justice Roberts engineered this campaign spending 
decision.
  The question originally presented to the Supreme Court in Citizens 
United, according to Toobin's account, was a narrow one. It involved 
whether one of the provisions of the bipartisan McCain-Feingold 
campaign finance law applied to a documentary criticizing a candidate 
and not just to television commercials. In fact, Ted Olson, the well-
known conservative lawyer representing Citizens United, the 
organization that wanted to run the documentary, made a narrow argument 
that the McCain-Feingold law was not meant to apply to that kind of 
documentary. This was an argument based not on the Constitution, but on 
deciding the case before the Court in the narrowest possible way. Such 
a decision would have been restrained.
  It became clear during oral arguments that the conservatives on the 
Court had the opportunity not just to apply the law, but to change it 
entirely. Chief Justice Roberts and the other conservative Justices on 
the Court began to do this by aggressively questioning the government's 
lawyer on issues not then directly before the Court. As Toobin 
describes, ``Through artful questioning, Alito, Kennedy, and Roberts 
had turned a fairly obscure case about campaign-finance reform into a 
battle over governmental censorship.''
  Now that it was clear to Chief Justice Roberts that there was a 
majority on the court for making a broader constitutional decision, he 
ordered that the case be reargued, rather than simply deciding the 
narrow question argued by both Olsen and the government's attorney. 
Chief Justice Roberts wanted the Court to take head-on a question that 
was not in fact before it and which the Court had decided the opposite 
way only 6 years before. When the Roberts Court decided Citizens United 
the following year, after reargument, it did so on the broadest 
possible ground--unconstitutional grounds--and found that corporations, 
like people, have First Amendment rights. It found that these rights 
could be violated by limits on campaign contributions.
  Again, this outcome did not happen by accident; Chief Justice Roberts 
engineered the result. According to Toobin's account, Chief Justice 
Roberts chose to assign the opinion for the majority to Justice 
Kennedy, who was known to be very skeptical of campaign finance laws 
and believed that limits on campaign spending violate free speech. By 
doing so, Chief Justice Roberts ensured that the Citizens United 
decision would be a broad one, and it was.
  The way the Court chose to reach out and change the law was wholly 
unnecessary to decide the case at hand. And it certainly was not 
judicial restraint; it was judicial activism. The Court in Citizens 
United reached out to overturn precedent and upend laws dating back 
more than a century to find new rights for corporations to funnel 
untold millions into our political system.
  This decision also severely limited the ways in which Congress could 
take action to continue to pursue the aims of campaign finance laws to 
limit political corruption.
  In his article, Mr. Toobin said:

       [Citizens United] reflects the aggressive conservative 
     judicial activism of the Roberts Court. It was once liberals 
     who are associated with using the courts to overturn the work 
     of the democratically elected branches of government, but the 
     current Court has matched contempt for Congress with a 
     disdain for many of the Court's own precedents.
       When the Court announced its final ruling on Citizens 
     United, on January 21, 2010, the vote was five to four and 
     the majority opinion was written by Anthony Kennedy. Above 
     all, though, the result represented a triumph for Chief 
     Justice Roberts. Even without writing the opinion, Roberts, 
     more than anyone, shaped what the Court did.

  But the Roberts Court was not done with its activism to radically 
change the landscape of our elections. In another narrow 5-to-4 
decision in Shelby County in 2013, the Court substituted its 
conclusions for that of Congress and gutted core protections of the 
Voting Rights Act--protections which were essential for the right to 
vote for millions of Americans. Again, this was not a decision the 
Court needed to or should have reached. And again, it was

[[Page 5556]]

a decision engineered by Chief Justice John Roberts and the 
conservative majority on the Supreme Court.
  Back in 1982, Chief Justice Roberts--then a special assistant to the 
Attorney General--was the point person for the Reagan administration's 
opposition to strengthening the Voting Rights Act. At that time, 
Congress acted to fix a hole in the Voting Rights Act that the Supreme 
Court had opened in a 1980 decision. John Roberts was opposed to these 
efforts to make clear that election practices or procedures that result 
in discrimination, not only those with the intent to discriminate, 
violate the Voting Rights Act.
  In 1982, Congress successfully passed their fix over the objections 
of John Roberts and the Reagan administration. If you look at John 
Roberts' memos and articles from that period of time--in which he was a 
strong advocate within the administration for the position it took--his 
view of the Voting Rights Act was clear. It was a view he would apply 
years later as Chief Justice of the Supreme Court when he led a 5-to-4 
majority to gut section 5 of the Voting Rights Act.
  The preclearance provisions of section 5 mandated that any changes to 
voting laws in States with a long history of discrimination have to be 
approved in advance--or precleared--by the Justice Department or by the 
D.C. district court. These provisions, passed a century after the 
conclusion of the Civil War, for the first time effectively guaranteed 
the rights protected by the 14th and 15th Amendments in many parts of 
the country. Section 5 changed the landscape of our democracy and 
opened the door for millions of people to exercise their right to vote.
  These provisions of the Voting Rights Act were reauthorized nearly 
unanimously by Congress in 2006. Before reauthorizing the Voting Rights 
Act, the Senate Judiciary Committee alone held nine hearings on it. The 
thousands of pages of material the Senate reviewed, together with the 
record developed in a dozen hearings in the House, clearly established 
why it was so important to maintain preclearance in order to protect 
the right to vote in jurisdictions with a long history of voting 
discrimination.
  Yet, in Shelby County, the Roberts Court ignored this evidence and 
the Court's long precedent. The Court made its own determination about 
the value of the extensive evidence reviewed by Congress and struck 
down these core provisions. The Court refused to defer to the extensive 
findings and determination of Congress even though Congress is 
expressly charged by the 14th and 15th Amendments to enforce the 
guarantees of those Amendments--the guarantee of the right to vote. The 
Court did what John Roberts fought to do years before and weakened the 
Voting Rights Act. So much for judicial restraint. So much for just 
calling balls and strikes.
  A Justice and a Court devoted to judicial restraint, with an 
understanding of the separation of powers, never would have ignored 
Congress acting at the height of its constitutional powers and its 
factfinding capacity. Yet Chief Justice Roberts and the narrow 
conservative majority on the Court chose to act--to reach out and to 
gut one of the core protections of the fundamental right to vote.
  We now know that Congress got it right and the Supreme Court got it 
wrong in its judgment about the continuing need for section 5 of the 
Voting Rights Act. Immediately after the Shelby County decision, 
numerous States previously covered by section 5 immediately passed 
onerous voter ID laws and other barriers that affected the right to 
vote of millions of people. Some of these laws were even enacted with 
discriminatory intent, not just discriminatory effect--in other words, 
they were blatantly meant to discriminate in voting.
  These newly raised barriers had a clear impact in last year's 
elections. For the first time in two generations, thanks to the actions 
of the Roberts Court, we risk unraveling the progress my friend John 
Lewis fought for alongside so many others during the civil rights 
movement.
  During his confirmation hearing, I asked Judge Gorsuch about the 
Shelby County decision, since he often explained the constraints on his 
approach to judicial decision making in terms of the separation of 
powers. He said several times that judges make terrible legislators, 
that courts lack the staff, capacity, and training to do the kind of 
factfinding that is an essential part of the legislative process. Yet, 
when I asked him whether the Court's decision in Shelby County raised 
the kinds of concerns he had noted about the limits of judges as 
policymakers and legislators, he declined to answer.
  But this is about more than Judge Gorsuch's refusal to answer. It is 
about more than the narrow view he expressed of the role of a judge or, 
particularly, a Justice--a narrow view that is not a reflection of the 
real world. Both the process and the outcome in Shelby County and in 
Citizens United raised exactly the kinds of concerns that make it so 
important for the Senate to understand Judge Gorsuch's judicial 
philosophy before putting him on the Supreme Court. Judge Gorsuch would 
become part of a newly empowered 5-to-4 conservative majority on the 
Roberts Court, which has been anything but restrained in moving the law 
for the benefit of corporations and against individual rights.
  Taken together, these two decisions, Citizens United and Shelby 
County, have made it harder for millions of Americans to have their 
voices heard in our election process and their votes counted at the 
ballot box. Since Citizens United, the floodgates have opened to 
unfettered corporate money in our elections. Since Shelby County, 13 
States have enacted laws placing limitations on voting. Many of these 
are in States that would have been prevented from doing so in the first 
place before the Court gutted section 5 of the Voting Rights Act. After 
Shelby County, these States could pass such laws, and they did, 
disenfranchising tens of thousands of voters in the process.
  My Democratic colleagues and I asked Judge Gorsuch many questions to 
try to understand his pattern of narrowly interpreting laws meant to 
protect individual rights or worker safety in ways at odds with the 
law's purpose. For example, the narrow interpretation Judge Gorsuch 
took on the Individuals with Disabilities Education Act, IDEA, would 
have left Luke Perkins and thousands of special needs children like 
Luke without a chance to make educational progress. His interpretation 
was so at odds with the purpose of the IDEA law that the Supreme Court 
unanimously rejected and criticized Judge Gorsuch's narrow standard in 
a case they decided just a few weeks ago.
  Time and again, Judge Gorsuch threw up his hands and told us that if 
we disagreed with this narrow reading of the relevant law, that 
Congress should do better. In his view, the problem was not the Court--
which he seemed to cast as an innocent bystander--but, rather, the way 
Congress had written the law.
  By tilting the political playing field so heavily toward corporations 
and unfettered dark money and against individuals, the Roberts Court 
has impacted the composition of who is in Congress. The Court has made 
it even harder for Congress to take meaningful action to, say, pass 
laws to protect workers' safety or the access of students with special 
needs to an education. In turn, these decisions have had a real-world 
impact by changing who gets to participate in the political process and 
therefore who gets elected and who has input on the kinds of laws that 
are passed--and, of course, who gets nominated to the U.S. Supreme 
Court.
  The actions of the Roberts Court in Citizens United and Shelby County 
make clear the stakes of the Gorsuch nomination. They make clear what 
the Senate Republicans had in mind in their unprecedented and arrogant 
refusal to consider President Obama's nomination of Merrick Garland to 
the Supreme Court. They wanted, instead, a Justice like Judge Gorsuch 
who would continue the rightward march of the 5-to-4 conservative 
majority on the Roberts Court. And the United States Senate should not 
allow this brazen gambit to succeed.
  I urge my colleagues to oppose this nomination.

[[Page 5557]]

  I yield the floor.

                          ____________________