[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5652-5687]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     EXECUTIVE CALENDAR--Continued


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. McCONNELL. Mr. President, the Senate has considered the 
nomination of Judge Neil Gorsuch for many weeks now. We have seen his 
impressive credentials. We have reviewed his incredible record. We have 
heard glowing praise on a nearly daily basis from colleagues and 
students, from judges and newspaper editorials, from Democrats and from 
Republicans.
  Judge Gorsuch is independent, and he is fair. He is beyond qualified, 
and he will make a stellar addition to the Supreme Court.
  Hardly anyone in the legal community seems to argue otherwise, and 
yet, our Democratic colleagues appear poised to block this incredible 
nominee with the first successful partisan filibuster in American 
history. It would be a radical move, something completely unprecedented 
in the history of our Senate and out of all proportion to the eminently 
qualified judge who is actually before us. But then again, this isn't 
really about the nominee anyway. The opposition to this particular 
nominee is more about the man who nominated him and the party he 
represents than the nominee himself. It is part of a much larger story, 
another extreme escalation in the left's never-ending drive to 
politicize the courts and the confirmation process.
  It is a fight they have waged for decades with a singular aim: 
securing raw power, no matter the cost to country or institution. It 
underlies why this threatening filibuster cannot be allowed to succeed 
or continue--for the sake of the Senate, for the sake of the Court, and 
for the sake of our country.
  I think a look back through history will help every colleague 
understand why. I always had a particular interest in the history of 
judicial nominations. It is an interest that predates my service here 
as a Senator. I remember serving on the staff of a Senator on the 
Judiciary Committee during a time when two different judicial nominees 
were being considered. One, Harrold Carswell, was voted down on the 
Senate floor--correctly, in my view. Another, Clement Haynesworth, also 
failed to receive the necessary support for confirmation--but in error, 
I thought.
  It piqued my interest on what advice and consent should mean in the 
Senate, and what it actually meant in practice. I would learn later 
that I was witnessing the nascent stirrings of what would soon become 
the so-called judicial wars--the left's efforts to transform 
confirmations from constructive debates over qualifications into raw 
ideological struggles with no rules or limits.
  It is a struggle that escalated in earnest when Democrats and 
leftwing special interests decided to wage war on President Reagan's 
nominee in 1987, Robert Bork. Polite comity went out the window as 
Democrats launched one vicious personal attack after another--not 
because Bork lacked qualifications or suffered some ethical failing, 
but because his views were not theirs. The Washington Post described it 
at the time: ``It's not just that there has been an intellectual 
vulgarization and personal savagery to elements of the attack, 
profoundly distorting the record and the nature of the man.''
  As NPR would later observe, the left's ``all-out campaign to defeat 
the nomination . . . legitimized scorched-earth ideological wars over 
nominations at the Supreme Court.''
  I was there. I saw it all. I remember the viciousness of it. I also 
remember feeling that the Senate was reaching a turning point where a 
judicial nominee would no longer be evaluated on their credentials but 
on their ideology. That observation, unfortunately, has proven correct, 
with Democrats raising the stakes and moving the goalposts each step of 
the way.
  They certainly did so under the next Republican President, George 
H.W. Bush. We all know what happened to Clarence Thomas. If the gloves 
were off for Bork, the brass knuckles came out for Thomas. Here is how 
left-leaning columnist Juan Williams described the situation: ``To 
listen or read some news reports on Thomas over the past month is to 
discover a monster of a man, totally unlike the human being full of 
sincerity, confusion, and struggles whom I saw as a reporter who 
watched him for some 10 years.''
  That is Juan Williams speaking on Clarence Thomas. Williams said:

       He has been conveniently transformed into a monster about 
     whom it is fair to say anything, to whom it is fair to do 
     anything.

  By the time Bill Clinton won the Presidency, ``Bork'' had become a 
verb and ``high-tech lynching'' was on the lips of the Nation. Wounds 
were fresh and deep when this Democratic President had the chance to 
name two Justices of his own to the Court.
  Republicans could have responded in kind to these nominees, but that 
is not what happened. When President Clinton nominated Ruth Bader 
Ginsburg, the Senate confirmed her 96 to 3. When President Clinton 
nominated Stephen

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Breyer, the Senate confirmed him 87 to 9. I, like the vast majority of 
Republicans, voted for both of them. We did so in full knowledge of the 
considerable ideological differences between these nominees and 
ourselves. Ginsburg, in particular, had expressed notably extreme 
views--even advocating for the abolition of Mother's Day. A nominee for 
the Supreme Court who advocated the abolition of Mother's Day was 
confirmed 96 to 3.
  Could we have Borked these nominees? Could we have tried to 
filibuster them? Sure, but we didn't.
  We resisted the calls for retribution and did our level best to halt 
the Senate's slide after the Bork and Thomas episodes. We respected the 
Senate's tradition against filibustering Supreme Court nominees.
  Now, the tradition not to filibuster extended beyond just the Supreme 
Court. When President Clinton named two highly controversial nominees 
from California to the Ninth Circuit, some on my side wanted to defeat 
their nominations with a filibuster. The Republican leadership said: 
Let's not do that. To their great credit, Majority Leader Lott and 
Judiciary Chairman Hatch implored our confidence not to do that. 
Senator Lott filed cloture on these nominees to advance the nomination. 
He, Senator Hatch, and I and a vast majority of the Republican 
Conference voted for cloture to give them an up-or-down vote. We didn't 
do this because we supported the nominees. In fact, most of us voted 
against their actual confirmation, but we thought they deserved an up-
or-down vote. That, after all, was the tradition of the Senate.
  Given that we were in the majority and these nominations were highly 
controversial, our determination not to filibuster but instead advance 
them to an up-or-down vote was not, as you might imagine, popular with 
our base. But we resisted the political pressure. Again, we respected 
the Senate's tradition against filibustering judicial nominees.
  But it would matter little to our Democratic friends.
  Less than a year later, President Bush 43 comes to office. Before he 
had submitted a single judicial nominee, our Democratic colleagues held 
a retreat in Farmington, PA. There, according to participants, they 
determined to change the ground rules for how they would handle 
judicial nominees.
  As the New York Times reported, Democrats apparently decided ``there 
was no obligation to confirm someone just because they are scholarly.'' 
Our friend the Democratic leader said at the time that what he and his 
colleagues were ``trying to do was set the stage'' for yet another 
escalation in the left's judicial wars.
  Senate Democrats soon became the majority in the Senate due to then-
Senator Jeffords' party switch. To help implement the imperative from 
their retreat ``to change the ground rules,'' the current Democratic 
leader used his position on the Judiciary Committee to hold a hearing 
on whether ideology should matter in the confirmation process.
  Now, it won't surprise you that the conclusion he and his colleagues 
reached was that it should. So they killed in committee, either through 
inaction or via committee vote, qualified judicial nominees who did not 
fit their preferred ideology. I know, because I was on the committee 
then. Eighteen months later, our Democratic colleagues lost control of 
the Senate, and, therefore, control of the Judiciary Committee. Our 
colleague, the current Democrat leader, again took center stage.
  The New York Times noted that ``over the last two years, Mr. Schumer 
has used almost every maneuver available to a Senate Judiciary 
Committee member to block the appointment'' of the Bush administration 
judicial nominees. Then, in 2003, according to the New York Times, he 
``recommended using an extreme tactic, the filibuster,'' to block them.
  ``Mr. Schumer,'' it said, ``urged Democratic colleagues in the Senate 
to use a tactic that some were initially reluctant to pursue, and that 
has roiled the Senate: a filibuster on the floor of the chamber to 
block votes on nominees that he and other Democrats had decided to 
oppose.''
  It is hard to express how radical a move that was at that time 
because it completely changed the way the Senate had handled these 
nominations for our entire history. Even filing cloture on a judicial 
nominee had been rare before then, and actually defeating any judicial 
nominee by filibuster, other than the bipartisan opposition to the 
nomination of Abe Fortas back in 1968, in a Presidential election year 
was simply unheard of.
  No longer.
  Democrats blocked cloture 21 times on 10 different circuit court 
nominees, including on outstanding lawyers like Miguel Estrada, whose 
nomination was filibustered an incredible 7 times.
  These are not inflated statistics like the supposed 78 filibusters 
our Democratic colleagues are now alleging occurred during the Obama 
administration, which include numerous instances in which the prior 
Democratic leader unnecessarily filed cloture petitions. No, what I am 
talking about are real and repeated filibusters used by Democrats to 
defeat nominations.
  In the face of this wholly unprecedented change in the norms and 
traditions of the Senate, we Republicans contemplated using the nuclear 
option. We decided against it. Fourteen colleagues--three of whom still 
serve in this body--reached an accord whereby filibusters would be 
overcome for 5 of the 10 nominees in question. Regretfully, Miguel 
Estrada was not one of them. He had withdrawn his nomination after 
being put through an unprecedented ordeal.
  Yet, the ink was barely dry on the accord I mentioned when Senate 
Democrats, led, in part, by our friend the Democratic leader, again did 
something exceedingly rare in the nominations process: They tried to 
filibuster Samuel Alito's nomination to the Supreme Court. No member of 
the Republican Conference, by the way, has ever voted to filibuster a 
Supreme Court nominee--ever. Nobody on this side of the aisle has ever 
done that.
  Again, it would have been easy for Republicans to have retaliated 
when President Obama took office, but just like under Clinton, that is 
not what happened. How did we treat Obama's lower court nominees?
  At the time, our Democratic colleagues decided to ``fill up the D.C. 
Circuit one way or the other,'' as the Democratic leader put it. Senate 
Republicans had defeated a grand total of two of President Obama's 
judicial nominees. At the time that they decided to employ the nuclear 
option and fill up the D.C. Circuit, Senate Republicans had confirmed 
215 Obama judges and had defeated just 2.
  So our Democratic colleagues' decision to employ the nuclear option 
in 2013 was not in response to rampant obstruction but was, in the 
words of the Washington Post, a ``power play.'' By the way, at the 
time, I don't recall the Democratic leader or any other of our 
Democratic colleagues repeating the refrain: If there are not 60 votes 
for a nominee, you don't change the rules; you change the nominee.
  They were not saying that then.
  What did they do? They changed the rules. It was a power play, but it 
was also something else. It was a tacit admission by our Democratic 
colleagues that the Senate tradition of up-or-down votes of judicial 
nominees that they had first upset back in 2003 by starting the 
practice of filibustering judicial nominees was a tradition they should 
have respected. Unfortunately, it took them 10 years to realize this 
and only after they captured the White House and only after Republicans 
also used, on a smaller scale, the tool that they, themselves, 
inaugurated a decade earlier.
  And how did we treat President Obama's Supreme Court nominees? Did we 
try to filibuster them like our Democratic colleagues tried with 
Justice Alito? Of course not.
  When President Obama nominated Sonia Sotomayor and Elena Kagan, we 
treated both nominees fairly, as they would later say themselves, and 
we secured an up-or-down vote for both. Most Republicans had 
significant misgivings about these nominees. Many of

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us voted no on the confirmations, but we did not think it would be 
right to deny them up-or-down votes.
  I and the ranking member of the Judiciary Committee at the time, Jeff 
Sessions, even protested when then-Democratic Leader Reid tried to file 
cloture on the Kagan nomination because we were determined to prevent 
even the hint of a filibuster. Again, we respected the Senate's 
tradition against filibustering Supreme Court nominees.
  I know our friends on the Democratic side will be quick to interject 
with a predictable protest about last year, though they seem to forget 
their own position on the issue. When Justice Scalia passed away, the 
Senate chose to follow a standard that was first set forth by then-
Senator Biden, when he was chairman of the Judiciary Committee, and 
then was expanded upon by the current Democratic leader, himself. The 
Senate exercised its constitutional advice and consent role by 
withholding its consent until after the election so that the next 
President, regardless of party, could select a nominee. It is a 
standard I held to even when it seemed inevitable that our next 
President was going to be Hillary Clinton. It is also a standard that 
President Obama's own legal counsel admitted that Democrats would have 
followed themselves had the shoe been on the other foot.
  The majority of the Senate expressed itself then by withholding 
consent.
  The majority of the Senate wishes now to express itself by providing 
consent to Judge Gorsuch.
  The bipartisan majority that supports him cannot do so if a partisan 
minority filibusters. They are prepared to do so for the first time in 
American history, and the Democratic leader has mused openly about 
holding this seat vacant for an entire Presidential term.
  We will not allow their latest unprecedented act on judicial 
nominations to take hold. This will be the first and last partisan 
filibuster of a Supreme Court nomination.
  All of this history matters. I know the Democratic leader would 
rather not revisit the circumstances that brought us to this moment. I 
know the Democratic leader would rather not talk about it. Of course, 
he doesn't want to talk about it. He and his party decided to change 
the ground rules for handling judicial nominations.
  He and his party pioneered the practice of filibustering lower court 
judicial nominees. He and his party launched the first partisan 
filibuster of a Supreme Court nominee. He and his party deployed the 
nuclear option in 2013. Now they are threatening to do something else 
that has never been done in the history of the Senate: successfully 
filibuster a Supreme Court nominee on a purely partisan basis.
  For what reason--because he is not qualified or because he is not fit 
for the job? No, it is because he was nominated by a Republican 
President.
  This is the latest escalation in the left's never-ending judicial 
war--the most audacious yet. It cannot and it will not stand.
  There cannot be two sets of standards--one for the nominees of 
Democratic Presidents and another for the nominee of a Republican 
President. The Democratic leader, essentially, claimed yesterday that 
Democratic Presidents nominate Justices who are near the mainstream but 
that Republican Presidents nominate Justices who are far outside the 
mainstream.
  In what universe are we talking about here?
  I would say to my friend from New York that few outside of Manhattan 
or San Francisco believe that Ruth Bader Ginsburg is in the mainstream 
but that Neil Gorsuch is not.
  To quote a long-time Democrat and member of the left-leaning American 
Constitution Society, there is simply no principled reason--none--to 
vote no on Judge Gorsuch's nomination, even less of one to block that 
vote from occurring at all.
  Let me say this to my Democratic colleagues: If you truly cannot 
support the nomination of this eminently qualified nominee, then at 
least allow the bipartisan majority of the Senate who supports Gorsuch 
to take an up-or-down vote. You already deployed the nuclear option in 
2013. Do not trigger it again in 2017.


                       Reservation of Leader Time

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
leadership time is reserved.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until the cloture vote on the Gorsuch nomination will be equally 
divided between Senators Grassley and Feinstein or their designees.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I was going to ask unanimous consent to 
that extent. I guess you have already announced that it is in place; is 
that right? I am going to add something to what the Acting President 
pro tempore just said, so let me start over again.
  I ask unanimous consent that the time until 10:45 a.m. be equally 
divided between Senator Feinstein or her designee and myself or my 
designee and that the time from 10:45 a.m. to 11 o'clock be reserved 
for Senator Schumer's leader remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask for a clarification. Is the 
remaining 17 or 18 minutes equally divided?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. GRASSLEY. Mr. President, that is what my unanimous consent 
request said.
  Mr. DURBIN. Mr. President, I just wanted to get more specific. I am 
not questioning what the Senator asked for.
  Do we have 9 minutes each or 8 minutes each?
  Mr. GRASSLEY. I will probably need more than 9 minutes, but I will 
put the rest of my statement in the Record.
  Mr. DURBIN. So will I.
  Mr. President, I defer to the chairman of the committee if he would 
like to speak first.
  Mr. GRASSLEY. Mr. President, within the next hour or so, we will 
learn whether the minority will come to their senses or whether they 
will engage in the very first partisan filibuster of a Supreme Court 
nominee. All indications are that they are committed to their course. 
That is unfortunate. It truly is.
  The question one has to ask is this: What, exactly, is so 
objectionable about this nominee that he should be subjected to the 
first partisan filibuster in U.S. history? Is he, really, not well 
qualified?
  He attended Columbia for his bachelor's, Harvard for law school, 
Oxford for his doctorate. He clerked for not one--but two--Supreme 
Court Justices. He has spent over 10 years on the circuit court and has 
heard 2,700 cases. It is clear, then, that he is extremely well 
qualified.
  So what is it? What makes this nominee so objectionable?
  The truth is, throughout this process, the minority, led by their 
leader, has been desperately searching for a justification for their 
preplanned filibuster. Over the course of the last couple of months, 
they have trotted out one excuse after another, but nothing will stick.
  They said he isn't mainstream, but that is not true. Everyone from 
Obama's Solicitor General to Rachel Maddow has said he is mainstream. 
They said he isn't independent, but everyone knows he is an independent 
judge. He is his own man, and he understands the role of a judge.
  Then they roll out this ridiculous argument that he is for the big 
guy and against the little guy. Even liberal law professors like Noah 
Feldman made fun of that attack. He called it ``a truly terrible 
idea.'' Then they said we should hold him responsible for the legal 
positions he took on behalf of the U.S. Government. The only problem 
there is, we have had a lot of nominees who have represented the U.S. 
Government. They worked for it; the government was their client. The 
other side certainly didn't want to hold Justice Kagan responsible for 
taking the truly extreme position as Solicitor General that the U.S. 
Government was constitutionally permitted to ban pamphlets. So that 
argument fell flat as well.
  Then, of course, after they ran out of substantive arguments against 
the

[[Page 5655]]

judge and his record, they resorted to attacks on his supporters or the 
President who nominated him or the selection process, anything--
anything--to distract from the judge and the stellar record he has.
  They trotted out this absurd claim that we should reject the judge 
not because of some opinion he has written but because those who 
support his nomination have the gall to actually speak out and make 
their voices heard, except they forgot to check with their own 
supporters first to make sure none of them are spending so-called dark 
money. Of course, they are spending money on issue advocacy, just as 
the law permits and the Constitution protects under the First 
Amendment.
  As we all know, issue advocacy during Supreme Court nominations is 
absolutely nothing new. Those who are complaining about issue advocacy 
today don't seem to remember the TV ads the far left ran attacking 
Judge Bork in 1987. I remember those ads. I remember the ads the left 
ran against Justice Thomas as well. Of course, outside groups on the 
left have attacked every Republican nominee since.
  So expressing selective outrage over issue advocacy doesn't advance 
their cause either, but they still keep it up.
  Finally, the talking point we have heard repeated most often over the 
last 24 hours is that Candidate Trump ``outsourced'' his selection 
process to conservative groups. I must say, I find that argument the 
oddest of all. It is the kind of thing Justice Scalia would call ``pure 
applesauce.''
  The President didn't outsource the selection process to conservative 
groups. He made his list public for the entire country to review during 
the campaign--the first President to do that. If anything, he 
outsourced the selection process to whom? The voters--the American 
people.
  So what do you do? You are out of substantive arguments from the 
other side. Even shots fired at the judge's supporters somehow 
boomerang back and hit your own advocacy groups. We have seen all of 
this before. I have been through a few of these debates over the years. 
When a Republican occupies the Oval Office, the nominees may change, 
but the attacks remain the same.
  You will hear today the same poll-tested catch phrases we have all 
heard time and again. You will hear words and phrases like ``outside 
the mainstream,'' ``far right,'' and ``extreme.'' Invariably, these are 
words the left tries to pin on every nominee of a Republican President 
and the people he submits to the Senate. With each nominee, the 
playbook on the left seems to be the very same. The nomination process, 
it seems, is a desperate attempt to retell the same old preordained 
narrative.
  As I have said, those of us who have been through a few of these 
episodes have heard it all before, and we are going to hear it in the 
next few hours again, but this time something is very different. This 
time, they intend to use the same old preordained narrative to justify 
the first partisan filibuster in the 220-year history of the United 
States. Of course, this result was preordained because as the minority 
leader said weeks before the President was even sworn into office, 
``it's hard for me to imagine a nominee that Donald Trump would choose 
that would get Republican support that we [Democrats] could support.''
  You have already committed to the far left that you will launch the 
first partisan filibuster in U.S. history. So you are stuck. You have 
to press forward, don't you, even though you know the effort is doomed 
to fail. You know he will be confirmed, and you know in your heart of 
hearts he deserves to be confirmed. That is why this is an especially 
sad state of affairs, and I hope my colleagues will change their minds.
  At the end of the day, we are left with an exceptional nominee, with 
impeccable credentials and broad bipartisan support. In short, we have 
in Judge Gorsuch a nominee who proves without a doubt that the minority 
leader would lead a filibuster against anyone nominated by this 
President. That is unfortunate because it is not the way it has to be, 
but it is a situation we cannot accept.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The minority whip is recognized.
  Mr. DURBIN. Mr. President, for 3 straight days, the Senate Republican 
leader has come to the floor and has given us a history of Presidential 
nominations to the Supreme Court, but clearly an investigation is 
necessary. There must have been a hacking into his computer because he 
can't print the name ``Merrick Garland'' to include in his speech. The 
Senator from Kentucky, the Republican leader, has failed to mention 
that name because that name is the reason we are in this spot today.
  When Justice Antonin Scalia passed away, President Obama exercised 
his constitutional responsibility to send a nominee to the Senate to 
fill the vacancy on the Supreme Court. For the first time in the 
history of the Senate--for the first time ever--this Republican-led 
Senate refused to give this nominee a hearing and a vote. It had 
never--underline the word ``never''--happened before.
  Was the reason that he was unqualified? Of course not: he was 
unanimously ``well qualified,'' serving on the D.C. Circuit Court. The 
reason was stated clearly by Senator McConnell: We are going to place a 
bet that the next President will be a Republican, and we will let them 
fill this vacancy.
  When the Republicans come to the floor, as they have this morning 
talking about the politicization of this process, the reason we are 
here, when we should be celebrating the 1-year anniversary of Merrick 
Garland on the Supreme Court, is because they kept that position vacant 
so it could be filled by a Republican President. That is exactly why we 
are here today.
  This notion that it is somehow fanciful that the choice of Neil 
Gorsuch was made by outside groups is belied by the very words of the 
President himself, who thanked the Federalist Society and the Heritage 
Foundation--two special interest, Republican organizations--for giving 
him a list of nominees for the Supreme Court. It was very open and 
public, and there was gratitude--political gratitude--that they came up 
with the name Neil Gorsuch. That is a fact.
  When we look at the history that has led us to this moment, the 
Senator from Kentucky, the Republican leader, has to accept what is 
clear. In the history of the United States of America, until Senator 
McConnell's days under President Obama, exactly 68 nominees had been 
filibustered. Under Senator McConnell and the Republicans, 79 nominees 
of President Obama's were filibustered. It was an abuse of the 
filibuster never seen before in the history of our Nation, and it was 
that abuse of the filibuster and statements made that they would leave 
vacancies on critical courts, like the D.C. Court of Appeals, there 
forever and ever amen, that led to the decision 4 years ago to say that 
we would employ a change in the rules so we could finally fill these 
court positions--finally break the filibuster death grip--which Senator 
McConnell brought to this Chamber in a way never before seen in 
history.
  So the Senator from Kentucky has made history. He comes to the floor 
every day and tells us history. He made history in the number of 
filibusters he used on this floor. He made history in denying a 
Presidential nominee the opportunity for a hearing and a vote, which 
had never--never--happened before in the history of the United States. 
Talk about partisanship.
  When it comes to Judge Gorsuch, I read his cases. I sat through the 
hearings. I was in the Senate Judiciary Committee. We took a measure of 
the man. He was careful to avoid any question that he could when it 
came to his position on cases and issues and values, and that is not 
unusual. Supreme Court nominees do that.
  So we tried to look at his cases. What do the cases that he decided 
reveal about the man? Two or three cases came right to the front. The 
first involved the sad story of a frozen truckdriver on Interstate 88 
outside of Chicago in January a few years back. It was 14 degrees below 
zero, and the brakes on his trailer froze. He pulled to the side of the 
road, called his dispatcher who said: Stay with the truck.

[[Page 5656]]

We are sending somebody. Hours passed. He was going through 
hypothermia. He was freezing. He called the dispatcher and said: I have 
to do something. He said: You either drive this disabled truck out on 
the interstate and take your best chances or you stick with the truck. 
He decided to unhitch the trailer and drive to a gas station, gas up 
and warm up, and come back. For that he was fired.
  Seven judges looked at that case to decide whether it was fair to 
fire Alphonse Maddin. Six of the judges said: No, he did the right 
thing. One judge said: I rule for the trucking company that fired him--
Neil Gorsuch, the nominee for the Supreme Court.
  In the Hobby Lobby case, the decision was basic, who should decide 
the healthcare of thousands of workers. Well, the Green family who owns 
Hobby Lobby said: Our religious beliefs should dominate. We should 
decide family planning and birth control for our employees and their 
health insurance. Judge Gorsuch said: That is right because they own a 
corporation, and a corporation is a person, and as a corporation, they 
can have sincere religious beliefs. It was a choice between a corporate 
ownership of a family and 13,000 employees and their own personal 
religious rights, and Judge Gorsuch ruled for the corporation.
  Kansas State University. A Kansas State University professor, Grace 
Hwang, after working there for many years, was diagnosed with cancer 
and had to go through a bone marrow transplant. She took 6 months off. 
Then, when she was called back to work, she called the university and 
said: I understand there is an influenza outbreak on campus, and I am 
afraid, after having just had a bone marrow transplant, to be exposed 
to influenza at this point. They said: You either come back and teach 
or you are fired. She didn't come back. They fired her. It was Judge 
Gorsuch who said their employer was right; Kansas State University was 
right.
  Those are insights into the values of a man who wants a lifetime 
appointment to the U.S. Supreme Court, the highest Court in the land. 
The questions we have raised about his judgment and his values go to 
the heart of who we are and what we want to be. Do we want the Supreme 
Court to continue to be a voice for the corporations, the corporate 
elite, and employers? Do we want to exclude the opportunities of common 
people like that truckdriver, Al Maddin, to have his day in court and 
be treated fairly? That is what it comes down to. It is a fundamental 
question of fairness and justice.
  I am sorry, because I love the Senate and I have spent a good part of 
my life here, that we have reached this moment. But it is this effort 
to fill the courts of this Nation with Republican appointments, even at 
the expense of violating Senate traditions that are over 100 years old, 
that has brought us to this moment.
  As someone said, the nuclear option was used by Senator McConnell 
when he stopped Merrick Garland. What we are facing today is the 
fallout.
  Mr. President, I yield the floor.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.
  Mr. SCHUMER. Mr. President, this past week, the American people have 
been exposed to a contentious debate here on the Senate floor about the 
nomination of Judge Gorsuch to the Supreme Court.
  The American people have heard many arguments about the judge's 
merits and his shortcomings. They have also heard Senators litigate 
four decades of fierce partisan wrangling over the composition and 
direction of the Federal judiciary. That debate, that long debate, has 
informed the current one about Judge Gorsuch. Newer Members may not 
remember all the details. Friends of mine, like Senator Hatch, probably 
remember too many of them. Still, the vote on Judge Gorsuch and the 
decision by the majority leader to move to change the rules has roped 
in all of that history.
  Now, how did we get here? The truth is, over the long history of 
partisan combat over judicial nominations, there is blame on both 
sides. We believe that the blame should not be shared equally between 
Republicans and Democrats. We believe the Republican Party has been the 
far more aggressive party in the escalation of tactics and in the 
selection of extreme judicial candidates, while Democrats have tended 
to select judges closer to the middle.
  Keep this in mind: The last time a Republican-controlled Senate 
confirmed the Supreme Court nomination of a Democratic President was 
1895. Nonetheless, each side comes here today in full confidence that 
their side is in the right. It was once said that ``antagonism is never 
worse than when it involves two men each of whom is convinced that he 
speaks for the goodness and rectitude.'' So it is today.
  My Republican friends feel that they have cause to change the rules 
because the Democrats changed the rules on the lower court nominees in 
2013. We believe we had to change the rules in 2013 because the 
Republicans ramped up the use of the filibuster to historic 
proportions, forcing more cloture votes under President Obama than 
during all other Presidents combined--more cloture votes under Obama 
than under George Washington all the way through to George Bush.
  My Republican friends think they have cause to change the rules 
because we are about to deny cloture on the nomination of Judge 
Gorsuch. We believe what Republicans did to Merrick Garland was worse 
than a filibuster, declaring mere hours after Justice Scalia's death 
that they would deny the constitutional prerogative of a President with 
11 months left in his term. As my colleague from Illinois noted, we did 
not hear two words in the long speech of Senator McConnell: Merrick 
Garland.
  We could relitigate these debates for the next hour, mentioning 
everything the Republican leader left out in his remarks. In fact, I am 
pretty sure we could argue endlessly about where, and with whom, this 
all started. Was it the Bork nomination or the obstruction of judges 
under President Clinton? Was it when Democrats blocked judges under 
President Bush or when Republicans blocked them under President Obama? 
Was it Judge Garland or Judge Gorsuch? Wherever we place the starting 
point of this long twilight battle over the judiciary, we are now at 
its end point.
  These past few weeks, we Democrats have given Judge Gorsuch a fair 
process, something Merrick Garland was denied. My colleagues came into 
this debate with an open mind. I think many of them wanted to vote for 
Judge Gorsuch at the outset. So we met with the nominee. We consented 
to and participated in his hearing. But over the course of the hearing, 
during which Judge Gorsuch employed practiced evasions and judicial 
platitudes, the mood of our caucus shifted. Without so much as a hint 
about his judicial philosophy, without a substantive explanation of how 
he views crucial legal questions, all we had to go on was his record, 
and the more we learned about Judge Gorsuch's record, the more we 
didn't like.
  Judge Gorsuch has shown in his rulings and in his writings to side 
almost instinctively with corporate interests over average Americans. 
He hasn't shown independence from the President, who so routinely 
challenges the legitimacy of the judiciary. While he has made a 
studious effort to portray himself as thoughtful and moderate, his 
record shows that, far from being the kind of mainstream candidate for 
the Supreme Court that could earn 60 votes, he may very well turn out 
to be one of the most conservative Justices on the bench. An analysis 
of his record in the New York Times showed he would be the second most 
conservative Justice on the bench, and one in the Washington Post 
showed he would be the most conservative Justice, even to the right of 
Justice Thomas.
  For these principled reasons, Judge Gorsuch was unable to earn enough 
Democratic support for confirmation. Because of that, the majority is 
about to change the Standing Rules of the Senate to allow all Supreme 
Court nominees to pass on a majority vote.
  It doesn't have to be this way. When a nominee doesn't get enough 
votes for

[[Page 5657]]

confirmation, the answer is not to change the rules; it is to change 
the nominee. Presidents of both parties have done so in similar 
situations. On several occasions, Supreme Court nominees were withdrawn 
because they did not have enough support; one was even withdrawn after 
a failed cloture vote.
  So this week we have endeavored to give the majority leader and my 
friends on the other side of the aisle a way out of this predicament. 
We offered them the option to sit down with us Democrats and the 
President and discuss a nominee who would earn enough bipartisan 
support to pass the Senate, not one vetted only by far-right special 
interest groups.
  I came here to the floor each day and made an offer to meet anywhere, 
anytime to discuss a new nominee. I hoped, perhaps naively, that we 
could discuss a way forward that both our parties could live with. 
Unfortunately, there were no counteroffers or discussion offered by the 
other side. But our offer was meant sincerely.
  Democrats and Republicans are caught in such a bunker mentality on 
this issue that we are just talking past each other. I know that many 
of my Republican friends are squeamish and uncomfortable with the path 
we are on, as we Democrats are as well. We have reached a point where 
the level of distrust is so high on this issue, we can't even sit down 
and talk.
  My Republican friends dismiss out of hand the notion that Democrats 
will ever vote to confirm a Republican-nominated judge, despite the 
fact that there were Democratic votes for both Justices Roberts and 
Alito to get them over 60 and despite our plangent attempts to convince 
them otherwise. But make no mistake about it, for all the back and 
forth, when history weighs what happened, the responsibility for 
changing the rules will fall on the Republicans' and Leader McConnell's 
shoulders. They have had other choices; they have chosen this one. No 
one forced them to act; they acted with free will. We offered them 
alternatives; they refused. They hardly entertained any other 
possibilities. It seemed that the Republican leader was, from day one, 
intent on changing the rules if he didn't get his way.
  Frankly, this is how so many of our Republican friends have 
approached the judiciary for a long time. For two decades, they have 
done whatever it has taken to move the bench to an ideological, far-
right position. Independent experts have stated that we have a more 
conservative Supreme Court than we have had in a very long time. 
Nothing--not even the rules, not even the comity of the Senate--seems 
to stop them.
  When the dust settles, make no mistake about it, it will have been 
the Republicans who changed the rules on the Supreme Court. But we take 
no solace that history will put it on their shoulders because the 
consequences for the Senate and for the future of the Supreme Court 
will be far-reaching. The nuclear option means the end of a long 
history of consensus on Supreme Court nominations. It weakens the 
standing of the Senate as a whole as a check on the President's ability 
to shape the judiciary. In a postnuclear world, if the Senate and the 
Presidency are in the hands of the same party, there is no incentive to 
even speak to the Senate minority. That is a recipe for more conflict 
and bad blood between the parties, not less. The cooling saucer of the 
Senate will get considerably hotter.
  The 60-vote threshold on controversial matters is a hallmark of the 
Senate. The majority leader has said so himself. It fosters compromise, 
it fosters bipartisanship, and it makes the Senate more deliberative. 
Sixty votes ought to be the epigraph of the Senate. Losing that 
standard on the Supreme Court, a hugely controversial matter, erodes 
the very nature of this body.
  The 60-vote bar in the Senate is the guard rail of our democracy. 
When our body politics is veering too far to the right or to the left, 
the answer is not to dismantle the guardrails and go over the cliff but 
to turn the wheel back toward the middle. The answer is not to undo the 
guardrails--the rules--it is to steer back to the middle and get a more 
mainstream candidate.
  With respect to the Supreme Court, the 60-vote threshold operates as 
a guardrail against judicial extremism. When 60 votes--typically a 
bipartisan supermajority--are required for confirmation, nominees tend 
to be in the judicial mainstream. The only nominee on the Court to be 
confirmed with less than 60 votes was Justice Thomas, who is widely 
recognized to be the most ideologically extreme Supreme Court Justice. 
It will mean the end of any pressure on any future President to 
nominate someone in the mainstream.
  When it comes to the courts, the guardrails are being dismantled. 
There will be more 5-to-4 decisions, as our ranking member of the 
Judiciary Committee has pointed out. There will be less faith in the 
Supreme Court because it will be seen as a political body, an extension 
of our most divisive debates. As a result, America's faith in the 
integrity of the Court and the trust in the rule of law will suffer.
  In conclusion, I am disheartened that we are here. In the sweep of 
history, the Senate has been the place where great, seemingly 
intractable disagreements in American politics finally give way to 
compromise, precisely because we have a set of rules that requires it. 
The story of the Senate is one of fierce debate but eventual 
cooperation. We tend to pull back when things get too heated because we 
all care about this institution and its role in our national life. In 
this case, the cumulative resentments from years of partisan trench 
warfare were too great. Instead of the Senate forcing us to change, 
Senators have decided to change the Senate. I worry a great deal about 
what that means for our future.
  Twenty years ago, I think even the most partisan would say that the 
60-vote threshold was basically inviolable. Today, it will be gone for 
all nominations, but at least not for legislation. My friend the 
majority leader has said he has no interest in removing the barrier for 
legislation.
  I agree with him wholeheartedly, and I take him at his word.
  I hope we can get together to do more in future months to ensure that 
the 60-vote threshold for legislation remains, but just as it seemed 
unthinkable only a few decades ago that we would change the rules for 
nominees, today's vote is a cautionary tale about how unbridled 
partisan escalation can ultimately overwhelm our basic inclination to 
work together and frustrate our efforts to pull back, blocking us from 
steering the ship of the Senate away from the rocks.
  There is a reason it was dubbed the ``nuclear option.'' It is the 
most extreme measure, with the most extreme consequences. While I am 
sure we will continue to debate what got us here, I know that in 20 or 
30 or 40 years, we will sadly point to today as a turning point in the 
history of the Senate and the Supreme Court; a day when we irrevocably 
moved further away from the principles our Founders intended with these 
institutions, principles of bipartisanship and moderation and 
consensus.
  Let us go no further on this path.
  I yield the floor.


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. Pursuant to rule XXII, the Chair 
lays before the Senate the pending cloture motion, which the clerk will 
state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

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

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Neil M. Gorsuch, of Colorado, to be an Associate Justice 
of the Supreme Court of the United States shall be brought to a close?

[[Page 5658]]

  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The yeas and nays resulted--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 105 Ex.]

                                YEAS--55

     Alexander
     Barrasso
     Bennet
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     Manchin
     McCain
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--45

     Baldwin
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Markey
     McCaskill
     McConnell
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The PRESIDING OFFICER (Mr. Sullivan). On this vote, the yeas are 55, 
the nays are 45.
  Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.


                          Motion to Reconsider

  Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The result was announced--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 106 Ex.]

                                YEAS--55

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     Manchin
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--45

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The motion was agreed to.
  The PRESIDING OFFICER (Mrs. Fischer). The Democratic leader.
  Mr. SCHUMER. Madam President, parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Madam President, is it correct that over half the 
nominations on which cloture motions were filed in the Senate, over the 
course of our entire history as a country, were filed between the 
beginning of President Obama's administration and November 21, 2013?
  The PRESIDING OFFICER. The Secretary of the Senate's office confirms 
that 79 of the 147 cloture motions filed on nominations were filed 
between 2009 and November 21, 2013.
  Mr. SCHUMER. Madam President, further parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Madam President, under the rules and precedents of the 
Senate, is the Senate prohibited from considering and voting on a 
nominee to the Supreme Court in the fourth year of the President's 
term?
  The PRESIDING OFFICER. The Chair is not aware of any such prohibition 
in its rules or precedents.
  Mr. SCHUMER. Madam President, additional parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Is the Chair aware of any instance in the years between 
the 1949 advent of routine public Supreme Court confirmation hearings 
and 2016 that a nominee who was not withdrawn did not receive a hearing 
and a vote?
  The PRESIDING OFFICER. The Secretary of the Senate's office confirms 
that since 1949, Supreme Court nominees have routinely received public 
hearings. Harriet Miers, whose nomination was withdrawn, and Merrick 
Garland did not.


                           Motion to Postpone

  Mr. SCHUMER. Madam President, in order to allow President Trump, 
Republicans, and Democrats time to come together and discuss a way 
forward on a Supreme Court nominee who can meet the 60-vote threshold, 
I move to postpone the nomination to 3 p.m. on Monday, April 24, and I 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 48, nays 52, as follows:

                      [Rollcall Vote No. 107 Ex.]

                                YEAS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--52

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young
  The motion was rejected.
  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. Madam President, our Democratic colleagues have done 
something today that is unprecedented in the history of the Senate. 
Unfortunately, it has brought us to this point. We need to restore the 
norms and traditions of the Senate and get past this unprecedented 
partisan filibuster.
  Therefore, I raise a point of order that the vote on cloture, under 
the precedent set on November 21, 2013, is a majority vote for all 
nominations.
  The PRESIDING OFFICER. The precedent of November 21, 2013, did not 
apply to nominations to the Supreme Court. Those nominations are 
considered under plain language of rule XXII.
  The point of order is not sustained.


                     Appealing Ruling of the Chair

  Mr. McCONNELL. Madam President, I appeal the ruling of the Chair.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. SCHUMER. Madam President, parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Madam President, did the Senate precedent established on

[[Page 5659]]

November 21, 2013, on how nominations are considered in the Senate 
change the cloture threshold for nominations to the Supreme Court?
  The PRESIDING OFFICER. The consideration of nominees to the Supreme 
Court of the United States was unaffected by the precedent of November 
21, 2013, and is as under rule XXII.
  Mr. SCHUMER. Madam President, a second parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Madam President, in the history of the Senate, have 
there been any instances in which a nomination to the Supreme Court was 
withdrawn after cloture was not invoked on the nomination?
  The PRESIDING OFFICER. The Secretary of the Senate's office has 
confirmed that such a withdrawal has taken place.
  Mr. SCHUMER. Thank you, Madam President.
  Madam President, a parliamentary inquiry.
  The PRESIDING OFFICER. The Democratic leader will state the 
parliamentary inquiry.
  Mr. SCHUMER. Madam President, of the last 26 nominations of Justices 
confirmed to the Supreme Court, going back to 1954, how many were 
confirmed without a rollcall vote or received more than 60 votes in 
support of their nomination either on cloture or on confirmation?
  The PRESIDING OFFICER. The Secretary of the Senate's office confirms 
that 25 of 26 nominees were confirmed in one or another of the manner 
so described.


                           Motion to Adjourn

  Mr. SCHUMER. Madam President, I move to adjourn until 5 p.m., and I 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The result was announced--yeas 48, nays 52, as follows:

                      [Rollcall Vote No. 108 Ex.]

                                YEAS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--52

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young
  The motion was rejected.


                     Appealing Ruling of the Chair

  The PRESIDENT pro tempore. The question is, Shall the decision of the 
Chair stand as the judgment of the Senate?
  Mr. McCONNELL. Mr. President, I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 48, nays 52, as follows:

                      [Rollcall Vote No. 109 Ex.]

                                YEAS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--52

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young
  The PRESIDENT pro tempore. The decision of the Chair does not stand 
as the judgment of the Senate.


                             Cloture Motion

  Pursuant to rule XXII, the Chair lays before the Senate the pending 
cloture motion, which the clerk will state.
  The legislative clerk read as follows:

                             Cloture Motion

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

  The PRESIDENT pro tempore. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Neil M. Gorsuch, of Colorado, to be an Associate Justice 
of the Supreme Court of the United States shall be brought to a close, 
upon reconsideration?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The yeas and nays resulted--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 110 Ex.]

                                YEAS--55

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     Manchin
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--45

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The PRESIDENT pro tempore. On this vote, the yeas are 55, the nays 
are 45.
  Upon reconsideration, the motion is agreed to.
  The PRESIDING OFFICER (Mrs. Fischer). The majority whip.
  Mr. CORNYN. Madam President, the Senate has just restored itself to 
an almost unbroken tradition of never filibustering judges.
  We have actually restored the status quo before the administration of 
President George W. Bush. It was during that administration when some 
of our friends across the aisle, along with some of their liberal law 
professor allies, dreamed up a way of blocking

[[Page 5660]]

President George W. Bush's judicial nominees, and that was by 
suggesting that 60 votes was really the threshold for confirming 
judges, rather than the constitutional requirement of a majority vote.
  It has been a long journey back to the normal functioning of the 
United States Senate, and it is amazing that it has taken a nominee 
like Judge Gorsuch to bring us back to where we were back around 2001.
  We have been debating and discussing this nominee for a long time 
now, and the opponents of Judge Gorsuch have tried time and time again 
to raise objections to this outstanding nominee--a nomination that no 
one in the Senate opposed 10 years ago when he was confirmed to a 
position on the Tenth Circuit Court of Appeals. They claimed he wasn't 
mainstream enough. They said this was a seat that really should have 
gone to Merrick Garland. They have even accused him of plagiarism. All 
of these arguments have no merit whatsoever and really represent 
desperate attempts to try to block this outstanding nominee. Their 
claims were simply baseless, and that much became even clearer as folks 
from across the political spectrum and newspapers from across the 
country urged our Democratic colleagues to drop their pointless 
filibuster and allow an up-or-down vote.
  What also came to light is the type of man Judge Gorsuch is--a man of 
integrity, a man of strong independence; in other words, exactly the 
kind of person you would want to serve on the Supreme Court.
  They even claimed that Judge Gorsuch went out of his way to side with 
the big guy against the little guy, ignoring the fact that during his 
10 years on the Tenth Circuit Court of Appeals, where these judges sit 
on multi-judge panels, he was part of the majority decision 99 percent 
of the time, and 97 percent of those cases were unanimous in multi-
judge panel decisions on the Tenth Circuit Court of Appeals--hardly 
radical. It actually is a remarkable record of a consensus-builder, 
someone who uses his great intellect, his education, and his training 
to build consensus on a multi-judge court--exactly the kinds of skills 
that are going to be so important for him to use on the Supreme Court 
of the United States.
  As I said, ultimately today was the culmination of years of 
obstruction by our Democratic colleagues when it came to judicial 
nominees.
  When I came to the Senate in 2003, the Democratic strategy was well 
underway to obstruct lower court judicial nominees from the George W. 
Bush administration.
  Later, in 2013, when there was a Democrat in the White House and it 
suited them to do so, they decided to do away with the same tool they 
used and went nuclear, lowering the threshold from 60 to 51 majority 
vote for circuit court nominees and district court nominees.
  It took a Gang of 14--7 Democrats and 7 Republicans--to try to work 
through the differences back around the 2006 timeframe, which resulted 
in half of President George W. Bush's nominees to the circuit court 
getting confirmed and half not being confirmed. The standard was 
adopted by the so-called Gang of 14 that only under extraordinary 
circumstances would the filibuster be used, but that agreement expired 
in 2013.
  Well, the minority leader and his colleagues like to say that back 
then it was necessary to restore a majority vote. He did that just last 
Sunday. He said: ``Our Republican colleagues had been holding back on 
just about all of so many lower-court judges, including the very 
important D.C. circuit'' court, that they were forced to engage in the 
nuclear option back in 2013. But the facts really belie what the 
Democratic leader claimed in terms of the necessity of going nuclear 
back then. In fact, prior to 2013, the Senate had confirmed more than 
200 of President Obama's judicial nominees and it rejected just 2--more 
than 200 confirmed, 2 rejected. That hardly rises to a level of extreme 
obstruction or partisanship. That is a 99-percent confirmation rate for 
President Obama.
  So let's make it clear just how this began. It started with 
Democratic obstruction under a Republican administration in 2001, and 
it is been continuing now under a new Republican administration in 
2017. So we really have come full circle to restore the status quo 
before 2001, when our Democratic friends started down this path.
  President Trump has, by all accounts, selected a judge with 
impeccable qualifications and the highest integrity. Not one of our 
Democratic colleagues has been able to offer a convincing argument 
against him, and that is why several of our Democratic colleagues have 
crossed the aisle to support his nomination, and I thank them for that. 
I think more would join if they didn't fear retribution from the 
radical elements in their own political party.
  So today Republicans in the Chamber are following through on what we 
said we would do. We said we would let the American people decide who 
would select the next Supreme Court nominee and then we would vote to 
confirm that nominee. The American people, on November 8, selected 
President Trump. President Trump nominated Judge Neil Gorsuch. And 
tomorrow we will confirm that nominee and deliver on that promise.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sasse). The Senator from Colorado.
  Mr. GARDNER. Mr. President, over the next several hours, we will have 
the final opportunity to debate the confirmation of Supreme Court 
Justice nominee Neil Gorsuch. This has been a lengthy process this 
week, as we have heard from Senators on both sides of the aisle who 
have come to the floor and talked about their support or their 
opposition to Judge Gorsuch's nomination to the Supreme Court.
  I have had several opportunities over the past weeks and months to 
personally visit and speak with Judge Gorsuch, whom I have known from 
Colorado, the opportunity to listen to a number of my colleagues 
address the Chamber, to watch the Senate confirmation hearings in the 
Judiciary Committee--the day after day, it seemed, that that 
confirmation hearing proceeded--and of course we have gotten to know 
Judge Gorsuch over the past several years. We are proud that we have a 
Coloradan nominated to the Nation's highest Court and that he would be 
the second Coloradan to serve on the Supreme Court, the other one being 
Justice Byron White. Justice Byron White also led the NFL in rushing 
one year, and while Gorsuch will never live up to that part of the 
Supreme Court legacy for Coloradans, we know that Judge Gorsuch is an 
avid outdoorsman, a fly-fisher, expert-level skier, and somebody who 
understands public lands. I think having that kind of expertise and 
experience on our Nation's highest Court will serve this country well.
  I think it is important to understand that his roots represent the 
roots that built the West. He is a fourth-generation Coloradan, 
somebody who hails from a State that is independent, that takes great 
pride in its libertarian streak, its love of the outdoors, recreational 
opportunities, understanding agriculture, energy. It is a State that 
really does have it all. From the Eastern Plains to the Western Slope, 
there is great beauty in our State.
  Neil Gorsuch understands that. He served on a court, the Tenth 
Circuit Court, that is housed in Denver and represents 20 percent of 
the landmass of our State. Judge Gorsuch's family, as I mentioned, 
really does show the grit and determination of those who built the 
West. His grandfather was someone who worked in Union Station, someone 
who grew up driving trolleys back in the time when Denver was a trolley 
town. His other grandfather, of course, was a physician, and both were 
experts in their fields. One grandfather helped found a law firm, 
Gorsuch Kirgis, a very prestigious firm in Denver.
  But it is Judge Gorsuch's experience, his high qualifications of 
academics that he brings to the Court, having received his degrees from 
Columbia, Oxford, Harvard, as I mentioned previously--the most 
important academic experience being the University of Colorado, where I 
think he spent at least

[[Page 5661]]

some time in the summer attending, and also teaching a course as a 
professor at my alma mater, the University of Colorado School of Law. 
This has all helped him build what he is today; that is, a very 
mainstream jurist, an incredibly exceptional legal mind, one of the 
brightest jurists this country has to offer, someone who is known as a 
feeder judge, providing clerks to the Supreme Court, and who has the 
respect of the Colorado legal community.
  I want to talk about some of these things because I have come to the 
floor multiple times, and I have talked about his qualifications. I 
have talked about the people who know him best, not the people in 
Washington, DC, but the people who have practiced in front of his court 
in Denver, the people who know him personally out in Colorado.
  Here is what those individuals have said. They believe that Judge 
Gorsuch deserves an up-or-down vote. Bill Ritter, former Democratic 
Governor for the State of Colorado, believes that Judge Gorsuch 
deserves an up-or-down vote. Now we will have it. We have invoked 
cloture. We will have a final debate on Friday night and a final vote 
on whether or not he should be confirmed.
  People like Steve Farber, the cochair of the Democratic National 
Convention in 2008 in Colorado, have talked about the need to confirm 
Judge Gorsuch.
  So the debate that we enter now is not one of whether he will have an 
up-or-down vote. He is going to have an up-or-down vote. But it is 
whether we should confirm him, actually give him the ``yes'' vote.
  I urge my colleagues on both sides of the aisle to vote in favor of 
Judge Gorsuch's confirmation. Some of the arguments that I have heard 
over the past several weeks on the floor, listening to some of the 
arguments on the floor--it is quite interesting to me that some of the 
arguments we hear seem to be at odds with each other.
  Presiding over the Senate yesterday, I heard people talk about how 
they don't think Neil Gorsuch will stand up to the President. They are 
concerned that he will not express the kind of independence the 
judiciary commands, that he will not be someone to stand up to the 
President of the United States. They often cite some of the comments or 
tweets that the President has made and then fail to mention the fact, 
though, that at the very time one of those tweets was mentioned, 
questioning the judiciary, Judge Gorsuch, in a meeting with one of our 
Democratic colleagues, actually had objections. He said he objected to 
the statements the President had made, expressing his independence, 
talking about how what he had heard was demoralizing--very much showing 
independence.
  But the second argument you often hear, for those who have decided to 
oppose this mainstream jurist, is that they are afraid he won't show 
enough independence from the President, and then they say they are 
concerned about his language as it relates to the Chevron doctrine--
whether Judge Gorsuch is going to be willing to overturn the Chevron 
doctrine.
  I find those two arguments kind of interesting because, on one hand, 
you have an argument saying we are afraid he is not going to stand up 
to the President of the United States, and then, on the other hand, you 
have an argument saying that we are afraid he is not going to stand up 
to the administrative state of the President of the United States--
because that is what the Chevron doctrine does; it gives great 
deference to the regulatory body, to the administrative state.
  Here is another irony. The Administrator of the EPA in 1984 was Neil 
Gorsuch's mother, Anne Burford--the Administrator of the EPA. She was 
the first woman to serve as EPA Administrator who was the subject of 
the Chevron doctrine.
  Not only is he willing to stand up to the President and the 
administrative state of the President, but he is willing to overturn a 
case that was a subject that his own mother was a subject to.
  I have also heard comments from colleagues on the aisle that Judge 
Gorsuch is not a mainstream jurist. This argument, I think, can be 
dealt with in a couple of ways because there are some pretty good 
statistics to refute these arguments.
  Ninety-seven. Ninety-seven percent is the number of times in the 
2,700 opinions that he was a part of--97 percent represents the times 
that the decisions were unanimous. Judge Gorsuch did not serve only 
with conservative-appointed judges. He didn't serve with only 
Republican nominees. Judge Gorsuch served with Republican and Democrat 
nominees, appointments approved by the Senate. In 97 percent of the 
cases, Judge Gorsuch ruled--decided--in unanimous decisions.
  The other statistic that I think is even more revealing, of course, 
as to whether Judge Gorsuch is a mainstream judge is 99 percent. 
Ninety-nine percent is the amount of times that Judge Gorsuch ruled 
with the majority of the court; he made decisions--opinions--with the 
majority of the court.
  I heard a comment yesterday from a colleague who said that Judge 
Gorsuch was never intended to be a mainstream nominee. If Judge Gorsuch 
was never intended to be a mainstream nominee, do you think we would 
see a judge before us that has support from the 2008 Democratic 
National Convention Chairman? If Judge Gorsuch was never intended to be 
mainstream nominee, do you think we would have decisions by the 
Democratic Governor of Colorado, former Democratic Governor of 
Colorado, to demand or ask for an up-or-down vote? If Judge Gorsuch was 
never intended to be a mainstream nominee, do you think that the 
President would have nominated somebody who agreed 99 percent of the 
time with his colleagues on the bench, colleagues who came from 
appointments given by Republican Presidents and Democrat Presidents?
  The arguments over whether Judge Gorsuch is going to be with the 
little guy or he spends too much time defending the big guy--well, let 
me again go back to the people who know Judge Gorsuch the best, who 
have practiced in front of his court. Here is a statement from a Denver 
attorney and Democrat on representing underdogs before Judge Gorsuch. 
This is from the Denver Post: ``He issued a decision that most 
certainly focused on the little guy.''
  Yet the story from the opposition here, out of 2,700 cases, is: Oh, 
my gosh, this is a person who has never defended the little guy. Well, 
here is somebody who has practiced in front of his court who absolutely 
believes he focused on the little guy.
  So we have a judge who agrees with the majority of the court most of 
the time--99 percent of the time; 97 percent of the time it is a 
unanimous decision, and lawyers practicing in front of him believe that 
he represents the little guy. We have heard from leading Democrat 
voices in Colorado who support him. The ABA gave him its highest 
qualification, rankings, ratings. They believe it.
  Then the question becomes, What are we looking for in a Justice? 
Maybe that is the biggest argument here. Maybe the argument should be 
about what are we looking for in terms of philosophy, ideology?
  Well, we have seen his ideology and his philosophy in what he has 
testified before the Judiciary Committee, what he has stated in the 
past through writings. He is someone who is going to follow the law. He 
is someone who is going to take a decision where the law leads him, not 
somebody who is going to take an opinion or decision where his personal 
beliefs or politics take him. That is the kind of judge we want on the 
highest Court. That is the kind of Justice we want--someone who is not 
going to decide a policy preference from the bench of the Supreme 
Court, not somebody who is going to take a look at a public opinion 
poll or someone who is going to take a look at a focus group and make a 
decision but someone who will rule by the law.
  I have heard colleagues come to the floor and talk about their 
experiences where they were given decisions to read without being given 
the law. They were given just the facts of the case. They said: How 
would you have decided this case? Then they showed him the actual 
ruling, the actual holding in the case.

[[Page 5662]]

  Some people believe, well, that is not the way we would have decided 
because we don't feel that was a good outcome; we don't feel that was 
the right policy.
  It is not the job of a Justice to put their thumb on the scale of 
policy; it is the job of a Justice to be a guardian of the 
Constitution, to defend the Constitution, to follow the law and to 
decide cases based on the law not on feelings, politics, polls, public 
opinion.
  We have a judge, nominated for Justice, who has said that a judge who 
agrees with every opinion that they have issued is probably a bad 
judge. He is paraphrasing other judges and Justices throughout our 
history. It is because he knows it is not his job to issue opinions or 
decisions or to decide a case based on being a Republican or Democrat. 
It is not his job to decide a case based on whether he was nominated by 
President Trump or President Obama or President Bush. It is his job to 
look at the law, to leave policy decisions to the legislative branch. 
That is what we have to do. That is what Judge Gorsuch has said he will 
do.
  So these arguments just don't hold water. It doesn't hold water that 
he is not looking out for the interests of our citizens, because here 
clearly he is. Democrats who have practiced before him in court have 
said as much. The argument that he will not stand up to Trump 
administration--we know it; he said in front of our Democratic 
colleagues that he would stand up to the President.
  He has said that he rejected attacks on the Court. We also know that 
when it comes to the Chevron doctrine, which seems to be sacred ground 
now, that there are these ironic arguments taking place, because you 
want someone who will stand up to the administration, but then you are 
concerned that he is interested in or concerned that we have taken the 
Chevron deference--the doctrine of Chevron deference too far.
  Now which is it? Do you want a judge who is going to stand up to the 
administration or do you want a judge who is not going to stand up to 
the administration? It sounds as though the arguments are trying to 
have it both ways.
  The bottom line is that we know Judge Gorsuch to be a person who is 
eminently qualified, a mainstream jurist who has the respect and 
admiration of judges around the country, who has the admiration and 
respect of fellow jurists and legal professionals throughout Colorado, 
and we know that he will make this country proud. He is certainly going 
to make Colorado proud as he receives his confirmation to the Nation's 
highest Court.
  I hope, as we spend these hours debating, that we can realize this 
Senate should operate in a bipartisan fashion, that we should confirm 
judges who are clearly mainstream.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. Mr. President, today is a day when many Senators are 
speaking about Judge Gorsuch and about the Supreme Court. As I think 
many know, in the last week, in the Judiciary Committee hearings and in 
other settings, I have announced that I will vote against Judge Gorsuch 
on the final vote tomorrow. I believe I have made my reasons for my 
opposition clear. I have thoroughly reviewed and considered Judge 
Gorsuch's record and where he fits within American jurisprudence, and I 
have no second thoughts about my decision.
  As I look around at what has just happened on this Senate floor, I am 
sick with regret. So I rise now to speak in defense of the Senate.
  The Senate has been hailed by many, including our nominee to the 
Supreme Court, Judge Gorsuch, as the world's greatest deliberative 
body. Yet today I think one more blow has been struck at that title and 
reality.
  The late Senator Robert Byrd, who served in this Chamber for 51 
years, would famously remind new Senators that ``in war and in peace, 
[the Senate] has been the sure refuge and protector of the rights of 
the states and of a political minority.''
  Of course, although Senator Byrd was the longest serving Senator, as 
a Delawarean, I grew up in the tradition of Senator Joe Biden, a 36-
year veteran of this body who left its ranks only to ascend to the Vice 
Presidency and spend 8 more years as its Presiding Officer.
  Since I have had the honor of assuming Senator Biden's former seat, I 
have committed to following his example of working across the aisle, 
through Republican and Democratic administrations, with whoever is 
willing to roll up their sleeves and get to work for the American 
people. I know my colleagues share in this foundational commitment to 
serve our constituents and country.
  As I look around at what just happened on this floor, with too little 
discussion of its lasting consequences and too little visible concern 
or even emotion, I must ask the question: Where are we headed?
  You can't see it, but around this Chamber are white marble statues, 
busts of former Presiding Officers, of former Vice Presidents of the 
United States. They are in the halls outside this Chamber. They are at 
the upper level of this Chamber, in the Galleries. All the former Vice 
Presidents are memorialized in white marble busts.
  Former Vice President Adlai Stevenson, the grandfather of the 
Illinois Governor who ran for President in the middle of the 20th 
century--former Vice President Adlai Stevenson, when he delivered his 
farewell address to the Senate on his last day in office as the 
Presiding Officer of the Senate in 1897, said:

       It must not be forgotten that the rules governing this body 
     are founded deep in human experience; that they are the 
     result of centuries of tireless effort . . . to conserve, to 
     render stable and secure, the rights and liberties which have 
     been achieved by conflict.
       By its rules, the Senate wisely fixes the limits to its own 
     power. Of those who clamor against the Senate and its mode of 
     procedure, it may be truly said, ``They know not what they 
     do.''
       In this Chamber alone are preserved, without restraint, two 
     essentials of wise legislation and of good government--the 
     right of amendment and of debate.

  It was exactly that right, those rules that were assaulted today, but 
they have been under assault for a long time.
  In recent days, I have reached out to my Republican and Democratic 
colleagues, trying to see if there was some way we could reach a 
reliable consensus agreement to safeguard these institutional values 
and avoid the events of today and tomorrow.
  I told my colleagues that I was not ready to end debate on Judge 
Gorsuch's nomination until we could chart a course for the Senate to 
move forward on a bipartisan basis when considering future Supreme 
Court nominations.
  I think for us to get to any constructive conversation about moving 
this Senate forward requires owning the role that all of us--each of us 
has played over our time here, whether a few years or decades, in 
bringing us to this point.
  I, for one, will say I have come over time to regret joining my 
Democratic colleagues in changing the rules for lower court nominations 
and confirmations in 2013. Of course, I could give an entire speech on 
the obstruction that led us to that point. I could document the 
Republican and Democratic deeds and misdeeds of the last Congress and 
the Congress before that and the decade before that.
  As my more seasoned and senior colleagues demonstrated in the 
Judiciary Committee deliberations, those who have served here longest 
know best the record of grievance of Congresses in decades past.
  I anticipate that many of my colleagues will come to regret the 
decisions and actions taken today in this Congress and in Congresses 
ahead. Instead of focusing on that shared regret, I want to work 
together not to continue to tear down the traditions and rules of the 
Senate but to find ways to strengthen and fortify and sustain them.
  I worked to try to find a solution to get past this moment on the 
brink. I wanted to ensure our next Supreme Court nominee would be the 
product of bipartisan consultation and consensus, as was safeguarded 
for years by the potential of the 60-vote margin. I wanted certainty 
that the voice of the minority would still be heard when the next

[[Page 5663]]

vacancies arise. Among many, this effort to forge consensus was met 
with hopelessness or even hostility.
  Back home, thousands of constituents called my office, urging a vote 
against Gorsuch and urging I support the filibuster. Some even urged me 
to stop talking about any sort of deal. In fact, back home in Delaware, 
some national groups ran ads against me when there was even a rumor of 
a hint that there might be conversations about avoiding this outcome.
  There were even Senators on both sides of the aisle who told me that 
an agreement was impossible. They said any agreement is based on trust, 
and we simply do not trust each other anymore.
  Given the events of the last years, the disrespect and mistreatment 
of Merrick Garland, the course of the confirmation of Neil Gorsuch, I 
can understand how there is a raw wound right now in this Chamber, 
where each side feels the other has mistreated a good and honorable and 
capable nominee for the Supreme Court.
  Let me say my last point again. Senators on both sides told me we 
could not find a durable compromise because we do not trust each other 
anymore. If we cannot trust each other anymore, then are there any big 
problems facing this country which we can address and solve?
  This morning, I gave an address at the Brookings Institution about 
the threat Russia poses to our democracy, to our allies, to our 
national security, and to the endurance of our Republic. If that threat 
is not something that deserves determined, bipartisan effort, I don't 
know what is.
  There are many threats to our future I could lay out today, but let 
me simply emphasize that in the absence of trust, this body cannot play 
its intended constitutional role, and without trust, we will not 
rebuild what is necessary to sustain this body.
  Everyone likes to point the finger at the other side as the source of 
this distrust. The reality is, there is abundant blame to go around.
  Folks like to remember the good old days when Justice Scalia was 
confirmed by this body 98 to 0, when Justice Ginsburg was confirmed 96 
to 3, but if we look at our five most recent nominees to the Supreme 
Court who got votes, you can see a clear trend: Nine Senators, all 
Republican, voted against Justice Breyer. Then 22 Senators voted 
against Justice Roberts. Then 42 Senators, mostly Democrats, voted 
against Justice Alito. For President Obama's nominees, Justices 
Sotomayor and Kagan, more than 30 Republican Senators opposed each one. 
Only nine Republican Senators voted for Sotomayor, and only five 
Republicans voted for Justice Kagan. We have been on this trajectory--
both parties--for some time.
  Then, of course, we have Chief Judge Merrick Garland, the first 
Supreme Court nominee in American history to be denied a hearing and a 
vote, and we have Judge Gorsuch, the first to be the object of a 
partisan filibuster on this floor.
  We did not get here overnight. We have become increasingly polarized. 
How can we work together to repair this lack of trust so we can face 
the very real challenges that face our Nation?
  My own attempts of recent days--although I was blessed to be joined 
by Senators of good will and good faith and great skill in both 
parties--were ultimately not successful. I wish I had engaged sooner 
and more forcefully. I wish I had been clearer with my colleagues how 
determined I was to seek a result, but this doesn't mean I am 
disappointed that I tried, and it also doesn't mean I am going to stop. 
I am not going to stop trying to fix the damage that has been done, 
trying to find a better pathway forward.
  I ask my colleagues: If you know what you have done today, then what 
will we do tomorrow? How could we avoid the further deepening, 
corrosive partisanship in this body? What past mistakes can each of us 
own up to? What steps can we take to mend these old wounds? What more 
can we do to move forward together?
  We sometimes talk about the dysfunction of this body as if it is 
external to us, as if we bear no accountability for it, but at the end 
of the day, here we are: 100 men and women sent to represent 50 States 
of this Republic and 325 million people. In many ways, we have all let 
them down today.
  I can tell you what I am going to do tomorrow. I commit to working 
with anyone who wants to join me to try to strengthen and save the 
rules and traditions of this body and its effectiveness as an 
absolutely essential part of the constitutional order for which so many 
have fought and died. It is what all of our predecessors would have 
wanted.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.


                      Thanking Senators and Staff

  Mr. ISAKSON. Mr. President, I will be brief. I also want to make sure 
I don't take advantage of the personal privilege I have as a United 
States Senator, but I am going to anyway.
  I want Senator Coons from Delaware to pause for just a second.
  I want to thank every Member of the Senate, Republican and Democrat, 
and the staff of the Senate for the many kindnesses they have extended 
to me in the last 4 months during my injury and my recovery. I am on 
the way back home, in large measure, because of the support of the 
Members of the United States Senate. I am very grateful for that and 
the staff who have allowed that to take place. I say thank you very 
much.
  Notwithstanding what your politics are or what your partisanship is 
or anything else, this is a great institution and a great body because 
it is made up of great people.
  To that end, my friend Senator Coons from Delaware made an excellent 
speech, which I am going to adopt as my speech, since I don't have the 
strength to stand as long as I would like to, to talk about an issue so 
important. We do need to open all our minds and our hearts in the days 
ahead to make sure we know what direction we are going as Members of 
the Senate, regardless of our party and notwithstanding our 
partisanship.
  Neil Gorsuch, from everything I have seen--and I probably have seen 
more than anybody because I have been watching it on TV while I have 
been recovering. You guys have had to do it in debate. I have seen the 
real thing.
  His record, his testimony, the way he presented himself, the way 
Senator Grassley and Senator Feinstein allowed that hearing to go 
forth, I know we have a good man as a nominee to be a Supreme Court 
Justice of the United States, but the issues and the divide on the 
cloture, on a simple majority, and the rule change of 2013, and what 
has happened in the past, now has us in a position where we slowly but 
surely are moving to be a body that is another House of 
Representatives, not the United States Senate.
  The majority rule is a great philosophy. The majority winning is 
always a great philosophy, but I used to have a teacher who taught me. 
She said: If four equals the majority, three equals zero, but you 
always need to listen to the other three because sometimes they may be 
right. I think that is a good lesson for us today, and that was a 
grammar school teacher.
  If there are seven voting members, four does equal the majority, but 
three doesn't equal zero because the rest still count.
  As we move forward in the days ahead and judge other issues, whether 
they be partisan issues in terms of regular debate and general 
legislation, whether it be issues over the confirmation of judges or 
Secretaries or whatever it may be, let's be thoughtful, so that, not as 
a criticism of the House, but as a compliment to our Founding Fathers, 
we don't become a second House and later a unicameral body, majority 
rule and mob rule, and eventually waive rules, where passions overrule 
common sense and all of a sudden you find yourself digging your way out 
of a hole that you have created, rather than building the dreams you 
have always wanted to do.
  I commend the leadership of both parties for exercising their 
political and partisan desires. I commend each Member for being here to 
take part in

[[Page 5664]]

this debate today and being a part of it. That is what America is all 
about.
  Somewhere down the line, there is going to be something that is going 
to happen that is going to cause a resurrection of the debate that we 
have had today and another road to cross on which way we go in the 
future. The more we move away from a Senate that is a deliberative 
body, that is a dignified body, to a body that makes sure it knows 
where it is going before it moves forward, we won't be better off. If 
we move toward a body that is a rubberstamp of the House or a 
unicameral government of legislation, we will never be the United 
States of America our Founding Fathers intended us to be. That is what 
I believe, and that is what I think the end of this will be.
  To all our Members, I compliment them on everything they have had to 
say and have done.
  Judge Gorsuch, I am so proud to have someone like that who will 
hopefully serve on the bench of the U.S. Supreme Court with 
distinction.
  To all of us, our job is not finished. I look forward to being here 
and being a part of it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I thank the Senator for yielding to 
me. I wish to say how nice it is to see the Senator from Georgia back 
here with us. It means a lot to all of us to have Senator Isakson back 
on the Senate floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I don't wish to turn this into a bouquet-
tossing process, but I think it is very clear that Senators on both 
sides of the aisle are very, very pleased to see our friend from 
Georgia back today. We are wishing him health and Godspeed. We look 
forward to his full and complete recovery. We are so glad to have him 
here.
  I am also pleased that Senator Coons is on the floor, because I think 
it would be fair to say that Members on both sides of the aisle who 
have watched how Senator Coons has conducted himself throughout this 
extraordinarily contentious debate would say that Senator Coons makes 
all of us very, very proud.
  It is no secret that he has tried repeatedly to bring both sides 
together, and he and I have talked often about this. I think there are 
going to be opportunities for finding common ground on important 
legislation, breaking out of this gridlock that we all understand is 
not what the Senate is all about and forging toward more mainstream 
topics. When we get there, to a great extent, it will be because of the 
thoughtful comments of my friend from Delaware.
  Mr. President, the Senate is going to act on one of its most sacred 
and important constitutional duties, the advice and consent on the 
nomination of the next Associate Justice of the Supreme Court.
  The long tails of these Supreme Court debates stretch through 
generations and shape our government deep into the future. The choice 
the Senate makes in this extraordinary debate will have a profound 
impact, from the broadest governing statutes down to the most specific 
particulars of the law that affect our daily lives.
  There are several issues that are particularly relevant to this 
nominee that have gotten short shrift. I am talking about secret law, 
and warrantless wiretapping, death with dignity. I intend to discuss 
these issues shortly.
  I would like to begin, however, by stating that whether one supports 
or opposes Judge Gorsuch, our job would have been easier had the judge 
been more forthcoming in his testimony before the Judiciary Committee. 
He chose, however, not to do so. So what the Senate has to go by 
instead is the judge's lengthy record of adhering to a rigid and far-
right philosophy that is packaged in the branding of so-called 
originalism.
  The originalist says that our rights as a people are contained within 
and linked to our founding documents. But that viewpoint is plainly 
incorrect. In practice, originalism becomes a cover for protecting the 
fortunate over the poor, corporations over individuals, and the 
powerful over virtually every other American. It is a political agenda 
that masquerades as philosophy, an agenda whose sole intent is 
reserving power for those in power and limiting the recognition of the 
rights reserved to the people.
  Far from endorsing such a creed, our Constitution is actually a 
document of constraints, constraints that bind the government, not the 
people. The full scope of our fundamental rights as a people, as 
Justice M. Harlan once wrote, ``cannot be found in or limited by the 
precise terms of the specific guarantees elsewhere provided in the 
Constitution.'' The exact concept is written into the Bill of Rights 
itself. The Ninth Amendment says: ``The enumeration in the 
Constitution, of certain rights, shall not be construed to deny or 
disparage others retained by the people.''
  James Madison, the founder so significant that Americans are said to 
live in a ``Madisonian Democracy,'' was outspoken about the dangers of 
future readers or interpreters thinking that the fundamental rights 
contemplated by the Framers were limited to the Constitution or Bill of 
Rights.
  So our founding document and its Framers made clear that rights were 
not enumerated by the Constitution; they were retained by the people. 
Individual liberties, from personal privacy to a woman's right to vote, 
the choice of contraception and abortion, interracial marriage, same-
sex marriage, equal protection of the law--these liberties and, let me 
emphasize, many, many, many more have always existed. In fact, the 
Constitution and the Bill of Rights were silent on much of what 
Americans consider fundamental to a free people. That silence left the 
door open for the courts, as we shed the prejudices of a darker age, to 
recognize the true meaning of the words ``all men are created equal'' 
and ``inalienable rights.''
  The process has been painfully slow. The Constitution, like any 
document composed by politicians, is fraught with original sin. For 
example, the three-fifths compromise was a shameful device of political 
accommodation. Through long stretches of our history, political agendas 
have left many individual rights unrecognized or unprotected by the 
courts. They ruled in favor of the powerful and against the 
disadvantaged and the disenfranchised, often with the justification 
that their rulings adhered to the text of the Constitution.
  Nowhere did the Constitution expressly deny women the right to vote, 
but the Supreme Court ruled against Virginia Minor in 1875. The Federal 
Government was not expressly granted a right to intern residents of 
Japanese descent, but the Supreme Court allowed it in Korematsu. There 
was no constitutional basis on which to deny people of different 
ethnicities the right to marry. On those issues and more, our judges 
were wrong. Supreme Court Justices were wrong. In the service of the 
economic, political, and religious powers that be, the Court has 
defended slaveholders, denied the franchise, permitted racial, sexual, 
and other discrimination, and routinely--routinely--elevated the power 
of the State over individual liberties. Any defense of those rulings as 
adhering to the text of the Constitution is just plain wrong.
  Let's look more closely at women's voting rights. In Minor v. 
Happersett, the Supreme Court found that women did not have the right 
to vote because that right was not expressly stated anywhere in the 
Constitution. In a unanimous decision, the Court took the absurd 
position that a document predicated on voting, organized by voting, and 
dependent on voting for any amendment, still did not protect the right 
to vote for all citizens. Such is the intellectual bankruptcy of a long 
legal tradition sustained by its defense of the status quo.
  The 19th Amendment was a response to the abridgement of a fundamental 
right by political parties and their dependent courts, but it did not 
create a new right. It was a long overdue fix made necessary by an 
originalist court.
  If there is a national evolution that extends protection of rights 
and liberties to disenfranchised and oppressed

[[Page 5665]]

people, it is because with time, our wonderful country tends to correct 
its wrongs. It did so with a Civil War and the amendments that 
followed. It did so with women's suffrage and the Brown decision. It 
did so more recently with the Obergefell v. Hodges decision. 
Historically, our country has gradually recognized fundamental rights 
and liberties.
  ``Recognition''--I use that word intentionally. It is recognition 
because there are no new rights, per se. They are inalienable, and 
those rights are not limited to those spelled out in the Constitution. 
A jurist governed by that principle would respect individual rights, 
but that simply isn't the viewpoint taken by many so-called 
originalists on the far right today.
  The rightwing originalism looks, in my view, a lot more like the 
judicial philosophy that trampled on the rights of Americans in days 
past--a philosophy that throughout our history has left many Americans 
marginalized, disenfranchised, and oppressed by the State.
  Unfortunately, after listening very carefully to Judge Gorsuch 
present his views and after reviewing his writings, including some I 
will mention that specifically talk about my home State, I have no 
faith that Judge Gorsuch would be any different from this philosophy 
that I mentioned that has left so many Americans marginalized in our 
country.
  Judge Gorsuch not only has a long record of conservative activism in 
the courtroom, but he has demonstrated an out-and-out hostility toward 
the right of individuals to make decisions about their own lives and 
their own families without interference from the State. In one 
troubling instance, he went so far as to author a book attacking death 
with dignity. This of course has been a matter that historically has 
been left to the States, and the people of my State twice approved 
death-with-dignity ballot measures and our death-with-dignity laws have 
been in place for nearly 20 years. The Supreme Court upheld it more 
than a decade ago in a case known as Gonzalez v. Oregon. But Judge 
Gorsuch's record and his own words put the will of millions of 
Oregonians in question.
  Nothing in the Constitution gives the Federal Government the power to 
deny suffering Oregonians the right to make basic choices about the end 
of their lives. There is nothing in the Constitution that gives the 
Federal Government a power to deny people in my State the right to make 
those emotional, difficult, wrenching decisions about end of life. It 
is a private matter between individuals and doctors, and when 
politicians attempt to force regulations through the back door by going 
after doctors and their ability to prescribe, in my view that is an 
obvious over-the-line Federal infringement. But my guess is there are 
probably going to be some folks on the far right that are going to try 
that route again.
  Nothing Judge Gorsuch said in his confirmation hearing gave me any 
indication that he respects the death-with-dignity issue as settled law 
or that he would rule against Federal abuse of power to intrude on a 
private choice. The bottom line is that Judge Gorsuch is locked into an 
extreme rightwing viewpoint on this issue.
  And there is more. As I have listened to this debate and, 
particularly, the number of comments that some of those who have 
espoused the views that concern me so much come back to, part of this 
is that they are always talking about States' rights. States' rights--
that will be the altar that we really build our views and philosophies 
around. I will state, however, that when we listen to some of what they 
are having to say about States' rights, what they are really saying is 
that they are for the State if they think the State is right. That is 
not, in my view, what fundamental rights--particularly, ones that have 
been afforded to States--ought to be all about.
  As I indicated, I think his views with respect to death with dignity 
really do involve a Federal abuse of power in its intruding on private 
choices, but there are other issues that concern me as well.
  He has made it clear, in many instances, that he favors corporations 
at the expense of the working people. He has sided with insurance 
companies to deny disability benefits to people with disabilities, with 
large companies to deny employees basic job protections, and has even 
written that class action lawsuits are just tools for plaintiffs to get 
``free rides to fast riches.''
  No example better illustrates this tendency--and my colleagues have 
talked about it--than the case of the truckdriver in TransAm Trucking 
v. Department of Labor. In this case that leaves one practically 
speechless, Judge Gorsuch sided against a truckdriver who was fired for 
leaving his freezing cold truck when his life was in danger.
  I have another significant concern about Judge Gorsuch that came up 
in the context of his confirmation hearings. It is something that, I 
think, a lot of Americans and even those in government are trying to 
get their arms around. I have been on the Intelligence Committee since 
the days before 9/11, and one of the things we have come to feel 
strongly about is the danger of what I call ``secret law.'' I want to 
make sure people know exactly what I am talking about when I describe 
``secret law.''
  In the intelligence world and in the national security sphere, 
operations and methods--the tactics used by our courageous men and 
women who are protecting us and who go into harm's way to protect our 
people--always have to be secret. They are classified. They have to be 
because, if they were to get out, we could have Americans die--the 
people who do all of that wonderful work and, possibly, millions more. 
Sources and methods have to be secret, but the law and our public 
policies ought to always be transparent.
  The American people need to know about them because that is how we 
make informed decisions in our wonderful system of government. Voters 
are given enough information to make the choices. Sources and methods 
and operations have to be secret, but the law and political 
philosophies have to be public.
  Judge Gorsuch, as a senior attorney in the Department of Justice, was 
a practitioner of secret law. As I indicated, the public is not going 
to know about secret operations; we protect them. But trust in 
government and in our legal system cannot survive when Americans 
understand that the law says one thing and then the government or a 
secret court says that it means another. Secret law prevents the people 
from knowing whether their fundamental rights are being infringed by an 
unaccountable, unconstrained government that is aided by compliant 
courts.
  Secret law also keeps the Congress in the dark. Congress's job is to 
represent the people and oversee the government. Congress, barring 
rebellion, is the only recourse of a free people against an executive-
judicial alliance of secrecy that infringes their liberties. It is my 
view that secret law makes a mockery of the oath that Members of 
Congress, Justices, and each Senator here has taken to serve, protect, 
and defend our Constitution. Secret law is fundamentally corrosive to 
the rule of law in America.
  As we learned during his confirmation hearings, Judge Gorsuch was a 
supporter of secret law. In 2005, the CIA was conducting a secret 
torture program. In May of that year, the Department of Justice's 
Office of Legal Counsel determined, secretly, that torture techniques, 
such as waterboarding, were legal. Somehow, it deemed them consistent 
with statutory prohibitions on torture and the Constitution. This was 
extraordinary, willful, faulty legal analysis. It was entirely 
inconsistent with how the Congress and the public would read the law or 
the Constitution.
  Then our distinguished colleague from Arizona, Senator McCain, who 
knows a little bit about these issues in his having been subjected to 
them in the defense of our country, passed the Detainee Treatment Act. 
Senator McCain understood, in having fought for our country--given 
fully of himself--that our government had to find a way out of this 
problem. The McCain law prohibits the cruel and inhumane or degrading 
treatment that has been at issue here.

[[Page 5666]]

  By any measure, both the law--the language of the law, the clear 
intent of the Congress--and the context in which it was passed would 
leave every American to understand that a decision had been made by 
their elected officials to limit the power of government. Yet Judge 
Gorsuch, then an employee of the Bush administration's, had a solution.
  In December of 2005, he wrote to the author of the Justice 
Department's opinion, Mr. Bradbury, about a Presidential signing 
statement that would magically transform the McCain law into an 
endorsement of torture. What Judge Gorsuch wrote was that the McCain 
amendment that prohibited cruel, inhumane, and degrading treatment was 
best read as, essentially, codifying existing interrogation policies. 
In other words, according to Judge Gorsuch, John McCain's law--the one 
that passed 90 to 9 in the U.S. Senate--endorsed torture when it did 
just the opposite.
  The issue came up in his nomination hearing. Judge Gorsuch's 
explanation was that he was making the recommendation as a lawyer who 
was helping his client, which was the administration. I have to say, if 
there is one thing we have learned, this ``just following orders'' 
defense has gone on for far too long in this city. It is a small and 
feeble excuse and is unbecoming of a judge who has been nominated to 
the highest Court in the land. A judge who justifies government 
violations in the law and the Constitution just so his boss can say ``I 
was following the advice of counsel'' is making a choice to do wrong.
  The McCain amendment--what we passed here in the Congress--did not 
green-light torture. It did not codify torture, period. Anybody who has 
ever heard John McCain talk about this issue and describe his personal, 
horrifying experiences with torture knows that it, certainly, could not 
have been his intent when writing the bill.
  Any lawyer, especially one secretly advising the government, first 
has an obligation to the law and the Constitution. Judge Gorsuch's 
failure to recognize that principle and his choice to do wrong, in my 
view, disqualifies him from having a seat on the U.S. Supreme Court.
  Torture is not the only illegal program on which Judge Gorsuch has 
left his fingerprints. After news broke of the illegal, warrantless 
wiretapping program, Judge Gorsuch helped prepare testimony for the 
Attorney General, which asserted that these authorities are vested in 
the President and are inherent in the office.
  It added: ``They cannot be diminished or legislated away by other co-
equal branches of the government.''
  If that were the case, then no action taken in this area by the 
elected representatives of the people would have any weight. The 
Foreign Intelligence Surveillance Act, which has existed since the 
1970s, would just be some kind of advisory statement. Section 702 of 
the Foreign Intelligence Surveillance Act, which we are going to debate 
this year, would be little more than wasted paper. Then the USA FREEDOM 
Act, which ended the bulk collection of law-abiding Americans' phone 
records, might as well have never been signed into law.
  Voting for those bills and voting to confirm Judge Gorsuch call into 
question any Member's commitment to those laws that we passed.
  In response to a question during his nomination hearing, Judge 
Gorsuch said that he did not believe the Attorney General's testimony 
and that, again, he was only acting as a scribe, as a speechwriter. As 
such, he absolved himself of responsibility for his actions. Again, I 
think that it is just wrong to use this as an excuse. Like the 
endorsement of torture, assertions of Presidential authority to 
override congressional limits on warrantless surveillance rip at the 
fabric of the rule of law. Judge Gorsuch, a man who chose to get up and 
go to work every day for individuals who were violating the law, had 
the power to say no, but he would not make that choice.
  Colleagues, the Senate is voting to confirm an individual to a 
lifetime position on the Supreme Court. What Judge Gorsuch has stood 
for and against over the course of his legal career is all we have to 
go on in this debate, and we will have to reflect on it. A history of 
support, in my view, for secret, illegal, and unconstitutional programs 
is an unacceptable record for someone who is seeking a place on the 
Supreme Court.
  I have reminded this Senate of how, time and again, the Supreme Court 
has rubber-stamped the excesses of our executive and legislature over 
the years rather than defended individual liberty. That is the record--
the Supreme Court rubbing-stamping the excesses of the executive and 
legislature rather than protecting the individual liberties of the 
American people.
  It is my view that it is our job as Senators to ensure that the 
Supreme Court does not repeat the errors of yesterday--enshrining 
disenfranchisement and discrimination and denying equal protection of 
the law based on prejudice and political agendas. I believe that the 
only way to prevent this abuse is to appoint judges who recognize that 
the judiciary is a bulwark against any attempt to infringe on our 
unalienable rights.
  The bottom line for me, colleagues, is whether Judge Gorsuch 
recognizes that rights are reserved for the people.
  There is no respect for individual rights and liberty to be found in 
a viewpoint that allows for secret law to justify torture, that favors 
the powerful over the powerless, or that tramples on the rights of 
Americans to determine the courses of their own lives. Unfortunately, 
we have learned over the last few weeks that this is Judge Gorsuch's 
record.
  I oppose his nomination. I urge my colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Montana.
  Mr. DAINES. Mr. President, one of the most consequential votes that I 
will ever cast is a vote to confirm a U.S. Supreme Court nominee. It is 
a lifetime appointment to our Nation's highest Court. In fact, 
tomorrow, when I cast that vote for Judge Gorsuch, it will be the first 
chance I have had as a Senator to confirm a Supreme Court nominee.
  As it stands today, the U.S. Senate is on the precipice of confirming 
Neil Gorsuch to be our next U.S. Supreme Court Associate Justice. Just 
a few short hours ago, my colleagues on the other side caved to the 
pressures of the far left and unleashed an unprecedented, partisan 
filibuster for the first time in 238 years of this institution.
  I was honored to be at the White House's East Wing on January 31, 
with President Trump, when he made the announcement that Judge Neil 
Gorsuch would be the nominee to replace Antonin Scalia.
  Judge Gorsuch's academic accomplishments are nothing short of being 
absolutely stellar. His decision to serve as a Justice on the highest 
Court in the land is a true testament to his character, his 
intelligence, his understanding of the law, and his commitment to the 
Constitution.
  Judge Gorsuch was appointed by President George W. Bush to the Tenth 
Circuit in 2006 and was unanimously confirmed by the U.S. Senate. In 
fact, some of those Democrats who did not oppose Judge Gorsuch then 
included his Harvard Law classmate Barack Obama, Vice President Joe 
Biden, and Minority Leader Chuck Schumer.
  Of utmost importance in a Justice is the desire and the ability to 
apply the law as it is intended, not to legislate from the bench. So I 
can say that I was very thrilled to here Judge Gorsuch say this: ``A 
judge who likes every outcome he reaches is very likely a bad judge, 
stretching for results he prefers rather than those the law demands.''
  On February 9, I met Judge Gorsuch in my office. Let me tell my 
colleagues, he is impressive. We discussed the Constitution. We 
discussed the Second Amendment. I represent the State of Montana. I can 
tell my colleagues that as we look at our Constitution and our Bill of 
Rights, the Second Amendment is very important to the people of 
Montana. He will defend the Second Amendment. We also talked about the 
separation of powers, the role of government and federalism, and the 
Fourth Amendment.

[[Page 5667]]

  Through 4 full days of hearings, Judge Gorsuch eloquently answered 
Judiciary Committee members' questions, and certainly, before the 
entire viewing audience of the American people, he showcased his 
brilliant legal mind.
  Prior to his hearing, he met with 80 Senators. He provided the 
Judiciary Committee with 70 pages of written answers regarding his 
personal record and over 75,000 pages of documents, including speeches, 
case briefs, opinions, and written works going as far back as his 
college days. The White House archives produced over 180 pages of email 
and paper records related to Judge Gorsuch's time at the Department of 
Justice.
  During the committee hearing, Judge Gorsuch sat for three rounds of 
questioning totaling nearly 20 hours. In fact, when Judge Gorsuch 
appeared before the Judiciary Committee of the U.S. Senate, it was the 
longest hearing of any nominee in this century. He answered nearly 
1,200 questions during that hearing. By the way, that is nearly twice 
as many questions as Justices Sotomayor, Kagan, or Ginsburg.
  Today's vote was nothing more than a campaign fundraising effort for 
Senate Democrats. In fact, the Democratic Members who have pledged to 
support him already have threats from liberals of voting them out of 
office. It is a sad day that this body has become so partisan that, for 
the first time in this body's history, we had a partisan filibuster to 
a more than qualified nominee.
  Judge John Kane, a judge appointed by Democrat Jimmy Carter, said in 
an op-ed for an online legal website:

       As the saying goes, we could do worse. I'm not sure we 
     could expect better, or that better presently exists.

  There is just no arguing that Judge Gorsuch a mainstream nominee.
  Take the remarks of Obama's Solicitor General, Neal Katyal:

       Judge Gorsuch is one of the most thoughtful and brilliant 
     judges to have served our nation over the last century. As a 
     judge, he has always put aside his personal views to serve 
     the rule of law. To boot, as those of us who have worked with 
     him can attest, he is a wonderfully decent and humane person. 
     I strongly support his nomination to the Supreme Court.

  I remind my colleagues that those are the words of President Obama's 
Solicitor General.
  A nominee of this caliber who has undergone, as I just mentioned, 
rigorous vetting deserves the respect of the Members of this Chamber. 
Yet Senate Democrats walked down the road that their former leader did 
in 2013 by changing the precedent of this body and allowing the U.S. 
Senate to become even more partisan.
  The American people want Judge Gorsuch. The polls show that. In fact, 
they demanded nine Justices on the Court. Today, we are one step closer 
to confirming him.
  Judge Gorsuch is the right replacement to honor the legacy of Justice 
Antonin Scalia. He has widespread support across the State of Montana, 
including our agriculture groups, the NRA, and leaders from across our 
State. Four Indian Tribes in Montana have endorsed Judge Gorsuch.
  The American people deserve a Supreme Court Justice who will uphold 
the rule of law and follow the Constitution. The American people 
deserve a Supreme Court Justice who doesn't legislate from the bench. 
The American people deserve Judge Gorsuch to serve them on the U.S. 
Supreme Court.
  As the American people watched Judge Gorsuch before the Judiciary 
Committee, they saw an exceptionally qualified nominee for the highest 
Court in the land. They saw someone who is bright--Columbia 
undergraduate, Harvard Law School, Oxford Ph.D. I would submit that 
Judge Gorsuch's intellectual capacities are only exceeded by the size 
of his heart. This is a kind man. This is a brilliant man. This is an 
independent jurist.
  I very much look forward to casting my vote tomorrow to confirm Judge 
Gorsuch.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, today we are one step closer to a vote to 
confirm Judge Gorsuch to the Supreme Court. I look forward to the vote 
tomorrow. We will be confirming a Justice to the Supreme Court who is 
supremely qualified, who is a mainstream judge, who respects the rule 
of law and the Constitution, and who will rule impartially from the 
bench--someone who will call balls and strikes. That is what I believe 
the American people look for when they look for a Supreme Court 
Justice.
  While it was always clear that some Democrats would oppose any 
Supreme Court candidate the President nominated, I had hoped that 
partisanship would be at least somewhat limited. I had hoped the 
Democrats would want to preserve the Senate's nearly 230-year tradition 
in confirming Supreme Court Justices by a simple-majority vote. And I 
had hoped that more than a handful of Democrats would join us to 
confirm one of the most, as I said, supremely qualified judges in my 
memory. That is not what happened. Despite Judge Gorsuch's 
qualifications, despite the support for his nomination from both 
liberals and conservatives, the vast majority of Senate Democrats were 
determined to block this confirmation.
  Of course, it wasn't really ever about Judge Gorsuch. It is not that 
Democrats were determined to block his confirmation; it is that they 
were determined to block any confirmation.
  Democrats tried to offer reasons to oppose Judge Gorsuch, but they 
struggled to come up with anything plausible. The Senate minority 
leader actually came to the floor and tried to argue that he was 
worried that Judge Gorsuch would not be ``a mainstream justice.''
  Over the course of 2,700 cases on the Tenth Circuit, Judge Gorsuch 
has been in the majority 99 percent of the time--99 percent. In 97 
percent of those 2,700 cases, the opinions were unanimous. So I would 
love to hear an explanation for how exactly a judge who has been in the 
majority 99 percent of the time is out of the judicial mainstream. Was 
the minority leader attempting to argue that all of the judges on the 
Tenth Circuit, including those appointed by Democratic Presidents, are 
out of the mainstream?
  The fact is that Democratic opposition to Judge Gorsuch had nothing 
to do with his qualifications. I doubt that any of my colleagues on the 
other side of the aisle really think that Judge Gorsuch is out of the 
mainstream or that he lacks the qualifications of a Supreme Court 
Justice, but they opposed him anyway.
  If they opposed a judge with a distinguished resume and a reputation 
as a brilliant jurist; if they opposed a judge who is known for his 
fairness and impartiality; if they opposed a judge whose nomination has 
been repeatedly supported by liberals, as well as conservatives; if 
they opposed a judge who unanimously received the highest possible 
rating from the American Bar Association--a rating, I might add, that 
the minority leader once called the ``gold standard'' for judicial 
nominees; if they opposed a judge a number of them supported 10 years 
ago, then it is abundantly clear that their opposition wasn't about 
this judge but about any judge this President nominates. Thus, 
Republicans were left with no real alternative but to act to preserve 
the Senate's tradition of giving Supreme Court nominees an up-or-down 
vote. This wasn't my preference. I preferred to leave room for a 
minority to block a judge who is truly not fit for office. But it was 
the only alternative we were left with if we wanted to confirm anyone 
to the Supreme Court.
  Historically, confirming judges was not a partisan process. During 
the George W. Bush administration, however, Democrats decided they were 
going to change that. They were mad back then too--mad that a 
Republican President was in charge. Apparently, modern-day Democrats 
are not reconciled to the fact that in our system of government, it is 
not always the Democrats who win.
  Anyway, the Democrats were mad, and they decided that the 
historically bipartisan process of confirming judicial nominees was 
going to change. Their 2003 filibuster of Miguel Estrada, who had been 
nominated to a seat on the Court of Appeals for the D.C. Circuit, was 
the first time a judicial nominee who enjoyed clear majority support

[[Page 5668]]

was not confirmed because of a filibuster.
  Democrats ultimately successfully filibustered no fewer than 10 Bush 
nominees to appellate courts. That was a massive reversal in Senate 
history. Suddenly the normally smooth process of confirming a 
President's judicial nominee had been turned into an exercise in 
partisanship.
  Ten years later, Democrats struck again when they employed the 
nuclear option to ensure that they could pack the D.C. Circuit--despite 
the fact that at the time, when the current minority leader announced 
that Democrats would ``fill up the D.C. Circuit one way or the other,'' 
Republicans had blocked just two of President Obama's circuit nominees 
and had confirmed 99 percent of his judges. So 215 were confirmed out 
of 217 under President Obama up to that point.
  And now here we are today. Democrats are again mad that they lost an 
election, that they can't control the nomination process, and they once 
again turned to ``no-holds-barred'' partisanship. They made it clear 
that no Republican nominee would ever make it to the Supreme Court; 
thus, we had to act to ensure that Supreme Court nominees can receive 
an up-or-down vote going forward.
  In the Senate's nearly 230 years, the filibuster has been used to 
block a Supreme Court nominee exactly once--one time. Supreme Court 
Justice Abe Fortas's nomination to be Chief Justice of the Supreme 
Court was blocked by a bipartisan coalition, in part over ethical 
concerns. That is how strong the Senate's bipartisan tradition of an 
up-or-down vote on Supreme Court nominees has been--230 years, one 
time, and it was bipartisan. I am deeply sorry that the Democrats were 
determined to end that tradition.
  Judge Gorsuch should never have faced the threat of a filibuster. 
There was no reason--no reason other than the most flagrant partisan 
politics--to block this supremely qualified nominee from the Supreme 
Court.
  As I said, I look forward to tomorrow and to this final vote where we 
will have an opportunity to confirm to the Supreme Court this well-
qualified, mainstream nominee who fundamentally respects the rule of 
law and the Constitution of the United States and will act impartially 
as a Justice for the American people.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SHELBY. 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. SHELBY. Mr. President, I wish to address the Senate for a few 
minutes about the nomination of Judge Neil Gorsuch, which is the topic 
of the day and has been the topic for weeks. It probably has been said, 
but I am going to go through some of it again.
  Judge Gorsuch is a native of Denver, CO, where he currently resides 
with his wife Louise and their two daughters. He is currently 49 years 
old.
  I want to talk about some of his credentials. Judge Gorsuch received 
his bachelor of arts degree from Columbia University in 1988, his juris 
doctor from Harvard Law School in 1991, and a doctorate in legal 
philosophy from Oxford University in the UK in 2004.
  At Columbia, he was a member of Phi Beta Kappa, a Truman scholar at 
Harvard Law School, and a Marshall scholar at Oxford.
  Following law school, Judge Gorsuch served as a law clerk to Federal 
appellate judge David Sentelle and then to Justice Byron White of the 
U.S. Supreme Court and Associate Justice Anthony M. Kennedy of the 
Supreme Court.
  In 1995, Judge Gorsuch entered private practice as an associate of 
Kellogg, Huber, Hansen, Todd, Evans & Figel, and he was elected partner 
in that law firm in 1998. His practice focused on general litigation in 
both trial and appellate matters.
  Judge Gorsuch left private practice in 2005 to serve as the Principal 
Deputy to the Associate Attorney General at the Justice Department in 
Washington.
  President George W. Bush nominated Judge Gorsuch to the Tenth Circuit 
Court of Appeals, located in Denver, on May 10, 2006. He was confirmed 
in the Senate by a voice vote on July 20, 2006.
  We talk about qualifications for judges. I want to share some of his. 
Judge Gorsuch has served over a decade on the U.S. Court of Appeals for 
the Tenth Circuit. He has an outstanding judicial record that speaks 
for itself. He has participated in over 2,700 appeals on the Tenth 
Circuit, and 97 percent of them have been unanimously decided. In those 
cases, he was in the majority 99 percent of the time.
  Of the approximately 800 opinions he authored on the Tenth Circuit, 
98 percent of his opinions were unanimous, even on a circuit where 7 
out of the 12 active judges were appointed by Democratic Presidents. 
His opinions on the Tenth Circuit have the lowest rate of dissenting 
judges at 1.5 percent. That is unheard of. Out of the eight cases he 
has decided that were reviewed by the U.S. Supreme Court, seven were 
affirmed and one was vacated.
  Judge Gorsuch's nomination to the Tenth Circuit Court of Appeals in 
2006 was met without opposition, and he was confirmed by voice vote.
  Notably, Senators serving during this time include a lot of my former 
colleagues: then-Senator Barack Obama, Senator Joe Biden, Senator 
Hillary Clinton, Senator John Kerry, Senator Harry Reid, and 12 other 
current sitting Democratic Senators in this body, including the 
minority leader, Chuck Schumer.
  In March, the American Bar Association, ABA, unanimously gave Judge 
Gorsuch a ``well qualified'' rating, their highest possible mark. 
Minority Leader Schumer and Senator Leahy have both previously referred 
to the ABA as the ``gold standard by which judicial candidates are 
judged.''
  In the area of jurisprudence, Judge Gorsuch has a mainstream judicial 
philosophy, which he clearly articulated during the Senate Judiciary's 
confirmation hearing.
  I believe his record is unequivocal in that he believes judicial 
decisions should be based on the law and the Constitution and not 
personal policy preferences. He has a deep commitment to the 
Constitution and its protections established by our Founding Fathers, 
including the separation of powers, federalism, and the Bill of Rights. 
Judge Gorsuch's decisions demonstrate that he consistently applies the 
law as it is written, fairly and equally to all individuals.
  Additional information about Judge Gorsuch: The American people 
deserve to have their voices heard in selecting Justice Scalia's 
replacement. This is what we are doing.
  Some of my colleagues intend to oppose Judge Gorsuch based solely on 
the fact that they disagree with the outcome of the Presidential 
election.
  During President Trump's campaign last year, he clearly defined the 
type of Justice he wished to nominate to the current vacancy. He even 
published, as you will recall, a list of 21 judges who possessed what 
he believed are the necessary qualifications to serve on the U.S. 
Supreme Court.
  Following Judge Gorsuch's nomination, he sat for over 20 hours of 
questioning in front of the Senate Judiciary Committee in the Senate--
the longest hearing of any 21st-century nominee. Additionally, he was 
given 299 questions for the record by my colleagues on the other side 
of the aisle. This also is the most in recent Supreme Court 
confirmation history.
  Simply put, I believe this is the most open and transparent process 
in choosing a Supreme Court nominee ever conducted by an 
administration. By filibustering this nomination, some of my colleagues 
are breaking a nearly 230-year tradition of approving Supreme Court 
nominees by a simple-majority vote.
  I believe the American people spoke clearly when they elected 
President Trump. I believe this is the American people's seat, and I 
believe Judge Gorsuch is an exceptional choice for the Supreme Court. 
He deserves an up-or-down vote, and that is why I believe we are 
getting ready in the next few hours to confirm him.

[[Page 5669]]

  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. BLUMENTHAL. 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. BLUMENTHAL. Mr. President, as we finished the vote just hours 
ago, I could not help but notice a number of my colleagues on the other 
side of the aisle high-fiving each other. That image stays with me as I 
stand here now. It saddens me. There is no cause for celebration in 
what happened in the Senate just hours ago. No one should sleep well 
tonight. No one should underestimate the magnitude of what happened 
here. Damage was done to our democracy, in fact, to the institutions 
that are the pillars of our democracy--the United States Supreme Court 
and the Senate itself.
  Today is, indeed, one of my saddest days in the Senate. Sadder than 
anything is the damage that has been caused to the Supreme Court by 
eroding and undermining trust and respect for an institution that has 
power only because of its credibility with the American people. It has 
no armies or police force; all it really has is the confidence and 
respect of the American people.
  Today, raw political power has been exercised to break the rules and 
norms of this body so that a nominee could be confirmed. The only way 
that he could be confirmed was, in fact, to wreck the rules, a nuclear 
option that will have enduring fallout and rippling repercussions, 
perhaps for years come.
  For myself, I would state unequivocally that I hope we will work 
together on issues where we have common ground, where we can reach 
common solutions on infrastructure, on tax reform, on immigration 
issues.
  No one should make light of the potential fallout, as there is in any 
nuclear explosion, from this action today.
  The Senate has broken with decades of bipartisan practice when it 
comes to the U.S. Supreme Court. The practice and the tradition was 
that Presidents of either party would consult with Members of both 
parties in this body before making a nomination so as to ensure a 
mainstream nominee, and that nominee would be in the mainstream even 
before his or her selection so that there was some modicum of comity 
and so that respect for this body, as well as the courts, would be 
preserved.
  My concern is that the contagion of partisanship will infect the 
court system as a whole. All of the nominations to lower courts, as 
well as the appellate courts, will be affected.
  My hope is that we can avoid that truly cataclysmic outcome, a 
nuclear explosion, in some ways even more deafening and damaging than 
the one used today would be because our courts are the bulwark of our 
democracy. An attack on our courts is an attack on the only check we 
have against tyranny and autocratic erosion of those rights. That is 
why the nonpartisanship of our courts is so important.
  The Supreme Court, of all our courts, should be above politics. In 
fact, that is why the 60-vote rule for the Supreme Court was so 
important. The Supreme Court is different: nine Justices appointed for 
life to the highest Court in the land. In some ways, it is an 
anachronism in our democracy--unaccountable, unelected, sitting for 
life with the power to strike down actions of elected representatives 
and an elected Executive by issuing words on paper without the direct 
means to enforce them, depending only on respect and credibility from 
the American people. To approve nominees by a razor-thin majority is a 
disservice to the Court and to our democracy.
  Supreme Court Justices do more than just follow the law; they have to 
resolve conflicts in the law and differences among the lower courts 
where they disagreed and, in fact, ambiguities in the statute, where 
there is lack of clarity, where this body is unable to reach consensus 
and, in effect, decides to agree, to the extent it can, and leave some 
question to administrative agencies, which rightly are entitled to 
respect, as they implement the law.
  Confidence and trust are essential, and we have undermined it today. 
Our Republican colleagues have gravely damaged it by the actions taken 
today.
  I have urged my colleagues to reject Neil Gorsuch because I believe 
he is out of the mainstream, because he failed to answer questions 
about whether he agreed with established core precedents essential to 
rights of privacy and equality under the law, because he has a judicial 
philosophy that would involve substituting judgments of courts for 
administrative agencies and banning the Chevron doctrine, and because 
he favored in many of his actions, opinions, writings the interests of 
corporations over individual rights.
  We have debated the merits of this nominee. I believe that his 
repeated evasion of the questions that were put to him leaves us with 
the inescapable conclusion that he passed the Trump test; that he is 
not a neutral caller of balls and strikes; that he is, in fact, an 
acolyte of the of the rightwing groups that screened and suggested his 
name; and that he would carry out not only the Trump litmus test to 
overrule Roe v. Wade, strike down gun violence provisions, but also 
other unknown decisions that would implement that far-right 
conservative agenda. We can debate whether that view is right or wrong.
  Today is one of my saddest days in the Senate. It goes more to the 
institutions that have been demeaned and degraded: the U.S. Senate and 
the Supreme Court. My hope is that maybe it will be a turning point. 
Maybe we can reconstruct the sense of bipartisanship and comity that 
existed for so many years. Many of my colleagues on the other side have 
expressed to me their misgivings about what was done today.
  The obstruction of Merrick Garland's nomination was, as one of my 
colleagues put it, ``the filibuster of all filibusters.'' It was 
another step in a continuing progression, culminating in today's 
outcome that very much betrays the spirit and values of a bipartisan 
selection of Supreme Court nominees because the highest Court in the 
land is different.
  I had the extraordinary honor to clerk for a Justice on the U.S. 
Supreme Court, Harry Blackmun, who was appointed by a Republican, 
President Richard Nixon. He grew as a Justice and surprised a lot of 
people. He, no doubt, surprised the President who appointed him. And 
that is what happens to really extraordinary men and women who serve on 
our courts as well as in the U.S. Senate; they grow in the job.
  Choosing a U.S. Supreme Court Justice is one of the most solemn and 
important duties that a President has, and confirming her or him is one 
of the most important tasks we have in this body.
  Even at the most difficult and contentious times, as I served then as 
a law clerk and as I have litigated since then for several decades, I 
have never doubted that judges were working in good faith to uphold the 
rule of law. Whether they ruled my way or not, I believed that we were 
working to try to be above partisan politics and uphold the rule of law 
and do the right thing to follow the law.
  The Supreme Court does more than follow; it leads. Today's vote is a 
significant challenge to that principle and perhaps the most difficult 
that we have seen in recent history. It threatens to exact profound 
damage on the confidence and trust the American people have in the 
Supreme Court and perhaps in the courts overall, and that is a danger 
for all of us.
  In my view, when the history of this time is written, there will be 
two heroes: the free press that has uncovered abuses and wrongdoing 
despite opposition from many powerful forces, and our independent 
judiciary that has upheld their right to do it and, also, the rights of 
countless Americans in many areas of law.
  Today's action threatens those two institutions in our society. It 
undermines our rules. It would not have happened without a choice made 
by the Republican leadership that they were willing to break the rules 
to achieve this result.
  I am determined to try to move forward in a positive way, in 
legislation

[[Page 5670]]

as well as in protecting and enhancing our courts, giving them the 
resources they need to do their job--and law enforcement, the resources 
needed to uphold the rule of law.
  We cannot hold the Supreme Court hostage to any ideology, and that is 
a lesson from today and from the past year that we should all heed.
  Mr. President, I will continue to talk about this topic because I 
believe it is so profoundly important to our Nation, but for now, I 
yield the floor.
  The PRESIDING OFFICER (Mr. Cassidy). The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, when they write the history of our times, 
I am sure that when it comes to Senate history, this is going to be a 
chapter, a monumental event in the history of the Senate not for the 
better but for the worse. After we are all long dead and gone, somebody 
may be looking back and trying to figure out what happened or what 
motivated people.
  I am going to tell you what has motivated me since I have been in the 
Senate: an understanding that the job of a Senator, when it comes to 
advice and consent, is not to replace my judgment for that of the 
President, not to nullify the election, but to be a check and balance 
to make sure that the President of either party nominated someone who 
is qualified for the job and is capable from a character point of view 
of being a judge for all of us, having the intellect, background, 
judgment, experience to carry out the duties of a Supreme Court 
Justice.
  When President Obama won the White House, I suspected that he would 
pick judges who I would not have chosen, based on our different 
philosophies of liberal-conservative jurisprudence.
  This is what Greg Craig, the former White House Counsel in the Obama 
administration, said about Elena Kagan, who is now on the Court: 
``Kagan is . . . a progressive in the mold of Obama himself.''
  This is what Vice President Biden's Chief of Staff Ronald Klain said 
about Elena Kagan: ``Elena Kagan is clearly a legal progressive . . . 
[and] comes from the progressive side of the spectrum.''
  I think that was an accurate description of her and Sonia Sotomayor, 
who both are progressive Justices who come from the progressive side of 
the judicial spectrum. Both are highly qualified, capable women who had 
stellar legal records. Even though they had outcomes I did not agree 
with, they were certainly in the mainstream. Both had been judges. I 
think he chose people I would not have chosen, but they were really 
highly qualified.
  I was the only member of the Judiciary Committee on the Republican 
side to vote for either Justice Kagan or Justice Sotomayor because I 
used a standard that I thought was constitutionally sound. I am not 
telling any other Senator what they should do. I am just trying to 
explain what I did. In the Federalist Papers, No. 76, written April 1, 
1788, Mr. Hamilton said:

       To what purpose then require the co-operation of the 
     Senate? It would be an excellent check upon a spirit of 
     favoritism in the President. It would portend greatly to 
     prevent the appointment of unfit characters from state 
     prejudice, from family connection, from personal attachment, 
     and from a view to popularity.

  So, from Hamilton's point of view, it was a check and balance against 
a crony or unqualified person, someone who was popular but not 
qualified for the job, somebody who was supported because they were 
close to the President and not qualified for the job, someone who was 
appointed because they were a favorite son of a particular State. That 
would not be fair to everybody else. When you look at the history of 
the advice and consent clause, it is pretty clear that the Founding 
Fathers did not have in their minds that one party would nullify the 
election when the President of another party was chosen by the people 
when it came to Supreme Court confirmations because they chose somebody 
they did not agree with philosophically.
  I voted for Elena Kagan and Sonia Sotomayor, knowing they come from 
the progressive judicial pool. Neil Gorsuch is one of the finest 
conservatives that any Republican President could have chosen, and he 
is every bit as qualified as they were. His record is incredible--10\1/
2\ years on the bench, 2,700 cases, and 1 reversal. He received the 
highest rating of the American Bar Association, ``well qualified,'' 
just like Sonia Sotomayor and Elena Kagan.
  To merit the committee's rating of ``well qualified,'' a Supreme 
Court nominee must be a preeminent member of the legal profession, have 
outstanding legal ability and exceptional breadth of experience, meet 
the very high standards of integrity, professional competence, and 
judicial temperament. The rating of ``well qualified'' is reserved for 
those found to merit the committee's strongest affirmative endorsement. 
By unanimous vote on March 9, the standing committee awarded Judge 
Gorsuch this highest rating of ``well qualified,'' just like they did 
for Sonia Sotomayor and Elena Kagan. He has 2,700 court decisions, 1 
reversal, and praise from all areas of the law--left, right and middle. 
The ABA report of 900 cases describes a very thoughtful man, an 
incredible judge, and a good person. So I don't think anybody could 
come to the floor and say--even though they may disagree with the 
outcome--that Judge Gorsuch is not qualified, using any reasonable 
standard, to be chosen by President Trump. He is every bit as qualified 
as the two Obama appointments. So, clearly, qualifications no longer 
matter like they used to.
  Antonin Scalia--whom Judge Gorsuch, hopefully, will soon replace as 
Justice Gorsuch--was confirmed by the Senate 98 to 0. Ruth Bader 
Ginsburg was confirmed 96 to 3. I would argue that you could not find 
two more polar opposite people when it comes to philosophy than Justice 
Ginsburg and Justice Scalia. They became very dear friends, but nobody 
in their right mind would say there is not a difference in their 
judicial philosophy.
  Strom Thurmond, my predecessor, a very conservative man himself, 
voted for Ms. Ginsburg. Clearly a conservative would not have chosen 
her because she was general counsel of the ACLU. I can tell you that 
Ted Kennedy and other people on the progressive side of the aisle would 
not have voted for Antonin Scalia based on philosophy. Something has 
happened in America from 1986 to 1993. The Constitution hasn't changed. 
Something has changed. I think the politics of the moment have taken 
the Founding Fathers' concept and turned it upside down. From the time 
that Scalia was put on the Court and Ginsburg was put on the Court, 
everything has changed.
  I was here when the first effort to filibuster judicial nominations 
was made in earnest. In the first term of Bush 43, there was a 
wholesale filibuster on the circuit court nominees of President Bush. I 
was part of the Gang of 14 that broke the filibuster. We lost a couple 
nominees but we did move forward. We said there would be no further 
filibuster of judges unless there were extraordinary circumstance. That 
allowed Alito and Roberts to go forward. Both of them got a good vote. 
On Alito we had to get cloture, but we got 78 votes.
  Clarence Thomas was probably the most controversial pick in my 
lifetime. If you can remember that hearing, it was front page news 
every day and on TV every night. Not one Democratic Senator chose to 
filibuster him. He got an up-or-down vote and he passed 52 to 48. They 
could have chosen to require cloture, but they didn't.
  So this is the first time in the history of the Senate that you have 
a successful partisan filibuster of a Supreme Court nominee. Abe Fortas 
was filibustered to be Chief Justice of the Supreme Court by almost an 
equal number of Democrats and Republicans because of ethical problems, 
and he eventually resigned.
  So we are making history today--the first successful filibuster in 
the history of the Senate to deny an up-or-down vote on a nominee to 
the Supreme Court. It breaks my heart that we are here. I don't know 
what to do other than to change the rules to have some sense of 
fairness. I can't believe that Judge Gorsuch is not qualified by any 
reasonable standard. I voted for Sotomayor and Kagan. Nobody even asked 
for a cloture vote. They went straight to the floor. One got 62 votes 
or 63 votes, and the other got 68 votes.

[[Page 5671]]

I don't know why we can't do for Judge Gorsuch what was done for 
Sotomayor and Kagan.
  We keep hearing about Judge Garland. Judge Garland is a fine man and 
would have been a very good Supreme Court Justice. Justice Scalia died 
in February of 2016 after three primaries were already held. The 
nominating process was well on its way for picking the next President. 
So this was an election year. I remember what Joe Biden said in 1992, 
the last year of Bush 41's term, when there was the suggestion that 
somebody might retire in the election year, and he said, basically: If 
someone steps down, I would highly recommend that the President not 
name someone, not send a name up. If he, Bush, did send someone up, I 
would ask to seriously consider not having a hearing on that nominee. 
It would be our pragmatic conclusion that once the political season is 
underway, and it is, action on a Supreme Court nomination must be put 
off until after the election campaign is over. That is what Vice 
President Biden said when he was chairman of the Senate Judiciary 
Committee in 1992.
  That made sense. President Trump put a list of names out that he 
would choose from if he became President, which was historic. Part of 
the contest in 2016 was about the Supreme Court. I have no problem at 
all saying that, once the campaign season is afoot, we will let the 
next President pick. That is no slam on Judge Garland. I have zero 
doubt that if the shoe had been on a different foot, there would not 
have been a different outcome. I can't imagine Harry Reid being in 
charge of the Senate in 2008 and allowing President Bush, in the last 
year, to nominate somebody in the Court and that they would approve 
that decision once the campaign season had started in 2008. I say that 
knowing that it was Senator Reid who chose to change the rules in 2013, 
which broke the agreement of the Gang of 14 in part.
  Here is what Harry Reid said in 2005:

       The duties in the U.S. Senate are set forth in the 
     Constitution of the United States. Nowhere in the document 
     does it say the Senate has a duty to give the Presidential 
     nominee a vote.

  All I can say is that in the 100-year history of the Senate, from 
today going backward, there has been one person put on the Court when 
the President was of one party and the Senate was held by the other 
party and a vacancy occurred in the last year of a Presidential term.
  We have done nothing that would justify Judge Gorsuch to be treated 
the way he has been treated, and he has been treated pretty badly. Here 
is what Nancy Pelosi said: ``If you breathe air, drink water, take 
medicine, or in any other way interact with the courts, this is a very 
bad decision.''
  All I can say is that Judge Gorsuch does not deserve that. That is a 
political statement out of sync with the reality of who this man is and 
the life he led, and it is that kind of attitude that has gotten us to 
where we are today.
  I can also say that there is blame on my side too. Nobody has clean 
hands completely on this. When Justice Sotomayor was nominated, she 
made a speech to the effect that a White man would have a hard time 
understanding what life is like for minorities. That was taken to 
believe that she somehow could not be fair to White men. That was a 
speech she gave that was provocative, but I never believed it was an 
indication that she somehow was prejudiced against White men. The 
reason I concluded that was because anybody who had known her, 
including White men, said she was a wonderful lady.
  I remember Elena Kagan. The attack on our side was that she joined 
with the administration of Harvard to kick the ROTC unit off campus. 
Somehow that made her unpatriotic. My view was that it was the position 
of a very liberal school called Harvard, and no one could ever convince 
me that Elena Kagan was unpatriotic. She seemed to be a very nice, 
highly qualified lady, and that decision by Harvard could not be taken 
to the extreme of saying that she is not fit to serve on the Court. So 
I was able to look beyond the charges leveled at these two ladies on 
our side to understand who they really were. When you look at people 
who know these judges the best, they can tell you the most accurate 
information. In the case of Kagan and Sotomayor, there were a lot of 
people, left and right, who said they were well-qualified, fine ladies. 
When you look at what was said about Judge Gorsuch in the ABA report, 
it is just an incredible life, well lived.
  So here we are. We are about to change the rules. Up until 1948, it 
was a simple majority requirement for the Supreme Court. As a matter of 
fact, as for most Supreme Court nominations in the history of the 
country, a large percentage were done based on a voice vote. It is only 
in modern times that we got in this political contest over the Court. 
It probably started with Judge Bork.
  There is some blame to go around on both sides, but I can say that 
while I have been here, I have tried to be fair the best that I know 
how to be. I voted for everybody I thought was qualified. I said, as 
for Judge Garland, let the next President decide. At the time I said 
that in March 2016, I had no doubt in my mind that Donald Trump would 
lose and that Hillary Clinton would probably pick somebody more liberal 
than Garland. But it made sense to me in that stage of the process to 
let the next President pick.
  The fact that we are filibustering this man says a lot about the 
political moment. If this were a controversial character, I might 
understand it better. When you look back and try to figure out what we 
did and how we got here, I can say that we took one of the best people 
that President Trump could have nominated--somebody I would have chosen 
if I had gotten to be President. I think Paul Ryan, Mike Pence, or any 
of us would have chosen Neil Gorsuch, and he was denied an up-or-down 
vote. That says all we need to know about the political moment.
  We will change the rules. It will have an effect on the judiciary, 
and it won't be a good one, because in the future, judges will be 
selected by a single party, if you have a majority with no requirement 
to reach across the aisle, which means the judges will be more 
ideological.
  When you have to go over there to get a few votes or when they have 
to come over here to get a few votes, you have to water down some of 
your choices and the most extreme ideological picks or a party or 
President are probably not going to be able to make it through. Now 
they will. I think what you will see over time is that the most 
ideological people in the Senate are going to have a lot to say about 
who is chosen by the President. It will change the nature of the 
judiciary.
  To the Senate itself, every Senate seat now becomes a referendum on 
the Supreme Court. So when we have a contest for a Senate seat, it is 
not just about the Senate. It is about the seat affecting the outcome 
of the Court, because all you need is a simple majority. Whether or not 
it leads to changing the legislative filibuster, which would be the end 
of the Senate, I don't know, but I don't think it helps. There will be 
a majority around here one day, a President of the same party, with 
control of the House, and they will get frustrated because the other 
side will not let them do everything they want to do, and they will be 
tempted to go down this road of doing away with the 60-vote requirement 
to pass a bill--not appoint a judge--and that will be the end of the 
Senate. We have made that more likely by doing this. It was more likely 
in 2013. I hope I am wrong, but I think we have set in motion the 
eventual demise of the Senate. The one thing I can say--I am 
optimistic, though--is that while I will vote to change the rules for 
this judicial nomination, I will not ever vote to change the rules for 
legislation.
  The reason I am voting to change the rules is that I do not know what 
I would go home and tell people as to how Sotomayor and Kagan got on 
the Court and Gorsuch could not, why President Obama was able to pick 
two people who were highly qualified and why Trump was not able to pick 
one person who was highly qualified. You just can't have it where one 
side gets the judges and the other side does not. To rectify that 
wrong, I guess we had to change the rules.

[[Page 5672]]

  It is not a good day. I was hoping it would never come, but it has. 
To the extent that I have been part of the problem, I apologize to the 
future. I think, at least in my own mind, I have tried to do the right 
thing as I saw it. I took a lot of heat for voting for their judges at 
a time when there was a lot of heat on our side. I am glad I did.
  It is not that I am not partisan--certainly, I can be. I just think 
history is going down a very dark path, and the Senate is going down a 
very dark path. There will never be another 98 votes for a Scalia or 
another 96 votes for a Ginsburg. That is a shame because even though 
they may be different, they have one thing in common: They are good 
people who are highly qualified to sit on the Court. I can understand 
why a liberal President would choose one and a conservative President 
would choose another. Yet what we are doing today is basically saying 
that in the Senate, we do not really care about election results 
anymore.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. KENNEDY. Mr. President, Senator Graham, my fellow Senators, our 
constituents in the Gallery, a lot of what has gone on today may seem 
very complicated. We have heard a lot of terms being thrown around: 
cloture, the nuclear option. Yet, really, the question that we were 
faced with today in the Senate was very simple, and it continues to be 
pretty simple and straightforward, in my judgment: Should we have an 
up-or-down vote on the nomination of Judge Neil Gorsuch to be an 
Associate Justice of the U.S. Supreme Court?
  Earlier today, the Senate voted to do that. I think it is very 
important for the American judicial system and for the American system 
of democracy that the U.S. Senate be allowed to vote on Judge Gorsuch's 
nomination to the U.S. Supreme Court. It was not enough to only vote on 
a motion to end debate; we also needed to be allowed to vote on the 
actual nomination with ``yes'' or ``no.''
  Unfortunately, our friends on the Democratic side of the aisle 
decided to filibuster in order to make it impossible for us to vote on 
this crucial nominee without modifying the rules of the U.S. Senate. 
That is what we did earlier today. I do not know that anybody did it 
happily, but certainly a majority of the Senate believed that the 
American people deserved an up-or-down vote, yea or nay. Stand up and 
be counted in front of God and country. Do you want Judge Neil Gorsuch 
to be on the Supreme Court, or do you not? That vote is going to take 
place tomorrow afternoon.
  The Constitution reads that the President of the United States of 
America ``shall nominate and by and with the advice and consent of the 
Senate shall appoint . . . judges of the Supreme Court.'' I do not need 
to tell you that this is an extremely important part of our separation 
of powers. It is vital to our protecting the integrity of the Supreme 
Court, the work that all of us do--not just members of the Judiciary 
Committee but every Member of the Senate--in vetting our nominees and 
making sure they are qualified and independent, as is Neil Gorsuch. He 
is enormously important for the protection of liberty itself.
  Let's not ever forget what we are protecting. We are protecting 
justice, and we are protecting liberty. We are not supposed to be 
protecting a certain point of view. We are not supposed to be 
protecting a certain policy preference. We are not supposed to be 
protecting a certain political party.
  I hope tomorrow, when we finally get the opportunity to vote up or 
down on Neil Gorsuch for his membership on the greatest tribunal in the 
history of civilization, in my judgment, the U.S. Supreme Court, that 
we will consider his nomination in light of how it will affect our 
country, not our party. When we look at his nomination from that 
perspective and leave the politics of the last few years in the 
rearview mirror, I think we can analyze his nomination with a lot more 
clarity.
  Alexander Hamilton, whom I think most Americans admire, said in 
Federalist No. 78 that the Court has ``neither force nor will but 
merely judgment.'' I think that is what we are all looking for--or 
should be--in a nominee to any court but especially to the U.S. Supreme 
Court. We are not looking for somebody with a certain policy 
preference. We are not looking for people with ideas of how the law can 
be improved because the role of a judge is not to make law, it is to 
interpret the law as made by the legislative body as best that judge 
can understand it. That is why we need someone like Neil Gorsuch, in my 
estimation, who has good judgment.
  I sit on the Judiciary Committee. I have spent 20 to 40 hours with 
Neil Gorsuch or with people who know him well, in hearing their 
testimony. I have read his opinions. As far as I am concerned, he is as 
good as it gets. I cannot imagine that President Trump could have 
picked better.
  He is a thoroughbred. He is a legal rock star. If you read his 
opinions, you will see that he is painstaking in his application of the 
law to the facts before him. He writes beautifully. His communication 
skills are absolutely amazing. His analysis and analytical rigor are 
clear and concise. His decisions are wise and disciplined, and he is 
faithful to the law. He is an intellectual, not an ideologue. He is a 
judge, not a politician. He is whip-smart, has clear writing, is a 
strict constitutionalist, likes snow skiing, fly fishing, and is a 
fourth-generation Coloradan. I think he will serve every person in our 
country well as a member of the Supreme Court. That is why I am 
supporting him.
  Let me say one final thing. I do not think there is any vote that 
will be more important than the vote we will take tomorrow on a 
President's nomination to the U.S. Supreme Court, so I want to choose 
my words carefully. Not a single, solitary vote is more important than 
that vote we will take tomorrow. That is not to say that there are not 
other important issues before this body. That is why I think it was so 
important today that we decided to vote up or down on Judge Gorsuch so 
that we can move on to those other important issues--jobs, jobs, jobs; 
designing a healthcare delivery system that looks like somebody 
designed it on purpose, which our Acting President has worked so hard 
on; infrastructure; elementary and secondary education; a skilled 
workforce. I could go on.
  There is an enormous amount of pain in America today. There are too 
many Americans who are not participating in the great wealth of 
America--not economically, not socially, not culturally, and not 
spiritually. We have been elected in the Congress to do something about 
that.
  I talk to people in my State every day, and I know the Presiding 
Officer does too. The people of Louisiana are fun-loving, God-fearing, 
and plain-talking, and this is what they tell me: Kennedy, this country 
was founded by geniuses, but sometimes I think it is being run by 
idiots.
  They say: Kennedy, we look around our country today, and here is what 
we see. We see too many undeserving people at the top--I want to 
emphasize ``undeserving'' because I don't want to paint with too broad 
a brush--who are getting bailouts, and we see too many undeserving 
people at the bottom who are getting handouts. We are in the middle, 
and we get stuck with the bill. We cannot pay it anymore, Kennedy, 
because our health insurance has gone up, our kids' tuitions have gone 
up, and our taxes have gone up. I will tell you what has not gone up--
our income.
  These are real people with real problems, and they sent all of us 
here because they are real mad and they expect us to do something about 
it.
  The sad truth is that our children's generation is at risk of 
becoming the first in America, unless this body does something, to be 
worse off than their parents' generation because in our country today, 
for too many Americans, it is harder than ever to get ahead. That is 
why so many Americans feel stuck. They feel like the hope and change 
they were promised has become decline and uncertainty, and they are 
looking to us to do something about it.
  So let's vote. Let's vote tomorrow. I understand reasonable people 
disagree. I understand unreasonable people can

[[Page 5673]]

disagree too. But I am going to vote for Neil Gorsuch to be an 
Associate Justice of the U.S. Supreme Court. Then I am going to ask 
this body to move on to other important issues that are keeping moms 
and dads awake at night when they lie down and try to go to sleep.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, when we lost the Honorable Justice Antonin 
Scalia, we were all saddened, as he was such a legend on the Court, and 
I am very proud that President Trump nominated a successor who is 
worthy of fulfilling his shoes.
  Judge Gorsuch has garnered respect and approval from people across 
the legal community, and he has unrivaled bipartisan support. It is 
unfortunate that the Democrats have tried to block his nomination. It 
is not going to work, but they have tried.
  Recently, I had the honor of meeting Judge Gorsuch. It is kind of 
interesting because I was not on his list to visit. In fact, I had even 
said: Don't waste your time on me, as I know your credentials and I am 
going to support you anyway, and I am not on the appropriate committees 
that would pass judgment. Yet he did call, and we met. I will tell you 
that you have to meet and talk to the guy in person to know what kind 
of an individual he really is.
  Of course, being from Oklahoma, I am sensitive to the fact that he is 
the son of the West. In fact, none of our Justices up there, with the 
exception of California, are from what we would call the Western United 
States--the area where people need to be properly represented.
  As a judge on the Tenth Circuit Court of Appeals, he has heard from 
Utah, Wyoming, Colorado, Kansas, New Mexico, and my State of Oklahoma. 
He knows the issues of the Western States and what we are facing, and 
he has expertise to deal with them. He has handled with a lot of care 
and fairness the issues that have come before him. Of course, we know 
this because Oklahoma is in the Tenth Circuit.
  His reputation is such that, regardless of party affiliation, 
countless groups, organizations, and individuals have come out in 
support of Judge Gorsuch, including Neal Katyal. Neal Katyal was the 
Acting Solicitor General in President Obama's Cabinet, so he was a 
Cabinet member of President Obama's. He testified before the Senate 
Judiciary Committee and wrote an op-ed piece in the New York Times. 
Keep in mind, when you listen to this--this is a quote from an op-ed 
piece in the New York Times, and one of the individuals from the 
administration of President Obama said this: ``His years on the bench 
reveal a commitment to judicial independence--a record that should give 
the American people confidence that he will not compromise principle to 
favor the President who appointed him.''
  That comes from an Obama appointee.
  Not only is he well liked, but he also has an impressive resume, 
serving as law clerk to two different Supreme Court Justices. He 
attended Columbia, Harvard, Oxford, and it doesn't get any better than 
that. It is clear he has the qualifications, and as recently as the 
last administration, that was really all you needed to be confirmed to 
be on the U.S. Supreme Court.
  What the Democrats have done to block his nomination has never been 
done before. This is significant. People don't realize--people who are 
maybe critical of some of the procedures that were taking place, they 
forget the fact that there has never been, in the history of America, a 
successful partisan filibuster of a Supreme Court nomination--there has 
never been. This will be the first time this happened.
  I support the majority leader in changing the rules in the face of 
this unprecedented action by a minority party. There is really no 
reason for their filibuster of this highly qualified individual, other 
than partisanship and catering to their liberal base. Changing the 
rules for Supreme Court nominations had to be done, and if the 
situation were reversed, the Democrats would have done the same thing 
in a heartbeat, as we saw in 2013 when they did the same thing.
  Judge Gorsuch deserves to be on the Supreme Court. He does not 
deserve to be blocked because people are upset that we observed the 
Biden rule; that is, not providing for any action on a nominee for a 
Supreme Court vacancy once the election season is underway--and they 
lost the election.
  Now, that is Joe Biden, not Jim Inhofe.
  In addition to his impeccable job and experience and educational 
background, he is perhaps best known for his defense of religious 
liberty, including a role in the dispute during the Obama 
administration that required employers to provide abortion-inducing 
drugs to their employees as part of their health insurance. One of 
these employers was Hobby Lobby.
  Everyone knows who Hobby Lobby is, but not everyone knew them back 
when I knew them. I knew them back in the 1970s, when the Green family, 
who started Hobby Lobby, were actually operating out of their garage, 
making picture frames, and look at them today. I have known them for a 
long time. They started out their whole business with a $600 loan. Now 
they have over 700 stores across the United States and are the largest 
privately owned arts and crafts store in the world.
  Judge Gorsuch and the Supreme Court agreed with Hobby Lobby and 
upheld their religious liberty rights. I am going to read to my 
colleagues his concurring opinion. It is very profound. Judge Gorsuch 
wrote, after they made the determination that Hobby Lobby did not have 
to give these drugs to their employees:

       It is not for secular courts to rewrite the religious 
     complaint of a faithful adherent, or to decide whether a 
     religious teaching about complicity imposes ``too much'' 
     moral disapproval on those only ``indirectly'' assisting 
     wrongful conduct. Whether an act of complicity is or isn't 
     ``too attenuated'' from the underlying wrong is sometimes 
     itself a matter of faith we must respect the faith.

  Now, that is what he wrote in Hobby Lobby.
  In a very similar situation around the same timeframe, there was a 
case that is known now to be the Little Sisters of the Poor. He joined 
in an opinion defending the rights of nuns not to be forced to pay for 
abortion-inducing drugs in their healthcare plans. This is another 
profound statement he made. He said: ``When a law demands that a person 
do something the person considers sinful, and the penalty for refusal 
is a large financial penalty, then the law imposes a substantial burden 
on that person's free exercise of religion.''
  It is not just petitioners of the Christian faith whom Judge Gorsuch 
has sided with. He upheld the religious beliefs of a Native American 
prisoner and of a Muslim prisoner who found their ability to practice 
their faith restricted in one manner or another.
  He comes to his decision not because he is seeking some predetermined 
outcome; he comes to his decisions because that is where the facts of 
the law and the Constitution lead him.
  For example, in the Lynch case--another Oklahoma case--Gorsuch 
referred to Chevron deference as ``a judge-made doctrine for the 
abdication of the judicial duty.''
  Chevron deference is the judicial rule that requires judges to defer 
to an agency's interpretation--we are talking about a bureaucracy--an 
agency's interpretation of the law if the law is considered ambiguous 
or unclear and if the agency's interpretation is reasonable. This 
defense to the agency gives them a lot of authority, a lot of power. 
Moreover, it can provide a lot of uncertainty to the regulated 
community.
  As Judge Gorsuch wrote, Chevron deference allows agencies to 
``reverse its current view 180 degrees any time based merely on the 
shift of political winds and still prevail [in court].''
  I know a little bit about this. I spent a lot of years being the 
chairman of a committee called the Environment and Public Works 
Committee. During the Obama years, we had a bureaucracy that was trying 
to change the law instead of following the law. It was exactly what 
Judge Gorsuch was talking about in this case when he talked about the 
Chevron deference, giving

[[Page 5674]]

deference to a bureaucracy. You can imagine being in business, 
especially a heavily regulated one, that has to worry that every 4 to 8 
years the rules might change then and how do you plan to make your 
plans.
  I think Gorsuch's opinion on Chevron deference is an important debate 
to have. Do we, as a coequal branch of government, continue to give up 
our powers to the administrative state or do we take our power back and 
write laws as they should be implemented? Furthermore, does the 
judicial branch, as a coequal branch of government, continue to give up 
their power of interpretation to the administrative state?
  These are important, fundamental questions that should be addressed, 
and I am glad the Gorsuch nomination has brought these cases to light.
  Although Judge Gorsuch was nominated by a Republican President, this 
doesn't mean my colleagues on the other side of the aisle should have 
any concern about Judge Gorsuch's decisionmaking ability. This is 
important to point out because being a judge is not about making 
decisions that are in the best interests of any political party but 
really about making decisions based on facts and the law and the 
Constitution without bias.
  During his confirmation, Judge Gorsuch stated his judicial 
philosophy, saying:

       I decide cases . . . I listen to the arguments made. I read 
     the briefs that are put to me. I listen to my colleagues 
     carefully and I listen to the lawyers in the well . . . 
     keeping an open mind through the entire process as best I 
     humanly can and I leave all the other stuff at home. And I 
     make a decision based on the facts and the law.

  Who can argue with that? He has proven over a period of time that he 
will do that.
  Through the whole debate, it has become evident that the Democrats 
were asking him to rule in favor of causes and not to follow the law, 
which is what a judge does and should do.
  Regarding the roles and balance of our government, Gorsuch is what a 
judge should be. He believes Congress should write the laws, the 
executive branch is to carry them out, and the judicial branch is to 
interpret the laws. The confirmation of Judge Gorsuch will shape our 
Nation for generations to come, and all of us will be able to benefit 
from his wise decisions.
  I am looking forward to confirming Judge Neil Gorsuch. It is going to 
happen tomorrow, and then all of this will be over. I am proud to give 
him my vote. Justice will be well served as such.
  With that, Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               Venezuela

  Mr. NELSON. Mr. President, I have already cast my ``no'' vote with 
regard to the judge and will so again whenever we get to final passage, 
but I want to take this opportunity to talk about the chaos that is 
going on in Venezuela.
  As if there weren't already enough chaos, last week Venezuela's 
supreme court stripped its legislative branch of its powers--just 
stripped them of powers. Only because the court had gotten such 
significant criticism did it reverse its decision. Apparently even the 
very shaky President of Venezuela, Maduro, weighed in to get them to 
reverse their decision. Now, isn't that something? This is supposed to 
be a democracy. Yet it is being run as a dictatorship, where even the 
judicial branch goes and does something crazy and the President of the 
country gets up and tells them: You had better reverse yourself; there 
is too much criticism.
  This is the nonsense that is going on in Venezuela. Of course, what 
went on last week further undermines Venezuela's so-called democracy, 
and it is only the latest in President Maduro's creeping dictatorship. 
That is what it is.
  He has repeatedly and violently suppressed protesters and jailed his 
political opponents in violation of any understanding of human rights. 
He has used that same Supreme Court to block members of the National 
Assembly from taking office, and he has used that Supreme Court as a 
rubberstamp to overturn the laws that the National Assembly does that 
he doesn't like. Isn't it a sad state that Venezuela has reached?
  The President has also thwarted opposition efforts to recall him, 
President Maduro, in a national referendum. In so doing, he was able to 
appoint a Vice President with ties to Hezbollah, and now a Vice 
President it appears that he has sanctioned for drug trafficking.
  Meanwhile, the poor Venezuelan people suffer the consequences of the 
political, humanitarian, and economic crisis. Venezuelans are dying 
because of severe shortages of food and medicine and other products. 
The economy is in freefall, and crime and corruption are rampant.
  Last year, 18,000 Venezuelans sought asylum in the United States--
more than any other nationality. The United States stands clearly on 
the side of the Venezuelan people in calling on President Maduro to 
cease undermining democracy, release all political prisoners, respect 
the rule of law, and respect human rights.
  There obviously is no sign that he is going to be doing this. What 
should we do? First of all, we ought to get our Secretary of State to 
work with the international community, including the Organization of 
American States, to help resolve this crisis and alleviate the 
suffering of the Venezuelan people.
  That is the first order of business, to try to eliminate the 
suffering of people. It is all so true; whenever a dictator takes 
control, as has happened in Venezuela, it is the people who suffer 
first.
  Additionally, I am suggesting and I am calling on the administration 
to fully enforce and, where appropriate, expand the sanctions on those 
responsible for continued violence and human rights violations that are 
perpetrated against the people.
  It is very interesting. A lot of these so-called big guys in 
Venezuela love to travel. They love to have bank accounts. They love to 
come to Miami. They love to have U.S. bank accounts. Let's slap some 
severe economic sanctions on these guys. The situation is increasingly 
dire, and we must stand with the Venezuelan people in their struggle 
for democracy and human rights.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Affordable Care Act

  Mr. NELSON. Mr. President, while we have a lull in the debate, I want 
to take an opportunity to talk about healthcare. Since we had an utter 
inability of the House of Representatives to come together on any kind 
of healthcare bill, this Senator would suggest that instead of the 
mantra ``repeal and replace,'' since now that seems to be dead, why 
don't we take the existing law that has provided a lot of things for 
the average citizen? For the average person in my State of Florida, it 
means a great deal to have the availability of health insurance, which 
they never had and can now afford.
  There need to be fixes to the law known as the Affordable Care Act 
that was passed several years ago. Indeed, one of those fixes could be 
a kind of ``smoothing fund,'' that as the insurance companies vie for 
this business on the State exchanges, they would be able to have this 
fund as a resource for them to get over some of the humps--also, 
certainly for some of the insureds.
  Just because you are at 400 percent of poverty and therefore no 
longer eligible for some of the subsidies to enable you to buy health 
insurance--and, by the way, for a single individual, that is only about 
$47,000 a year of income--the person who makes $47,000, $50,000 a

[[Page 5675]]

year can't afford to go out and spend $8,000, $10,000, $11,000 on a 
health insurance policy.
  We need to adjust that--in other words, fix that as well. There needs 
to be an additional fix of a subsidy for the people who are just over 
400 percent of poverty. To translate that another way, for a family of 
four, that is only about $95,000 a year. On a tight budget like that, 
they simply can't afford health insurance. They need some help.
  With a few little fixes like that to the existing law--the Affordable 
Care Act--we could get this thing tuned up and, indeed, continue to 
provide what we need in order for people to have healthcare.
  One other fix: There are about 4 million people in the country who, 
if their State legislatures and their Governor would expand Medicaid--
and some of those Governors are now expressing interest in doing this--
under the Federal law up to 138 percent of poverty, 4 million more 
people would be covered with healthcare. In my State of Florida alone, 
there are 900,000 people who otherwise would be getting healthcare who 
do not because the government in the State of Florida has refused to 
expand Medicaid coverage up to 138 percent of poverty.
  How much is that? For a single individual, that is someone making 
about $16,000 a year. A person like that can't afford health insurance. 
A person like that can't afford any kind of paying for any healthcare.
  What happens to them? When they get sick, they wait and wait to try 
to cure themselves because they can't pay a doctor. When the sickness 
turns into an emergency, they end up in the emergency room and then, of 
course, it is uncompensated care and the hospital eats it. The 
hospital, of course, passes that uncompensated care on to all the rest 
of us who are paying our premiums on health insurance.
  It makes sense to do this. With a few fixes, we would be able to tune 
up the existing law to provide the healthcare that most of us want to 
provide. It seems to me that it is common sense, and it is common sense 
that can be done in a bipartisan way. It is my hope and my prayer that 
the Senate and the House will come together and ultimately do this.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, the Senate has decided on a purely partisan 
basis to resolve the impasse of Judge Gorsuch's nomination by invoking 
the so-called ``nuclear option.'' For the first time in our history, 
nominees to the Supreme Court of the United States may advance from 
nomination to confirmation with a simple majority vote in this body.
  I have heard many of my colleagues ascribe blame equally to both 
sides, and I have heard analysts and experts say the same. One can 
question that diagnosis, as some very respected scholars like Norm 
Ornstein of the American Enterprise Institute and Thomas Mann of the 
Brookings Institute have demonstrated that our political polarization 
over the last several years, and hence our current impasse, has been 
driven predominantly by the ever more conservative ideology of the 
Republican Party. Regardless, here we are.
  The Gorsuch nomination lacks the traditional level of support 
required for a Supreme Court seat, and the majority leader has chosen a 
step that Democrats clearly and emphatically rejected when we needed to 
confirm nominees with broad support but were blocked because they were 
submitted by President Obama.
  I had hoped it was not too late for cooler heads to prevail. 
Unfortunately, adherence to the principle of 60 votes for consideration 
of a Justice of the Supreme Court and indeed the existing rule in the 
Senate was ignored, and we are at this impasse.
  Since many have drawn a false equivalence between the last so-called 
``nuclear option'' vote of several years ago and what occurred today, 
let me take a moment to explain, for my part, why I very reluctantly 
supported a change to the Senate precedent for nominees other than the 
Supreme Court in 2013.
  During President Obama's tenure, Republicans necessitated more 
cloture votes than were taken under every previous President combined. 
Let me repeat that. During President Obama's tenure, Republicans 
necessitated more cloture votes than were taken under every previous 
President combined, from George Washington to George W. Bush. In 
numerical terms, Republicans demanded a cloture vote 79 times over just 
5 years. In contrast--from the Founding Fathers all the way through 
George W. Bush--the Senate only faced that situation 68 times. 
Republicans obstructed Obama nominees more in 5 years than the United 
States Senate obstructed all nominees combined over the course of more 
than two centuries.
  The bitter irony, of course, was that after a nominee would break 
through, Republicans often would vote overwhelmingly to confirm the 
very nominee they so adamantly delayed. It was clear their sole guiding 
principle was obstruction and delay.
  Judges nominated by President Obama faced some of the longest median 
and average wait times under the five most recent Presidents, and 
President Obama tied with President Clinton for the fewest number of 
circuit court nominees confirmed during that same period. All that 
time, judicial vacancies stacked up. Justice was delayed and denied. 
Critical public service roles went unfilled, and the American public 
came to regard Congress as a place where nothing of substance can 
occur.
  It was under those dire and unprecedented circumstances that I 
reluctantly joined my colleagues to change the filibuster rules for 
executive nominations and judicial nominations, other than the Supreme 
Court--very consciously excluding the Supreme Court, which at that time 
was recognized as appropriate by all my Republican colleagues. But 
there really is no equivalence between that decision and what the 
majority did today.
  Even in 2013, at the height of Republicans' partisan attacks on 
President Obama, Senate Democrats believed the Supreme Court was too 
important to subject to a simple majority vote. The Supreme Court is a 
coordinate branch of our government, and its lifetime appointees have 
final authority to interpret the Constitution. We understood then--as 
we do now--that the traditional 60-vote threshold to conclude debate on 
the highest Court in our nation was too important to the consensus-
driven character of this body to sacrifice.
  I think we also have to acknowledge that a President already has 
nominated a consensus choice capable of earning 60 votes to a seat on 
the Court, and that nominee was Chief Judge Merrick Garland. The 
unprecedented treatment he received by the majority has already made 
this one of the most infamous and politicalized Supreme Court 
nominations in American history. It is all the more disconcerting that 
Judge Gorsuch witnessed Judge Garland be treated so poorly but now 
seems to feel entitled to his seat on the Court, even if the Senate 
must change its precedence to give it to him.
  I already addressed this body about my deep concerns regarding Judge 
Gorsuch's judicial record of ideological activism and championing the 
powerful over the powerless, but it is worth going into greater detail 
on one of his opinions that is emblematic of this, and that has 
recently come to the fore.
  In 2008, Judge Gorsuch heard what is referred to as the Luke P. Case. 
In that case, the parents of an autistic child sought reimbursement 
from a school district for the cost of specialized education because 
the school had not provided adequate accommodations for the child under 
the Individuals with Disabilities Education Act or IDEA. The case 
presented heart-wrenching facts that are too familiar for families 
affected by disabilities such as autism. The child, Luke, experienced 
severe behavioral issues in public and at home. His parents sought 
advice from the best sources available to create the most effective 
atmosphere for him to make progress in school. Ultimately, they 
recognized the public school Luke had attended could not provide the 
learning atmosphere required by the law for Luke. So they placed him in 
a different school setting.

[[Page 5676]]

  Luke's parents exercised their rights under IDEA. The Colorado 
Department of Education, the Colorado Office of Administrative Courts, 
and a Federal district court all agreed that the law entitled them to 
reimbursement from the school district that was not able to provide an 
adequate learning environment for Luke. This should have been the end 
of the matter, but when the school district appealed the case to the 
Tenth Circuit, Judge Gorsuch's decision reversed all these factfinders 
to hold in favor of the school district.
  In order to reach his conclusion, Judge Gorsuch went to great 
lengths--picking and choosing passages from previous decisions--to 
weave a new standard that essentially eviscerated the protections under 
IDEA. His strict interpretation of this landmark law utterly ignored 
congressional intent and created a new precedent that schools need only 
provide ``merely more than de minimis'' or, in plainer terms, just a 
little bit more than zero educational opportunity for children with 
disabilities. The immediate result of this decision was to force Luke 
back into an inadequate learning environment and leave his parents with 
yet another unexpected financial hardship. At the same time, Judge 
Gorsuch's new legal standard threatened to degrade the quality of 
education for children with disabilities all across the country.
  The good news for Luke's family--and for so many others--is that the 
Supreme Court of the United States intervened in a rare unanimous 
opinion, reversing Judge Gorsuch's position--ironically during his 
confirmation hearings. The Nation has been spared the potential harm 
that could have resulted from lowering expectations for schools 
nationwide and leaving families like Luke's without sufficient 
recourse.
  Yet as my colleagues and I have pointed out at every turn of this 
confirmation process, this is far from the only decision by Judge 
Gorsuch that is widely outside the mainstream of modern jurisprudence. 
He is not--and was never intended to be--a consensus nominee to fill 
the vacancy on the Supreme Court. It should not come as a surprise, 
therefore, that this body is divided over his nomination to the highest 
Court in the land, and Judge Gorsuch could not earn enough support 
under the 60-vote threshold.
  The filibuster was intended to be an institutional safeguard that 
protects the minority by requiring broad consensus for major decisions 
by this body. It should be equally apparent in this circumstance that 
the filibuster did its job. A large minority of this body viewed Judge 
Gorsuch as too extreme for the Supreme Court, and that minority blocked 
cloture on his nomination. There was no national emergency, no danger, 
no serious consequence whatsoever that prevented the majority from 
reversing course and working with Democrats and the President to find a 
consensus nominee. In one day, the majority has lessened the 
distinction between our Chamber and our colleagues across the Capitol, 
all the while lowering ourselves further in the eyes of the Nation and 
opening the door to an even more polarized judiciary.
  I regret that this is the case, and I hope this body can turn back 
from the course we find ourselves on today.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Mr. President, we are now well on our way to confirming 
Judge Gorsuch as the next Justice of the Supreme Court. I have a few 
things to say about the way we have gotten here.
  Earlier today, the other side--meaning the Democrats--made a very 
unprecedented break with Senate history and with Senate tradition. They 
launched the first partisan filibuster of a Supreme Court nominee in 
our Nation's history. For our part, we Republicans insisted that we 
follow the practice of the Senate. We don't engage in partisan 
filibusters of Supreme Court nominees.
  Yesterday, I came to the floor to speak about the path that brought 
us to this point. As I discussed, way back in 2001, the current 
minority leader and some of his allies on the far left hatched a plan 
to, in their words, ``change the ground rules'' with regard to lower 
court nominees. I noted a New York Times article describing the 
Democratic senatorial caucus retreat, where the new approach to 
nominees was discussed; in other words, where they discussed the 
strategy for changing the ground rules of how judges are considered by 
the United States Senate.
  Mr. President, I ask unanimous consent to have printed in the Record 
the May 1, 2001, New York Times article entitled ``Washington talk; 
Democrats Readying for Judicial Fight,'' and the April 5, 2017, story 
from the Washington Examiner entitled ``The Gorsuch Plagiarism Story is 
Bogus.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the New York Times, May 1, 2001]

         Washington Talk; Democrats Readying for Judicial Fight

                           (By Neil A. Lewis)

       President Bush has yet to make his first nominee to a 
     federal court and no one knows whether anyone will retire 
     from the Supreme Court this summer, an event that would lead 
     to a high-stakes confirmation battle.
       Nonetheless, the Senate's Democrats and Republicans are 
     already engaged in close-quarters combat over how to deal 
     with the eventual nominees from the Bush White House. 
     Democrats in particular are trying to show some muscle as 
     they insist that they will not simply stand aside and confirm 
     any nominees they deem right-wing ideologues.
       ``What we're trying to do is set the stage and make sure 
     that both the White House and the Senate Republicans know 
     that we expect to have significant input in the process,'' 
     Senator Charles E. Schumer, New York's senior Democrat, said 
     in an interview. ``We're simply not going to roll over.''
       Forty-two of the Senate's 50 Democrats attended a private 
     retreat this weekend in Farmington, Pa., where a principal 
     topic was forging a unified party strategy to combat the 
     White House on judicial nominees.
       The senators listened to a panel composed of Prof. Laurence 
     H. Tribe of Harvard Law School, Prof. Cass M. Sunstein of the 
     University of Chicago Law School and Marcia R. Greenberger, 
     the co-director of the National Women's Law Center, on the 
     need to scrutinize judicial nominees more closely than ever. 
     The panelists argued, said some people who were present, that 
     the nation's courts were at a historic juncture because, they 
     said, a band of conservative lawyers around Mr. Bush was 
     planning to pack the courts with staunch conservatives.
       ``They said it was important for the Senate to change the 
     ground rules and there was no obligation to confirm someone 
     just because they are scholarly or erudite,'' a person who 
     attended said.
       Senator Tom Daschle of South Dakota, the Democratic leader, 
     then exhorted his colleagues behind closed doors on Saturday 
     morning to refrain from providing snap endorsements of any 
     Bush nominee. One senior Democratic Senate staff aide who 
     spoke on the condition of anonymity said that was because 
     some people still remembered with annoyance the fact that two 
     Democratic senators offered early words of praise for the 
     nomination of Senator John Ashcroft to be attorney general.
       Senators Robert G. Torricelli of New Jersey and Joseph R. 
     Biden Jr. of Delaware initially praised the Ashcroft 
     selection, impeding the early campaign against the 
     nomination. Both eventually acceded to pressure and voted 
     against the nomination.
       The current partisan battle is over a parliamentary custom 
     that Republicans are considering changing, which governs 
     whether a senator may block or delay a nominee from his home 
     state. Democrats and Republicans on the Judiciary Committee 
     have not resolved their dispute over the ``blue-slip policy'' 
     that allows senators to block a nominee by filing a blue slip 
     with the committee.
       On Friday, Senator Patrick J. Leahy of Vermont, the ranking 
     Democrat on the Judiciary Committee, and Mr. Schumer sent a 
     letter to the White House signed by all committee Democrats 
     insisting on a greater role in selecting judges, especially 
     given that the Senate is divided 50-50 and that the 
     Republicans are the majority only because Vice President Dick 
     Cheney is able to break any tie.
       Senator Trent Lott of Mississippi, the Republican leader, 
     told reporters today that he believed ``some consideration 
     will be given to Democratic input, but I don't think they 
     should expect to name judges from their state.''

[[Page 5677]]

       Mr. Lott said he expected that Democrats might slow the 
     process but, in the end, would not block any significant 
     number of nominees.
       Behind all the small-bore politics is the sweeping issue of 
     the direction of the federal courts, especially the 13 
     circuit courts that increasingly have the final word on some 
     of the most contentious social issues. How the federal bench 
     is shaped in the next four or eight years, scholars say, 
     could have a profound effect on issues like affirmative 
     action, abortion rights and the lengths to which the 
     government may go in aiding parochial schools.
       Mr. Bush is expected to announce his first batch of 
     judicial nominees in the next several days, and it is likely 
     to include several staunch conservatives as well as some 
     women and members of minorities, administration officials 
     have said. Among those Mr. Bush may put forward to important 
     federal appeals court positions are such conservatives as 
     Jeffrey S. Sutton, Peter D. Keisler, Representative 
     Christopher Cox of California and Miguel Estrada.
       The first group of nominees, which may number more than two 
     dozen, is part of an effort to fill the 94 vacancies on the 
     federal bench while the Republicans still control the Senate.
       But it remains unclear if there will be a Supreme Court 
     vacancy at the end of the court's term in July. Speculation 
     on possible retirements has focused on Chief Justice William 
     H. Rehnquist and Justices Sandra Day O'Connor and John Paul 
     Stevens. But in recent days, associates of Justice O'Connor 
     have signaled that she wants it known that she will not 
     retire after this term.
                                  ____


              [From the Washington Examiner, Apr. 5, 2017]

                 That Gorsuch Plagiarism Story Is Bogus

                          (By T. Becket Adams)

       Supreme Court nominee Neil Gorsuch is not a plagiarist, 
     according to the woman from whom he has been accused of 
     lifting materials.
       ``I have reviewed both passages and do not see an issue 
     here; even though the language is similar. These passages are 
     factual, not analytical in nature, ``Abigail Lawlis Kuzma, 
     who serves as chief counsel to the Consumer Protection 
     Division of the Indiana Attorney General's office, said in a 
     statement made available to the Washington Examiner.
       Her remarks came soon after two reports alleged Tuesday 
     evening that President Trump's Supreme Court nominee had 
     ``copied' passages in his 2006 book, ``The Future of Assisted 
     Suicide and Euthanasia.'' The reports alleged he also lifted 
     material for an academic article published in 2000.
       The charge, which involves Gorsuch repeating medical terms 
     and not original concepts or ideas, is weak, at best.
       ``[The similar] passage are factual, not analytical in 
     nature, framing both the technical legal and medical 
     circumstances of the `Baby/Infant Doe' case that occurred in 
     1982,'' Kuzma explained. ``Given that these passages both 
     describe the basic facts of the case, it would have been 
     awkward and difficult for Judge Gorsuch to have used 
     different language.''
       BuzzFeed was first to report on the similarities between 
     Gorsuch and Kuzma. It published a story Tuesday headlined, 
     ``A Short Section in Neil Gorsuch's 2006 Book Appears To Be 
     Copied From A Law Review Article.
       Politico followed suit publishing a story titled, 
     ``Gorsuch's writings borrow from other authors.''
       Other newsrooms, including the Huffington Post, Business 
     Insider and New York magazine, moved quickly to repeat the 
     charges against Gorsuch.
       Politico bolstered its charge with quotes from multiple 
     academic experts, including Syracuse University's Rebecca 
     Moore Howard, who, interestingly enough, is quite open about 
     supporting former President Barack Obama.
       However, several professors who worked closely with Gorsuch 
     during the period in which he produced much of the work in 
     question said the hints and allegations against the judge are 
     nonsense.
       ``[I]n my opinion, none of the allegations has any 
     substance or justification,'' Oxford University's John Finnis 
     said in a statement made available to the Examiner. ``In all 
     four cases, Neil Gorsuch's writing and citing was easily and 
     well within the proper and accepted standards of scholarly 
     research and writing in the field of study in which he was 
     working.''
       Georgetown University's John Keown, who reviewed Gorsuch's 
     dissertation, said elsewhere in a statement: ``The allegation 
     is entirely without foundation. The book is meticulous in its 
     citation of primary sources. The allegation that the book is 
     guilty of plagiarism because it does not cite secondary 
     sources which draw on those same primary sources is, frankly, 
     absurd.
       Indeed, the book's reliance on primary rather than 
     secondary sources is one of its many strengths.''
       Further, actual attorneys disagree that Gorsuch plagiarized 
     anything.
       ``People unfamiliar with legal writing, or even writing, 
     may be unfamiliar with how citations work,'' Attorney Thomas 
     Crown explained Wednesday.'' When I cite to a case or 
     statute, if I am quoting verbatim, I give a direct quotation, 
     with apostrophes and everything, and then the source. If I am 
     summarizing, sometimes even using the same words, I follow 
     with the direct citation. The Bluebook, which is the legal 
     style Bible, is for law reviews and some appellate and trial 
     courts, and has more specific rules.
       ``I mention this because this is standard across numerous 
     fields, not just law, and only illiterates . . . are 
     shocked,'' he added. ``Different field with different 
     standards and forms; but even most academics believe that a 
     good synopsis with citation isn't plagiarism.''
       In conclusion, he wrote, ``I don't want to ruin a perfectly 
     good five-minute hate, but this isn't even close to 
     plagiarism.''

  Mr. GRASSLEY. After a brief time in the majority, Senate Democrats 
were back in the minority in 2003--so approximately 2 years after they 
had this strategy. It was at that time the Senate Democrats began an 
unprecedented and systemic filibuster of President George W. Bush's 
circuit court nominees.
  Then the tables turned. President Obama was elected, and Republicans 
held the Senate minority. At that time, even though many of us did not 
like the idea of using the filibuster on judicial nominees, we also 
recognized that we could not have two sets of rules--one for Republican 
Presidents and one for Democratic Presidents.
  Our party defeated two nominees for the lower courts by filibuster 
and denied cloture to three of President Obama's nominees to the D.C. 
Circuit Court of Appeals. But the other side did not appreciate being 
subject to the rules that they first established and started using in 
2003 to filibuster judges. So at that point, in 2013, they decided to 
change the rules of the Senate.
  By the way, they changed the rules by breaking the rules. I say that 
because the rules of the Senate say it takes a two-thirds vote to 
change the rules of the Senate, but they changed it by a majority vote. 
Now at that time, as we all know, Majority Leader Reid changed the 
rules for all Cabinet nominations and lower court nominees. To say that 
my colleagues and I were disappointed is a gross understatement.
  The majority claimed that they left intact the filibuster for Supreme 
Court nominees. But my view back in 2013, when they did that, was that 
the distinction Majority Leader Reid drew between lower court nominees 
and Supreme Court nominees was not a meaningful one. My view, in 2013, 
was that Majority Leader Reid had effectively eliminated the filibuster 
for both lower court nominees and the Supreme Court.
  Here is the reason. There are two circumstances where this issue 
might conceivably arise: either you have a Democrat in the White House 
and a Democrat-controlled Senate or you have a Republican in the White 
House and a Republican-led Senate.
  In the first, there was a Democrat in the White House and the party 
led by Leader Reid and Leader-in-Waiting Schumer was in the majority. 
If for some extraordinary reason Senate Republicans chose to filibuster 
the nominee, there is no question that a Majority Leader Reid or a 
Majority Leader Schumer would change the rules.
  Now, I do not believe that this particular circumstance would ever 
arise, because our side does not believe in filibustering Supreme Court 
nominees. I have never voted to filibuster a Supreme Court nominee, not 
once. I think I have a pretty good sense of the rest of our caucus. Our 
side just does not believe in it. It is not much more complicated than 
that simple commonsense statement I just made.
  Of course, even if for some extraordinary reason our side did choose 
to filibuster a Supreme Court nominee, we do not have to speculate as 
to whether the other side would have changed the precedent with respect 
to the Supreme Court. Last year, when everyone thought that Secretary 
Clinton was going to win the election, their own Vice-Presidential 
candidate said that they would change the rules if they needed to if we 
had a Republican filibuster.
  Then, of course, the other circumstance where this issue would arise 
is what we have seen this very day--a Republican in the White House and 
a

[[Page 5678]]

Republican-controlled Senate. We saw this very day that the minority 
was willing to take that last step and engage in the first partisan 
filibuster in U.S. history.
  As I have repeatedly discussed, because they were willing to do it 
with a nominee as well-qualified as Judge Gorsuch, it proved, without a 
shadow of a doubt, that they would filibuster any one submitted by this 
Republican President. That is why, on the day that Majority Leader Reid 
took that unprecedented action in 2013 to break the Senate rules to 
change the Senate rules, I spoke on the floor.
  I concluded my remarks this way. So I want to quote myself:

       So the majority has chosen to take us down this path. The 
     silver lining is that there will come a day when the rolls 
     are reversed. When that happens, our side will likely 
     nominate and confirm lower court and Supreme Court nominees 
     with 51 votes, regardless of whether the Democrats actually 
     buy into this fanciful notion that they can demolish the 
     filibuster on the lower court nominees and still preserve it 
     for the Supreme Court nominees.

  That is what I said when Reid took that extraordinary step. So though 
I am extremely pleased that we will confirm such an exceptional nominee 
to the Supreme Court in the next day or so, I am, of course, 
disappointed with what we were forced to do to get it done. Sadly, I 
cannot say I am surprised. I think my surprise, or the fact that I 
can't be surprised--you can tell it from what I said back there, what I 
just quoted from the 2013 speech that I gave.
  I knew when Majority Leader Reid did it in 2013 that this is where we 
were headed. That is where we ended earlier this afternoon. But the 
bottom line is that you cannot have two sets of rules. You cannot 
clothe yourself in the tradition of a filibuster while simultaneously 
conducting the very first partisan filibuster of a Supreme Court 
nominee in history. You cannot demand a rules change only when it suits 
the Democratic Members of this body.
  You just can't have it both ways. You can't use the Senate rules as 
both a shield and a sword. But I must say, the one thing that does not 
disappoint me is this: The nominee to take Justice Scalia's seat is 
eminently qualified. He will apply the law faithfully without respect 
to persons. He is a judge's judge. Come some time tomorrow, we will all 
start calling him Justice Gorsuch.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Blunt). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WICKER. 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. WICKER. Mr. President, I rise to express my strong support for 
Judge Neil Gorsuch, to say that I will proudly vote in favor of his 
confirmation tomorrow, and to express my confidence that history will 
judge this nominee to be an outstanding Associate Justice of the 
Supreme Court. I hope he serves a long and distinguished career and 
believe he will. I think Justice Neil Gorsuch will turn out to be a 
credit to the Supreme Court, to the President who nominated him, and to 
the Senate that will confirm him tomorrow.
  It is unfortunate that we have had quite a bit of discussion about 
procedure and the process that has gotten us to this vote, which will 
take place tomorrow afternoon.
  I had a conversation with one of my Democratic colleagues yesterday 
afternoon as we were leaving the Capitol Building. This is a person 
with whom I have worked on issues and for whom I have great regard. I 
asked him how he was doing, and he said: Well, OK. I am just getting 
ready for the United States Senate to be forever changed.
  I paused for a moment, and I said: How can it be that two reasonably 
intelligent Senators of good will can look at the same factual 
situation and see it so differently? I think my colleague did agree 
that, indeed, the situation we have is what has led us to our 
proceedings today.
  I do believe my colleagues on the other side of the procedural issues 
today are people of good will who are trying to do the right thing by 
their country on this issue, just as I have been.
  Let's look first of all at the candidate himself, and then I might 
take a moment or two to talk about what we have already done. That 
decision has been made. Let's talk about Neil Gorsuch, about this 
outstanding future Supreme Court Justice who I believe will be sworn in 
tomorrow or the next day.
  Is Neil Gorsuch qualified? Really, can anyone contest that he is 
highly qualified? He is perhaps one of the most qualified people ever 
to have been nominated by a President for the High Court. He has 
degrees from Columbia, Harvard Law, and Oxford University. He has 
received the American Bar Association's highest rating, the gold 
standard that we look at when it comes to judging nominees for the 
Federal bench up to and including the High Court. He served for 10 
years with distinction on the Tenth Circuit Court of Appeals. Clearly, 
he has got the qualifications, and clearly, he is among that group of 
qualified individuals that the President promised to look at back 
during the campaign and promised to send that type of individual over 
to the Supreme Court. I really don't think there is much that can be 
said to contradict the fact that Neil Gorsuch is qualified and highly 
qualified.
  So now let's ask if Neil Gorsuch is somehow out of the broad judicial 
mainstream. Again, I think it is clear that, based on his history, 
based on his testimony, and based on his rulings up until now, he is 
part of the broad judicial mainstream that will put him in good company 
on the Supreme Court and makes him a worthy successor to Justice 
Scalia.
  First of all, he has earned the praise of both conservatives and 
liberals. He has even won the endorsement of President Obama's former 
Acting Solicitor General, who wrote in the New York Times, ``If the 
Senate is to confirm anyone, Judge Gorsuch who sits on the U.S. Court 
of Appeals for the Tenth Circuit in Denver should be at the top of the 
list.'' So thank you to the former Acting Solicitor General for going 
beyond ideology and political philosophy and saying a true statement 
that Judge Gorsuch is outstanding and should be at the top of the list.
  Editorial boards across the country have touted Judge Gorsuch's 
credentials and temperament. The Denver Post, his hometown newspaper, 
wrote an editorial praising his ability to apply the law fairly and 
consistently. Of course, there has been newspaper after newspaper from 
the right and left across this country who come down on this side of 
the issue saying that Judge Gorsuch should be confirmed.
  Let's look also--and this has been pointed out so often that you 
wonder if you should say it again, but Judge Gorsuch on the Tenth 
Circuit has participated in 2,700 cases, he has written over 800 
opinions, and has been overruled by the Supreme Court one time. Is this 
a judicial radical? I think not.
  I think this is someone who is demonstrated to be in the judicial 
mainstream--one reversal by the Supreme Court out of 800 written 
decisions and 2,700 votes cast on panels with the Tenth Circuit. He has 
almost always been in the majority some 99 percent of the panels he 
served on, he was in the majority of those opinions, and 97 percent of 
those decisions were unanimous. This is hardly some radical pick as 
some might have suggested.
  Has the process been unfair? We have heard a lot about this. A lot of 
my dear friends on the other side of the aisle feel aggrieved for sure. 
They feel that Judge Garland, the nominee of President Obama in 2016, 
was treated unfairly. I would simply make this observation, and the 
American public can decide if this was unfair.
  This is a vacancy that came up during a heated, hotly contested 
Presidential year. There is really no doubt that, under similar 
circumstances, had the roles been reversed and had a Republican tried 
to nominate a nominee in the last year of his 8-year term, that a 
Democrat majority in the Senate would have done exactly as we did.

[[Page 5679]]

  I am not guessing when I say this because the Democratic leaders of 
previous years have said as much. No less than Joe Biden--who was a 
former chairman of the Judiciary Committee and later on became Vice 
President for 8 years--no less than Joe Biden said exactly the same. It 
almost became the Biden rule. Republican Presidential nominees taken up 
during the final year of a term will not be considered by a Democratic 
Senate. So the shoe was on the other foot, and we acted the same.
  So we will leave it up to the American people to decide whether Judge 
Garland was treated unfairly. I do not believe he was. As a matter of 
fact, I felt very comfortable during 2016 saying that who fills a 
Supreme Court seat is so important, such a significant and long-lasting 
decision, that the American people deserve to be heard on this issue. I 
felt comfortable making the Presidential election largely about what 
the Supreme Court would look like over the coming years.
  There is no question about it, the American people got to decide in 
November of 2016 whether they would like a judge in the mold of Justice 
Scalia whose seat we were trying to fill or would they like a judge in 
the mold of Judge Garland who President Obama was seeking to put in 
place. So I make no apology for saying to the American people, You get 
to decide in this Presidential year what sort of Supreme Court you 
want. The American people made that decision, and I am comfortable with 
that.
  I was asked today by several members of the press about the change in 
the rules that I voted for today. It is not a situation that makes me 
overly joyed. It is not my idea of a good time to overrule a precedent 
and to substitute another one in its place. You would rather not do 
that if you are a U.S. Senator; but the fact is that it puts us back 
into a place that we were for 200 years in this Republic.
  From the beginning of this Senate, 1789 through 1889, through 1989, 
up to and including 2003, there was no filibuster at all on Supreme 
Court Justices. There was no partisan filibuster at all in Supreme 
Court Justices, and no judge had ever been denied his position because 
of a partisan filibuster at any level--Federal judge, circuit level, or 
Supreme Court.
  That changed in 2003, and with the Miguel Estrada nomination, our 
Democrat friends stopped a qualified judge from going on the Federal 
appeals court. That was the beginning of an unfortunate 14-year 
experiment in judicial filibusters. It is not a filibuster that I 
think--it is not a precedent or experiment that I think this Senate can 
be very proud of, but it took place over a relatively short period of 
time over 14 years, and it ends it today.
  As of today, the U.S. Senate is back where it was for over 200 years 
in the history of this Senate and the history of our Republic without 
the ability to stop a judge on a partisan filibuster. In fact, this 
fact cannot be contradicted. There has never been in the history of our 
country, even in this past decade and a half of having the 
possibilities of a Supreme Court filibuster, there has never been a 
Supreme Court nominee in the history of our republic stopped by a 
partisan filibuster.
  Today that 225-year or so precedent would have ended had we not acted 
to change the rules back to where we are back to fundamental 
principles. I was not willing to see Judge Neil Gorsuch be that first 
nominee stopped by a partisan filibuster in the history of our country. 
I was simply not willing to do that.
  We now must proceed to the rest of our business. We will confirm 
Judge Gorsuch tomorrow. I think he will serve well. Then we have work 
to do. We have other nominees to consider, and then we've got an agenda 
that we need to tend to for our people.
  I am encouraged by the exchange of the first early steps of goodwill 
after this divisive process. Indeed, there was an article in one of our 
publications today that talked about a healthy feeling now in both 
caucuses, that we have got to put this procedural episode behind us, 
this crisis behind us and legislate.
  I am glad to hear that sort of bipartisan talk coming from the other 
side of the aisle. Another of my friends across the aisle said, ``We're 
not looking for dilatory procedures,'' he said. ``When there are things 
where we can work together, we're looking for that.''
  I am encouraged--even encouraged that my friend who I was talking to 
yesterday afternoon will conclude that we have not forever changed the 
Senate in a negative way, that we are, in fact, back to where we were 
before 2003 and getting things done.
  In the end, this is about an individual who is qualified. It is about 
a vacancy that needs to be filled. I for one am highly comfortable that 
the President, in Neil Gorsuch, has put forth an outstanding, eminently 
qualified judge and that he will serve us well. My vote tomorrow in 
favor of confirmation will be cast enthusiastically and proudly, and I 
think that it will stand the test of time.
  I thank the Presiding Officer very much, and at this time, I yield 
the floor.
  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. RUBIO. 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. RUBIO. Mr. President, tomorrow morning or tomorrow afternoon at 
some point, we will, I believe, vote to confirm Judge Gorsuch to be a 
Justice to the U.S. Supreme Court. There is so much that has been said 
about him and his qualifications. I have been listening to the speeches 
all week. Even headed to the committee hearing, I think so much had 
been said about him. This is a mainstream candidate. This is a 
mainstream judge. He is someone who voted with the majority 99 percent 
of the time during his time on the bench. He is someone who 97 percent 
of the time, in 2,700 cases, was a part of rulings that were unanimous. 
He most certainly, I believe, is someone who believes the Constitution 
should be interpreted according to its original intent of the writers, 
but he is certainly not someone outside the mainstream of American 
legal thinking, and he is certainly eminently qualified. It is 
interesting in that you see a broad array of individuals come forward 
and talk about his qualifications.
  I also thought it was interesting that there really was no coherent 
reason for opposing him. There are a lot of different opinions on the 
floor that claim he would not commit to certain decisions that people 
would like to see him make on the Court. That would be true of 
virtually everyone who has been nominated to the Court over the last 
quarter century.
  There is no doubt that he is someone who has certain beliefs and 
views about the Constitution that are reflective of the President's 
party, but that is what elections are about. Obviously, the great 
people whom President Obama appointed reflected his thinking. That is 
our system.
  A lot of the attention, though, in this debate has been about the 
process that brought us here. There has been tremendous consternation 
about the change that no longer would there be a requirement of 60 
votes in order to end debate. I think a lot of people have a 
fundamental misunderstanding of what has happened and how we have 
gotten here, and I thought it was important for the people of Florida 
and others who may be interested to know how I approached it, because 
it was something that I am not excited about or gleeful about or happy 
about. I would say that is probably the sentiment of most of the people 
here in the Senate. Yet it happened anyway.
  I saw a cartoon by one of these editorial cartoonists; I am not quite 
sure who it was. It had this picture of both sides basically saying: 
This is terrible, but we are going to do it anyway.
  I think it is important to understand, first and foremost, about the 
Senate. It is unique. There is no other legislative body like it in the 
world. Unlike most legislative institutions, it does not function by 
majority rule. It actually requires a supermajority to move forward. 
That was by design; it was not an accident.

[[Page 5680]]

  The people--the Founders, the Framers--created a system of government 
in which they wanted one branch of the legislature to be very vibrant, 
active, representative of the people. They represent districts, and 
they have 2-year terms. Then they created another Chamber which was 
different in nature. At the time, the U.S. Senate was designed, first 
of all, to represent the States. Where the House was the people's 
House, the Senate was the place the States were represented.
  The other thing they wanted to design was a place that was at some 
level possibly immune from the passions of the moment. They wanted a 
place where things would slow down for a moment, where we would take a 
deep breath and make sure we were doing the right thing. It was a wise 
course.
  Our Republic is not perfect, but it has survived for over two 
centuries. In the process, it has given us the most dynamic, most 
vibrant, and, I believe, the most exceptional Nation in all of human 
history. While not perfect, the Senate has been a big part of that 
endeavor.
  By the way, at the time, Senators were elected by the legislature; 
they were not even elected by people. Of course, that changed. I am not 
saying we should go back, but that is the way it was.
  That Senate was also unique because it had this tradition of 
unlimited debate. When a Senator got up to speak, they got to debate as 
long as they wanted, and no one could stop them. Then, at some point, 
that began to get a little bit abused, so they created a rule that 
required a supermajority, and that supermajority was further watered 
down. Then we arrive here, over the last 4 years, to see what has 
happened.
  Basically, what happens now is that there are two ways to stop 
debate, which is as a result of a procedure that was undertaken on the 
floor first by Senator Reid when he was the majority leader and now by 
the majority leader today on what is called the Executive Calendar, 
where there are nominations for the Cabinet, Ambassadors, the sub-
Cabinet, courts, and now the Supreme Court. No. 1 is by unanimous 
consent, when everybody agrees to it, or, No. 2, through 51 votes, a 
majority vote.
  I think that is problematic in the long term, not because of Judge 
Neil Gorsuch, for I believe that in any other era and at any other 
time, he would not have just gotten 60 votes or even unanimous consent 
to stop debate; I think he would have gotten 60-plus votes, maybe 70 
votes, to be on the Court. I think it is problematic because we do not 
know who is going to be the President in 15 years or what will be the 
state of our country. Yet, by a simple majority, without talking to a 
single person or getting a single vote from the other party or the 
other point of view, they are going to be able to nominate and confirm 
and place someone on the bench of the Supreme Court--to a lifetime 
appointment to a coequal branch of government--without even consulting 
with the other side. I think, long term, that is problematic--in the 
case of Neil Gorsuch, not so much, but for the future of our country, I 
think it could be problematic.
  The argument has been made that this has never been used before, so 
all of the stuff brings us back to where we once were. I think 
technically that is accurate, but this is not exactly where we once 
were. Where we once were was that there were people who worked here who 
understood they had the power to do this. They got it. They understood 
that if they had wanted to, they could have forced the 60 votes. They 
understood they had the power to do it, but they chose not to exercise 
it. They chose to be judicious because they understood that with the 
power, there comes not just the power to act but sometimes the power 
not to act, to be responsible, to reserve certain powers for 
extraordinary moments when it truly is required. And over the years, it 
has been abused.
  This is not going to be a speech where I stand up here and say that 
this is all on the Democrats, although I most certainly have had 
quarrels over some of the decisions that have been made by the other 
side of the aisle. I think it is a moment to be honest and say that we 
all have brought us here to this point, both sides, and it has required 
us to do this.
  The reason I was ultimately able to vote for the change today is that 
I am convinced that no matter who would have won the Presidential 
election and no matter which party would have controlled this Chamber, 
that vote was going to happen. Both sides were going to do this because 
we have reached a point in our politics in America where what used to 
be done is no longer possible, and that has ultimately found its way 
onto the floor of the U.S. Senate.
  Rules are rules, and ultimately the Republic will survive the change 
we have seen here today. I think the more troubling aspects are the 
things that have brought us to this point.
  A couple of days ago, while at a lunch with my colleagues, I said 
that one of the things, I think, we are going to have to accept is 
that, quite frankly, the men and women who served in this Chamber 
before us--20, 30 years ago--were just better than we are. They were 
human beings who, quite frankly, had deeply held beliefs. I do not know 
of any Member of this Chamber who was more conservative than Barry 
Goldwater or Jesse Helms. I do not know any Member of this Chamber who 
was more progressive or liberal than Hubert Humphrey or Ted Kennedy or 
others. Yet somehow, despite their deeply held principles, these 
individuals were able to work together to prevent what happened here 
today.
  The fact is, for both sides, that is not possible anymore. Today, our 
politics require us to use every measure possible, even if it is for 
symbolic purposes. That is just the way it is. That is more of a 
reflection of our political process than it is of the Senate.
  I have seen these articles that have been written of ``the end of the 
Senate'' or ``the death of the Senate.'' It is a little bit of an 
exaggeration, but I think it is actually just reflective of the fact 
that this is the way politics has become, that as a nation today, we 
are less than ever capable of conducting a serious debate about major 
issues in the way we once were able to do. I think everyone is to 
blame.
  I think the way politics is covered is to blame. Today, most articles 
on the issues before us are not about the issues before us; they are 
about the politics of the issues before us. Today, most of the work 
that is done in this Chamber and in the other Chamber has more to do 
with the messaging behind it than it does with the end result of where 
it will lead us. That is just the honest fact.
  Before people start writing or blogging: Well, look at all of these 
other times when the Senator from Florida--when I did some of these 
things--I admit it. I do not think there is a single person here with 
clean hands on any of this. I admit that I have been involved in 
efforts that, looking back on some of these things, perhaps, if we knew 
then what we know now, we would have done differently. I think it is 
important in life to recognize and learn from those experiences and to 
adapt them to the moment before us.
  I think, moving forward, the biggest challenge we will face in the 
country is that our issues are not going to solve themselves. They will 
require people from very different States, very different backgrounds, 
and very different points of view to be able to come together and solve 
some pretty big deals. It is ultimately not about silencing people or 
having them compromise their principles but about acknowledging that in 
our system of government, we have no choice but to do so. We have no 
choice.
  I think it also requires us to take a step back and understand that 
the people who have a different point of view than ours actually 
believe what they are saying. They hold it deep, and they represent 
people who believe what they are saying. I say this as someone who will 
admit that, in my time of public service, perhaps I have not always 
applied that as much as I wish I had. I try to. You certainly live and 
learn when you get to travel the country and meet as many people as I 
did over the last couple of years. I certainly think that impacts us 
profoundly.

[[Page 5681]]

  I have a deeply held belief in limited government and free enterprise 
and a strong national defense and the core principles that define 
someone as a conservative. But I have also grown to appreciate and 
understand the people who share a different point of view--perhaps not 
as much as I hope to one day be able to understand and respect it, but 
certainly more than I once did, simply because the more people you 
meet, the more you learn about them, and the more you learn and 
understand where they are coming from.
  Are we capable as a society to once again return to a moment where 
people who have different ideas can somehow try to figure out how to 
make things better, even if the solutions are not perfect? I hope so, 
because the fate of the most important country in human history is at 
stake. Are we capable of once again having debates, not that aren't 
vibrant and not that from time to time people may say things or even do 
things that they may regret, but certainly ones that at the end of the 
day are constructed for the purpose of solving a problem, not winning 
an election. I hope so, because if we don't, we will have to explain to 
our children why we inherited the greatest country in human history and 
they inherited one that is in decline.
  I don't mean to exaggerate, because ultimately this is a rule change. 
We don't vote on the Supreme Court every day, every week, every month. 
Sometimes we don't vote on it for long periods of time. But I think it 
exposes a more fundamental challenge that we face today in American 
politics, and that we better confront sooner rather than later, and 
that we should all confront with the understanding and the knowledge 
that none of us come to it with clean hands.
  We were reminded again this week by the images that emerged from 
Syria of what a dangerous world we live in, and we are reminded that 
the threats remain.
  I ask people tonight--no matter who you write for, who you blog for, 
what political party you are a member of, or whom you vote for in 
November--to ask yourself a question and to be honest about the answer. 
If, God forbid--and I mean this, God forbid--there were another 9/11-
style attack on the United States, how would we honestly react? Because 
September 11 was a scary day, and on that day I remember there weren't 
Democrats or Republicans. Everyone was equally frightened and everyone 
was equally angered. There was a sense of unity and purpose that we had 
not seen in a long time and have not seen since.
  I honestly believe, sadly, that if today there were another 9/11-
style attack on America, one of the first things we would see people 
doing is blaming each other, saying whose fault it was. You will have 
some people saying: Well, this terrorist attack happened because 
President Obama didn't do enough to defeat the terrorists. And others 
would say: It happened because the Republicans and the new President, 
President Trump, has not done enough, or has done things to provoke 
them. I honestly believe that. I think that is what the debate would 
look like. I hope I am wrong.
  Just think about how far we have come in almost 20 years, 15 years. 
That is the kind of debate I believe we would have. Think about how 
destructive that is.
  I also think we would see a plethora of crazy, fake stories about 
what was behind it. And here is the craziest part: Some very smart and 
educated people would believe those stories because we have reached the 
point now where conspiracies are more interesting than facts.
  I know that people may see this and say: Oh, I think you are 
exaggerating. Maybe, I hope so. But I honestly think that we are headed 
in a direction that is actually making us--not us the Senate, but us, 
Americans--incapable of confronting problems.
  I will just say this. What I really hope will happen soon is that we 
are going to get tired of fighting with other Americans all the time, 
that we will finally get fatigued with all of this constant fighting 
against other Americans. Americans are not your enemies. Quite frankly, 
I hope we have no enemies anywhere in the world, other than vicious 
leaders, and we hope to be a part of seeing taken them out of power at 
some point for the horrible things they do. I hope we will reach a 
point where people are saying, I am just tired of constantly fighting 
with other Americans. We will have differences and we will debate them. 
Thank God that we have been given a republic where we have elections 
every 2 years and where we can have these debates. But, in the interim, 
whether we like it or not, none of us is going anywhere.
  The vast and overwhelming of majority of Americans will live in this 
country for the rest of their lives. This is their home and this is 
their country. We are going to have to figure out how to share and work 
together in this unique piece of land that we have been blessed with 
the opportunity to call home. If we don't figure out a way to do that 
soon enough, then many of these issues that confront America will go 
unsolved, and not only will our people pay a price and our children pay 
a price, but the world will pay a price.
  So I know that is a lot to say about a topic as simple as a rule 
change and ultimately a vote for the Supreme Court, but I really think 
it exposed something deeper about American politics that we had better 
confront sooner rather than later, or we will all live to regret what 
it leads to, and that is the decline of the single greatest Nation in 
all of human history.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.


Congratulating the University of South Carolina Women's Basketball Team 
            on Winning the National Basketball Championship

  Mr. GRAHAM. Mr. President, on a more upbeat note, the lady Gamecocks 
are national champions.
  On April 2, this past Sunday, the University of South Carolina 
women's basketball team beat Mississippi State 67 to 55 to end a 
magical season and become the national champions.
  This is a magical year for the State of South Carolina. We have the 
Clemson Tigers, who are the national football champs. Coastal Carolina 
University is the College World Series title holder for baseball. Now 
we have the lady Gamecocks as the national champs and in women's 
basketball. Dustin Johnson is the No. 1 golfer in America, who hurt his 
back today and had to withdraw from the Masters. So that was bad.
  This was a great year. I went to the University of South Carolina. I 
still have 4 years of eligibility in all sports for a reason: I was no 
good. My colleague who is here actually played college football, and we 
are both Gamecocks fans.
  Coach Dawn Staley came to South Carolina in 2008. She has been on 
three gold medal national championship teams as a player. She is now in 
the Hall of Fame for basketball and is one of two African-American 
female head coaches to win the national title in women's basketball. 
She is the real deal. She is a wonderful lady.
  A'ja Wilson, our dominating junior forward, was the MVP for the Final 
Four and SEC player of the year, and first team All American. All the 
girls played really, really hard.
  The men's basketball team made it to the Final Four and lost in a 
very tough contest. I could not be more proud of the University of 
South Carolina men's basketball team.
  Frank Martin, the men's basketball coach, is the National Coach of 
the Year.
  This is a special time in South Carolina. If you are a Gamecocks fan, 
you have been long suffering for a while, and our ship finally came in.
  So congratulations to the lady Gamecocks. I can't wait until next 
year. We always say that with a sense of dread, but I can't wait until 
next year for South Carolina, Clemson, and every other sports team in 
South Carolina. We are doing something right. I don't know what it is, 
but we are all grateful in South Carolina.
  I yield to my colleague, who actually played college football, and I 
don't think he has any eligibility left because he was good.

[[Page 5682]]

  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. Mr. President, just in the very few spaces that are left 
after we finish chatting about our great State and the great season our 
school had, there are two things I want to note. No. 1, Coach Frank 
Martin: coach of the year, a fantastic person, a great communicator, a 
strong, disciplined coach. It is very hard to misunderstand what he is 
saying.
  Coach Staley: Absolutely, positively, unequivocally the best women's 
basketball coach, in my opinion, ever, against UCONN--ever. Dawn 
Staley, 20 years ago, came within a single point of winning a national 
championship as a player. Can you just imagine being a single point 
short? And this must feel like redemption for our coach.
  We are so proud of the fact that both of our coaches are producing 
student athletes, learning academically, striving on courts but 
prepared for life, for living. So we are excited about that.
  I want to note as well that there have only been 10 times in NCAA 
history--10 times--that both the women's and the men's basketball teams 
from the same school were in the Final Four at the same time.
  It is a good time to be a South Carolinian.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Mr. President, I have a question for the Senator from 
South Carolina. It is very important.
  Is the Senator aware that Frank Martin, an incredible coach for the 
men's basketball team is from Miami, FL?
  Mr. SCOTT. I am aware of that. And that is relevant to you how?
  Mr. RUBIO. I just wanted you to know.
  Mr. SCOTT. Will the Senator yield for a question?
  Mr. RUBIO. I will.
  Mr. SCOTT. What State are you from, sir?
  Mr. RUBIO. Florida.
  Mr. SCOTT. In what part of Florida were you born and raised?
  Mr. RUBIO. South Florida.
  Mr. SCOTT. Have you had any relationship with the coach before, 
Senator?
  Mr. RUBIO. I have. Coach Martin is a good friend, and I think a 
testament to how much Florida has to contribute to South Carolina.
  Mr. SCOTT. Having been there when you were in South Florida, I would 
say we made a big contribution to you too.
  Mr. RUBIO. I would say to the Senator from South Carolina, South 
Carolina has gotten better results for Frank Martin than it did for me. 
But we are very proud of Coach Martin. I would just add that, given the 
litany of athletic success this year by the State of South Carolina, I 
find that to be highly suspicious. I know I just spoke about conspiracy 
theories, but statistically, it is very unlikely that a State would 
have that many championships. I am not calling for a congressional 
inquiry, but I think it is an interesting topic of conversation.
  Mr. SCOTT. Mr. President, if my colleague will yield, I would note 
that Senator Graham did have clarity in his purpose of identifying the 
fact that the State has only 4.7 million people in a country of 330 
million people, and we have been able to secure the No. 1 golfer, that 
is true; the No. 1 baseball team, that is true; and the No. 1 football 
team in all of the Nation, Clemson University, that is true; and now 
the women's basketball champions, and that is true as well. However, I 
would point out that we were able to show you a wonderful experience as 
well in the State of South Carolina, and I hope that one day when you 
retire from politics, you and your lovely wife will join us and become 
a South Carolinian yourself. Perhaps then, and only then, will you be a 
successful football coach. You have a promising career in politics, but 
I know that you love and have passion for football, and perhaps when 
you retire, you too will be a national champion football coach.
  Mr. RUBIO. That is highly unlikely. But in all seriousness----
  Mr. SCOTT. I am serious----
  Mr. RUBIO. I do want to restate that Frank Martin is really an 
extraordinary person. Much more, Senator Scott and I both had a chance 
to interact with him on a number of occasions. I don't mean to single 
them out among all of the other suspicious athletic accomplishments in 
South Carolina that are certainly worth noting, but I would say, with 
Frank, one of the things that really impresses me is not what he does 
with these young men on the court but the kind of influence he is in 
their lives off the court and the impact he has.
  He was a high school coach in Miami and won State championships 
there. He comes from a hard-working family of Cuban exiles who made 
their home in South Florida. So we are very, very proud of what he has 
achieved. But what I am most proud of is the way Coach Martin has been 
able to influence those young men.
  He did defeat the Florida Gators to make it to the final four, and I 
was not happy about that. But I would say this--and I have said it to 
others--if the Florida Gators had to lose, I would want it to be to 
Frank Martin because of the extraordinary work he does. So I can't wait 
to see which Florida university hires him away.
  Thank you.
  Mr. SCOTT. Before Senator Rubio walks off the floor, having had the 
opportunity to listen to him over a number of years, he is eloquent. He 
is inspiring. Sometimes he is just dead wrong. Coach Martin will be 
staying at the University of South Carolina, without any question at 
all.
  Let me put the suspicions to rest. The reality of it is that good 
teams are made up of good recruiting. The fact that we have great 
recruiters in the State of South Carolina is indicative of the fact 
that we have a lot of titles in our State.
  So I will be praying for the Senator's State to succeed during the 
hurricane season, without any question, and to be consistently behind 
the State of South Carolina in every athletic event in which we have a 
competition, wherever there is a competition.
  Mr. RUBIO. I was going to say, I am not going to invoke that rule.
  Mr. SCOTT. Rule XIX.
  Mr. RUBIO. I think it is a good opportunity to say nothing--but 
congratulations, and we will be back.
  Mr. SCOTT. In a decade. Thank you.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, I have listened over the last several 
weeks to accusations and a type of smear campaign, quite frankly, of a 
good judge and a good man: Neil Gorsuch.
  It is remarkable to me to see that the debate has become more about 
character destruction than it has been about policy differences. I 
understand there are policy differences, but why does it have to come 
to this?
  In the past few weeks, I have heard on this floor that Neil Gorsuch 
shouldn't be a Justice on the Supreme Court because he has no 
independence from President Trump.
  No. 2, I have heard he was handpicked by far right groups like the 
Federalist Society, a group of legal minds committed to the original 
interpretation of the Constitution--clearly, a scandalous group of 
radicals.
  I have heard that Judge Gorsuch supports torture, he is against 
privacy, he hates truckers, he will step on the little guy, he will 
help only big corporations, he is just not mainstream, and I have heard 
that he shouldn't be selected because he was not approved first by the 
Democratic Senate leadership.
  All of these reasons have been given for a historic change in Senate 
tradition not to give a Supreme Court Justice an up-or-down vote. Block 
him on a procedural motion; for the first time ever, block a Supreme 
Court Justice on a procedural motion with a partisan vote.
  Let me take these one at a time as I walk through this.
  No. 1, I heard constantly that he is not independent enough from 
President Trump. As far as I know, he had never even met President 
Trump before. This didn't seem to be a standard, to be independent from 
the current sitting President.
  Let me give an example: Justice Elena Kagan, who is clearly qualified 
as a legal mind, but I would say Republicans have serious policy 
differences

[[Page 5683]]

with her. Justice Kagan was allowed to have an up-or-down vote. This 
body did not have a standard that they had to be independent from the 
President. If they had a standard like that, Justice Kagan would have 
never been on the bench. Why do I say that?
  On May 10, 2010, President Obama nominated Elena Kagan to be an 
Associate Justice of the Supreme Court. From 1997 to 1999, she served 
as Deputy Assistant to the President for Domestic Policy and was Deputy 
Director of the Domestic Policy Council for President Clinton. In 2009, 
she was confirmed Solicitor General of the United States for President 
Obama. She worked for President Obama in the Obama White House as his 
Solicitor General and then was taken directly out of the White House 
and put on the Supreme Court.
  I would say that is not independent from the President. So this 
mythological new standard that any Court Justice nominee needs to be 
independent from the President clearly wasn't in place when Elena Kagan 
was being heard.
  It is also interesting to me that one of the most talked about 
decisions from Judge Gorsuch was a Chevron decision that he put out. 
The whole crux of that decision was the independence of the executive 
branch, the legislative branch, and the judicial branch. Let me just 
read a few paragraphs from the decision he wrote. He wrote this:

       For whatever the agency may be doing under Chevron, the 
     problem remains that courts are not fulfilling their duty to 
     interpret the law and declare invalid agency actions 
     inconsistent with those interpretations in the cases and 
     controversies that come before them. A duty expressly 
     assigned to them by the APA [Administrative Procedures Act] 
     and one often likely compelled by the Constitution itself. 
     That's a problem for the judiciary. And it is a problem for 
     the people whose liberties may now be impaired not by an 
     independent decisionmaker seeking to declare the law's 
     meaning as fairly as possible--the decisionmaker promised to 
     them by law--but by an avowedly politicized administrative 
     agent seeking to pursue whatever policy whim may rule the 
     day. Those problems remain uncured by this line of reply.

  In other words, the judiciary needs to have oversight of the 
executive agency in what they put out as far as agency rulings, not 
allowing the White House or any agency to just make any decision they 
like. He continued writing:

       Maybe as troubling, this line of reply invites a nest of 
     questions even taken on its own terms. Chevron says that we 
     should infer from any statutory ambiguity Congress's 
     ``intent'' to ``delegate'' its ``legislative authority'' to 
     the executive to make ``reasonable'' policy choices. But 
     where exactly has Congress expressed this intent? Trying to 
     infer the intentions of an institution composed of 535 
     members is a notoriously doubtful business.

  In all the accusations that he is not independent of the President, 
in one of his most famous opinions, he declares that we absolutely need 
to have independence from the White House--of any White House--and have 
a clear separation of powers between judiciary, legislative, and 
executive. That actually does not stand up to simple muster. So the 
first thing falls: no independence from the President.
  The second issue which came up often was that he was handpicked by 
far-right groups. There were all these groups that handpicked him, so 
somehow that made it horrible that these different groups would 
actually try to support him.
  I go back to Justice Kagan. Again, that wasn't the standard at that 
time, and I could use numerous judges through that process. Elena Kagan 
was supported by the AFL-CIO, by the Human Rights Campaign, by numerous 
environmental groups like WildEarth Guardians, Sierra Club, and the 
National Organization for Women. She had a lot of different liberal or 
progressive groups that were very outspoken in support of and helping 
to push her nomination.
  There is nothing wrong with that. She was a nominee who was actively 
engaged in White House politics; she was actively engaged in Democratic 
campaigns. Before that, as far as working for the Dukakis campaign, she 
was a Democratic activist, and it was well known. That did not preclude 
her from getting an up-or-down vote for the Supreme Court because she 
is sitting on the Supreme Court today. There was no cloture vote 
mandate or requirement for a 60-vote threshold as there was pushed by 
this minority.
  This issue that somehow you can't be handpicked or that having some 
groups that would support you from the outside somehow precludes you 
from being a serious consideration is not legitimate, and everyone 
knows it.
  I have also heard individuals out there saying that he is for 
torture, he is against privacy, he hates truckers, he will step on the 
little guy, he is only for big corporations, and he is not mainstream.
  Here is the problem: When you actually look at the history, it is 
very different from that. Of the 2,700 cases that Judge Gorsuch has 
been involved in, in the 10\1/2\ years he has been on the Tenth 
Circuit, he has been overturned in his opinions once--once in 2,700 
cases; 97 percent of the time his cases were settled unanimously, and 
99 percent of the time he voted with the majority.
  Lest you don't know the Tenth Circuit as we know the Tenth Circuit in 
Oklahoma, because it is the circuit court for our State, the majority 
of the judges on the Tenth Circuit are judges selected by President 
Carter, President Clinton, and President Obama. They hold the majority 
in the Tenth Circuit. So to say that he voted with them in the majority 
99 percent of the time would be to say that the Carter, Clinton, and 
Obama appointees also apparently had these radical ideas. It is just 
not consistent with the facts.
  Then I have heard of late that the President should have engaged with 
Senate leadership on both sides of the aisle to be asked for their 
approval of the nominee before that nominee was ever brought. Well, I 
don't know if that has ever been a requirement. There have been times 
that Presidents in the past have had conversations with people on both 
side of the aisle. Fine, but it is certainly not a requirement of the 
Constitution, and it certainly doesn't preclude a nomination.
  It is interesting to me that Judge Gorsuch offered to meet with 100 
Senators one-on-one, face-to-face. Only 80 of them accepted his offer; 
20 of them refused to even meet with him face-to-face. He did 4 days of 
hearings in the Judiciary Committee, 4 solid, long days, where he 
answered every possible question he could answer.
  He has had extensive background checks. Everyone has gone through 
every piece of everything they could find that has ever been written. 
In fact, the latest new accusation is they found a couple of places 
where what he wrote seemed to look strangely like something else 
someone else wrote--which, when I saw it and read the side-by-side on 
it, I thought: He forgot to do an annotation and a footnote in the 800 
opinions he has written. In the tens of thousands of annotations that 
he did, he didn't do a couple of them. Somehow that doesn't seem to 
rise to the level that he shouldn't be on the Supreme Court--that in 
the tens of thousands of annotations he put there, he might have missed 
a couple.
  I would challenge anyone serving in this body, to say: You can serve 
only if you have never missed a single footnote on any paper you ever 
wrote. I would say: Those who live in glass houses probably shouldn't 
throw stones because we have all had times like that.
  He is a solid jurist. I believe he will do a good job. In the time I 
sat down in his office, we looked at each other face-to-face, and I 
went through multitudes of hard questions with him, trying to determine 
his judicial philosophy, seeking one simple thing: Will you interpret 
the law as the law--not with personal opinion but as the law.
  This body is about opinions. This body is about listening to the 
voices all across our States and trying to make good policy. Across the 
street at the Supreme Court, it is about one thing: What does the law 
say and what did it mean when it was written?
  The Constitution and law were not living documents. They do live in 
the sense that if you want to make changes in the Constitution, you 
amend the Constitution and you make changes to it. You can't suddenly 
say it meant one thing one day but culture has changed and now it means 
something new.

[[Page 5684]]

  If you need new law, this body passes new law. Across the street, 
they read the law and ask: What does it mean? It is that 
straightforward.
  I look forward to having a jurist on the Supreme Court as an 
Associate Justice who says: I may not even like all my opinions and you 
may not like all my opinions, but I am going to follow the law, and 
what the law says is what we are going to do.
  I think that is the best we can ask from a Supreme Court Justice, and 
I think it is a fair way to be able to get him an up-or-down vote. I 
have to tell you, I am profoundly disappointed that the Senate, to get 
a simple up-or-down vote, had to go through all of this just to be able 
to do what we have always done. Regardless of background or preferences 
or policy or politics, this body has always said the President, for his 
nomination, should get an up-or-down vote when they go through the 
process.
  We are going to do that tomorrow. We will put Judge Gorsuch on the 
bench, and we are ready for him to go to work.
  Mr. President, I yield back.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. PERDUE. 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. PERDUE. Mr. President, it is humbling to be on the floor of the 
U.S. Senate with colleagues like Senator Lankford from Oklahoma. It is 
an honor to listen to his words, to his heart, on an issue like today 
because this is, I believe, a historic day.
  On January 31 of this year, I had the great honor of being invited to 
the White House when President Donald Trump announced his nominee for 
Associate Justice of the U.S. Supreme Court, Judge Neil Gorsuch. It was 
a professional rollout of this nomination, but it spoke more to the 
man, the individual, Judge Gorsuch, than it did to the circumstance 
surrounding it.
  Today, I want to again discuss Judge Gorsuch's nomination and the 
200-plus years of historical precedent put on the line today. As an 
outsider of this political process, it is clear to me what is going on 
here. It really has nothing to do with Judge Gorsuch.
  The minority party today abandoned 230 years of tradition because of 
politics, in my opinion. Never before in the U.S. history has a purely 
partisan filibuster killed a Supreme Court nomination. Never before, in 
the history of our country, has a partisan filibuster killed a district 
judge nomination. Never before, and until 2003, has a partisan 
filibuster killed a circuit judge nomination. Mr. President, 2003 was 
the first time in our history that the rules of the Senate were used in 
a purely partisan way to stop a judicial nomination.
  In 2003, the Democratic Party threw out over 200 years of precedent 
when it comes to circuit judge nominees and killed a circuit judge 
nomination. Today they attempted to do the same thing when it comes to 
a nominee to the highest Court in the United States.
  It should be noted Republicans did not attempt to do this to either 
Justice Sotomayor or Justice Kagan when they were nominated by 
President Obama a few years ago. Throughout our history, even the most 
controversial Supreme Court nominees have gotten an up-or-down vote, a 
simple majority vote. On that note, I also wish to point out there is 
no longstanding rule or tradition that a Supreme Court nominee must 
obtain 60 votes to be confirmed.
  Judge Clarence Thomas was confirmed by a narrow 52-to-48 margin. Even 
though a single Senator could have required 60 votes to invoke cloture, 
and none did. Likewise, Justice Samuel Alito was confirmed by a 58-to-
42 margin. Again, no Senator required 60 votes to invoke cloture. 
Neither of those nominees were filibustered to death. They got an up-
or-down vote.
  Mainstream media outlets have repeatedly fact-checked the minority 
party on this. For example, last week the Washington Post said: ``Once 
again: There is no `traditional' 60-vote `standard' or `rule' for 
Supreme Court nominations, no matter how much or how often Democrats 
claim otherwise.''
  Even PolitiFact has repeatedly pointed out that ``Gorsuch, like all 
other Supreme Court Justice nominees, needs only a simple majority to 
be confirmed by the Senate.''
  Clearly, outside of this body, it is recognized in the media, and on 
both sides of the aisle for that matter, that there is no such thing as 
a 60-vote standard when it comes to the nomination and confirmation of 
Supreme Court Justices.
  Additionally, the notion that the minority party filibustering Judge 
Gorsuch's confirmation is the same as our not allowing a vote last 
year, that logic doesn't hold up.
  Last year, I joined many of my colleagues on the Senate floor in 
explaining why we felt it best not to give advice or consent on the 
nomination of a Justice to the Supreme Court during a Presidential 
election year. The integrity of the process, clearly outlined in 
article II, section 2, of the Constitution was at stake. It was about 
the principle, not the individual. Unlike the argument that it is 
tradition for a Supreme Court nominee to receive 60 votes, there is 
actual precedent for the position we took last year on President 
Obama's Supreme Court nominee.
  Former Vice President Biden, former Minority Leader Reid, and many 
other Members of both parties have agreed that the political theater of 
a Presidential election year should not influence the process.
  The last time a Justice was nominated and confirmed by a divided 
government in a Presidential election year was 1888. Clearly, there is 
more than 100 years of precedent for the position we took last year in 
not giving advice and consent.
  We took a position that was consistent with more than 100 years of 
actions and comments from Members of both parties. Let's just get over 
that. This year stands on its own, independently. The time for debate 
on this issue has come and gone.
  Furthermore, it is obvious that what is at issue here is not Judge 
Gorsuch's qualifications. In 2006, Judge Gorsuch was confirmed to the 
Tenth Circuit Court of Appeals by a voice vote in this body with no 
opposition. Again, no opposition on the floor of the U.S. Senate, just 
10 years ago.
  Then-Senator Biden did not object, then-Senator Reid did not object, 
then-Senator Clinton did not object, and, yes, then-Senator Obama did 
not object. Twelve current Members of this body, including the current 
senior Senator from New York, the senior Senator from Illinois, the 
senior Senator from California, did not object to Judge Gorsuch's 
confirmation in 2006.
  It is a simple fact, they had the opportunity to raise an objection, 
and they did not do it. It is obvious that what is going on here has 
nothing to do with Judge Gorsuch's qualifications. What is at issue is 
nothing but pure, unadulterated politics.
  This is exactly why I ran for the U.S. Senate, having never been 
involved in politics. This is what makes people home very nervous about 
the gridlock in this body. This is why President Trump still cannot 
meet with his full Cabinet today, months after he was sworn in as our 
President. This is the very cause of gridlock that I believe is causing 
the dysfunction in Washington.
  As I said, Judge Gorsuch was confirmed unanimously by voice vote with 
no opposition in 2006. Judge Gorsuch is a principled jurist who is 
steadfast in his commitment to defending and upholding the 
Constitution.
  In my private meetings with him, I have been very impressed that this 
is his starting and finishing point: He is there to interpret the law, 
not to be an activist for his own personal opinion. He boasts a 
unanimous seal of approval from the gold standard, the American Bar 
Association.
  Throughout his extensive career in both the public and private 
sectors and through hour after hour of testimony, Judge Gorsuch has 
demonstrated an impartial commitment to the rule of law. This is 
another area in which legal minds from both sides of the aisle agree.
  Harvard Law School Professor Noah Feldman, himself no conservative,

[[Page 5685]]

called it a ``truly terrible idea'' to try to force Judge Gorsuch, or 
any judge for that matter, to base their decisions on the parties 
involved. Beyond a shadow of a doubt, I know that Judge Gorsuch fully 
understands that the job of a judge is to interpret, not make, the law.
  As he himself said, ``A judge who likes every result he reaches is 
very likely a bad judge, reaching for results he prefers rather than 
those the law compels.''
  This commitment to impartiality, regardless of those involved in 
individual cases, is further evidence his nomination should be 
confirmed rather than filibustered to death like we have seen today.
  Judge Gorsuch's record is evidence enough that he is an impartial 
judge committed to the Constitution. The opposition has said he is 
outside the mainstream. That also doesn't hold up.
  In 97 percent of his 2,700 cases, judges who also heard the cases 
unanimously ruled with Judge Gorsuch. In 99 percent of his cases, he 
was not a dissenting vote. The other side is consistent in saying he is 
not mainstream. Seriously? How much more mainstream does he have to be?
  To that point, Judge Gorsuch has drawn praise from both liberals and 
conservatives alike. Former President Obama's Acting Solicitor General 
called Judge Gorsuch ``an extraordinary judge and man.''
  He is not alone in that assessment of Judge Gorsuch. Mainstream media 
outlets across the country have praised this nominee to the Supreme 
Court. Recently, the USA Today Editorial Board wrote: ``Gorsuch's 
credentials are impeccable . . . he might well show the independence 
the nation needs at this moment in its history.''
  The Washington Post's Editorial Board wrote:

       We are likely to disagree with Mr. Gorsuch on a variety of 
     major legal questions. That is different from saying that he 
     is unfit to serve.

  The Wall Street Journal Editorial Board wrote: ``No one can replace 
Antonin Scalia on the Supreme Court, but President Trump has made an 
excellent attempt by nominating appellate Judge Neil Gorsuch as the 
ninth justice.''
  As I have noted, the minority party's move to filibuster Judge 
Gorsuch is not rooted in any actual precedent in the U.S. Senate. It 
also clearly has nothing to do with Judge Gorsuch himself. By any and 
all objective measure, he is a mainstream, well-qualified nominee to 
the U.S. Supreme Court.
  That is a point agreed upon by liberals and conservatives alike. Yet 
here we are still today throwing out almost 230 years of tradition, 
purely because of politics. This body must rise above the self-
manufactured gridlock.
  Our last President, according to constitutional law professor 
Jonathan Turley, created a constitutional crisis. It was caused by 
shutting down the Senate and creating the fourth arm of government, the 
regulators, and threatening the very balance of our three-branch 
system. It allowed the former President, through regulatory mandates 
and Executive orders, to basically fundamentally change the direction 
of the country without Congress.
  Given this threat to the Constitution, at this point in our history, 
we absolutely need a jurist on the Supreme Court who will bring a 
balanced view and impartial commitment to the rule of law. It is 
imperative we confirm Judge Neil Gorsuch tomorrow--a principled, 
thoughtful jurist--to the U.S. Supreme Court.
  If we can't confirm this individual, who is absolutely in the middle 
of the profile agreed to by past Democrats and Republicans alike, who 
in the world will we ever be able to confirm?
  Seriously, if we can't get together on this individual, who is in the 
mainstream in the middle of the profile? How in the world are we ever 
going to save Social Security, Medicare, all the other critical issues 
that are before this body? Bipartisan compromise is what this body was 
built on. I call on my colleagues to put self-interest and even party 
interest aside for the Nation's interest.
  I count it an honor to be in this body. It is a sobering 
responsibility, but I am very optimistic when men or women of the 
character of a Neil Gorsuch are willing to go through this grueling 
exercise that we put them through in order to serve. Because of that, I 
am proud tonight to be a part of a majority that stood up and precluded 
this from happening.
  I am so excited that tomorrow we will confirm Judge Neil Gorsuch as 
the next Associate Justice to the United States Supreme Court.
  I yield back my time.
  The PRESIDING OFFICER (Mr. Young). The Senator from Ohio.
  Mr. PORTMAN. Mr. President, I rise today to express my strong support 
again for Judge Neil Gorsuch. I spoke on the floor the other day about 
Judge Gorsuch. I just heard my colleague from Georgia talk about him, 
and he did a terrific job.
  This guy, Neil Gorsuch, is the right person for the job. He is 
qualified. He is smart and he is fair, and a bipartisan majority of the 
Senate will vote for this worthy candidate tomorrow. Let me underscore 
that. A bipartisan majority of the Senate will vote for this worthy 
candidate tomorrow. He will end up getting on the Court.
  I must tell you that I regret that some of my colleagues on the other 
side of the aisle refused to provide him that up-or-down vote without 
going through the process we had to go through today. As someone who 
has gone through two Senate confirmations myself, I know they are not 
always easy. But I will tell you, it is a whole lot better for this 
institution and our country when we figure out ways to work together--
in this case, to continue a Senate tradition of allowing up-or-down 
votes.
  I like to work across the aisle. I have done that through my career. 
I can point to 50 bills I authored or co-authored that have become law 
in the last 6 years. They were bipartisan, by definition, because they 
got through this body and were signed into law by President Obama. I 
have voted for President Obama's nominees before President Trump. When 
President Obama had a well-qualified judge here on the floor, I voted 
for that judge. I voted for Loretta Lynch. That was not an easy vote. I 
took heat for it back home because I thought she was well-qualified. I 
think that is what we ought to do in this body.
  I am disappointed in the situation we are in. I think we could have 
followed more than 200 years of Senate tradition and not allowed for a 
partisan filibuster to try to block this nomination. We chose not to do 
that in this body. Never in the history of this body has there been a 
successful partisan filibuster of a Supreme Court judge--never. Some of 
my colleagues said: How about Abe Fortas? That was several decades ago, 
and that was bipartisan. Abe Fortas was a Supreme Court Justice who had 
some ethics issues, and he actually dropped out of trying to get the 
nomination because of it. But never have we stood up as Republicans--or 
stood up as Democrats--and blocked a nominee by using the filibuster. 
It has just not been the tradition.
  Instead, it has been to allow an up-or-down vote--a majority vote. 
There are two Justices on the Supreme Court right now who got confirmed 
with less than 60 votes. One is Clarence Thomas--probably the most 
controversial nominee in the last couple of decades, I would say. I 
wasn't in the Senate then, but I was watching it, as many of you were. 
It was certainly controversial, yet he got to the Court with 52 votes. 
Justice Alito was confirmed by 58 votes only 10 years ago. So these 
nominees were not filibustered.
  By the way, President Obama's nominees, Elena Kagan and Justice 
Sotomayor, were not filibustered by Republicans. They were given an up-
or-down vote. In the history of the Senate, 12 nominations have been 
defeated on the floor, but, again, never a successful partisan 
filibuster. Even Judge Robert Bork--some of you remember that 
nomination. It was very controversial. His nomination was defeated in 
1987. He was a Reagan appointee. But he wasn't filibustered. They had 
an up-or-down vote, and he was voted down.

[[Page 5686]]

  So what are these objections to Judge Gorsuch that would rise to that 
level where we want to say that over 200 years of Senate tradition 
ought to be shunted aside and we ought to stop this man? What are those 
objections? I must say that I have listened to the floor debate and 
talked to some of my colleagues on the other side of the aisle. I made 
my case. They made their case. I just don't see why this man is not 
qualified. He was a law clerk for two Supreme Court Justices. He served 
in the Justice Department and had a distinguished career there. He was 
also a successful lawyer in the private sector. And of course, he has 
been a Federal judge for a decade. So we can look at his record.
  My colleague from Georgia just talked about that record. It is why 
the American Bar Association--a group not known to be a conservative 
body--decided that he was ``well qualified.'' They unanimously declared 
him to get their highest rating of ``well qualified.'' This is what 
they said about him. They said:

       Based on the writings, interviews, and analyses we 
     scrutinized to reach our rating, we discerned that Judge 
     Gorsuch believes strongly in the independence of the judicial 
     branch of government, and we predict that he will be a strong 
     but respectful voice in protecting it.

  That is why the American Bar Association gave him their highest 
rating. Not qualified? By the way, nobody objected--nobody--for any 
reason, to his nomination to serve as a Federal judge, to be a circuit 
court judge, a level right below the Supreme Court, back in 2006. Not a 
single Senator objected. By the way, those Senators included Senator 
Hillary Clinton, Senator Barack Obama, Senator Joe Biden, and a number 
of Senators, of course, who are still here today with us, who chose to 
filibuster this nomination. So I don't know.
  I heard some of my colleagues talk about some of his decisions. They 
have picked one or two of his decisions as judge over the past 10 years 
and said they didn't like the outcome, and that is why he is not 
qualified to sit on the Supreme Court. I have a couple of concerns with 
that argument. One, Judge Gorsuch has decided over 2,700 cases. I am 
sure we can all find one or two of these we didn't like. That is true 
for any judge. As I said, I voted for a number of President Obama's 
nominees, and I voted against others based on the merits and based on 
their qualifications. It didn't mean I agreed with them--trust me--or 
disagreed with them on everything. The odds are very good that you 
agree with Judge Gorsuch's decisions a lot more than you disagree with 
them. You know why I say that? Because the odds are really good that 
you agreed with them. Let's try 97 percent, because 97 percent is the 
number of his decisions that were unanimous with the other judges on a 
three-judge panel. So 97 percent of the time, his decisions were 
unanimous.
  Who is on these three-judge panels? Well, it is usually bipartisan in 
the sense that it is nominees who have been nominated by different 
Presidents of different parties. In the case of his circuit court, 
there is Judge Paul Kelly, who was appointed by President George H.W. 
Bush. There have also been several of his colleagues who were appointed 
by President Bill Clinton. Judge Gorsuch even mentioned in his 
testimony that he was on judge panels. He presided with Judge William 
Holloway, who was appointed by President Lyndon B. Johnson. So these 
three-judge panels tend to have judges that were appointed by 
Republicans and Democrats alike--97 percent of the time unanimous. And 
98 percent of the time, his decisions were in the majority.
  So again, I think the odds are pretty good that we are going to agree 
with Judge Gorsuch a lot more than we disagree when we look at his 
cases. He is a consensus builder. He is a guy who figures out how to 
come to a decision people agree with on different sides of the aisle, 
and from different points of view. That is what his record his. 
Actually, that doesn't surprise me at all, because he clerked in the 
Supreme Court for two Justices. One was Byron White and the other was 
Justice Anthony Kennedy. Those are two Justices who get a lot of heat. 
Byron White did, and Anthony Kennedy does--from both sides. Why? 
Because they tend to be in the middle. They write a lot of decisions 
that are consensus decisions. They tend to be that fifth vote on a 5-
to-4 decision. That is whom he clerked for.
  To note that somehow this guy shouldn't be confirmed for the Supreme 
Court because of one or two decisions just doesn't seem to be 
legitimate to me. This is a guy who had thousands of decisions, and the 
vast majority were 98 percent or 97 percent unanimous. He had one 
decision that was appealed to the Supreme Court because the litigants 
must have thought he was wrong. They took it to the Supreme Court to 
correct him. What happened? The Supreme Court affirmed it. They agreed 
with Judge Gorsuch.
  I don't know whom you could find out there among judges who has a 
stronger record. In every case, somebody wins and somebody loses. I get 
that. Think about this: Out of Judge Gorsuch's 180 written opinions, 
only one has ever been appealed to the Supreme Court--wow. And they 
agreed with his ruling.
  He made it clear he makes decisions not based on the outcome he 
likes, but based on what the law says. He thinks his job on the court 
for the last decade--and going forward--is to actually look at the law 
and decide what the law says and what the Constitution provides, not 
what he wants.
  I think that is the kind of judge we would want--particularly those 
of us who are lawmakers, right? We are the ones writing the laws. We 
would hope that would be respected and that judges wouldn't try to 
legislate. This is what he said in his testimony:

       A judge who likes every outcome he reaches is very likely a 
     bad judge . . . I have watched my colleagues spend long days 
     worrying over cases. Sometimes the answers we reach aren't 
     ones we would personally prefer. Sometimes the answers follow 
     us home and keep us up at night. But the answers we reach are 
     always the ones we believe the law requires.

  Interesting perspective. He is saying: Hey, if you like all your 
decisions, you are probably not a very good judge because your personal 
beliefs aren't always going to be consistent with what the law says or 
the Constitution says.
  He goes on to say:

       I've ruled for disabled students, for prisoners, for the 
     accused, for workers alleging civil rights violations, and 
     for undocumented immigrants. Sometimes, too, I've ruled 
     against such persons. My decisions have never reflected a 
     judgment about the people before me, only a judgment of the 
     law and the facts at issue in each particular case.

  Again, it seems to me that is the kind of person you want on the 
court. Making a decision as a judge is not about ruling in favor or 
against somebody because you like them or don't like them. It is about 
applying what the law says. As he said in his testimony recently, his 
philosophy is ``to strive to understand what the words on the page mean 
. . . [to] apply what the people's representatives, the lawmakers, have 
done.'' That is us. That is the House. That is people who are elected 
back home by the people who expect us to be the elected representatives 
and to listen to their concerns and then vote. Those laws should not be 
rewritten by the judiciary. That is the approach he takes. I would 
think any legislator would want to ensure the laws we pass are applied 
as written. Much more importantly, that is what people want too. That 
is what people should insist on. We want our votes to count. We want 
our voices to be heard.
  President Lincoln warned in his first inaugural address that if 
judges legislate from the bench, ``the people will have ceased to be 
their own rulers.''
  ``The people will have ceased to be their own rulers'' if judges 
legislate from the bench.
  I think President Lincoln was right. When judges become legislators, 
the people do have less of a voice. Judge Gorsuch himself summed it up. 
He said: ``If judges were just secret legislators, declaring not what 
the law is but what they would like it to be, the very idea of 
government by the people and for the people would be at risk.'' I think 
that is the deeper issue here.
  Again, I think he is the kind of judge we should want. Judge Gorsuch 
and I

[[Page 5687]]

had the chance to sit down and talk about this philosophy. We talked 
about his background and his qualifications. I asked him some very 
tough questions, as he got asked during the Judiciary Committee 
nomination process. His hearings were something that all Americans had 
the opportunity to watch. He did a great job, in my view, because he 
did focus on how he believes that his job is not to allow his personal 
beliefs to guide him but, rather, upholding the law as written and the 
Constitution.
  I think that approach is a big reason he has earned the respect of 
lawyers and judges from across the spectrum, by the way. If you look at 
the people who say this guy is a great judge, it goes all the way 
across the political spectrum.
  Professor Laurence Tribe of Harvard Law School, an advisor to former 
President Obama, said Judge Gorsuch is ``a brilliant, terrific guy who 
would do the Court's work with distinction.'' Those of you who know 
Laurence Tribe, he is well-regarded, considered to be a liberal thinker 
on many issues. But he has looked at the guy, and he has looked at his 
record. He knows him. He says he is brilliant, terrific, and will do 
the Court's work with distinction.
  Neal Katyal--you have heard about him. He was the Acting Solicitor 
General for President Obama, a guy who knows a thing or two about 
arguing before the Supreme Court. He said Judge Gorsuch's record 
``should give the American people confidence that he will not 
compromise principle to favor the President who appointed him. . . . 
He's a fair and decent man.''
  This goes to what the ABA said about him: Independent. He will 
protect the independence of the judiciary.
  Look, he is smart, no question about it. You saw him answer those 
questions. You have seen his record. He is qualified, as we talked 
about. He is certainly a mainstream judge, when you look at his 
opinions--98 percent of the time in the majority, 97 percent of the 
time unanimous. Three-judge panels. He has the support--the bipartisan 
support--of a majority of the Senate.
  By the way, the American people, as they have plugged into this, also 
think he ought to be confirmed. There is a recent poll by the 
Huffington Post, which is not considered a conservative newspaper or 
entity. They said the people want us to confirm Neil Gorsuch by a 17-
point margin. Why? Because they watched this. They looked at the guy. 
They saw the hearings. They looked at his record. People believe he is 
the right person to represent them on the Supreme Court.
  So, again, while I am disappointed this process has become so 
polarized and divisive here in this body, I am glad to see this good 
man take a seat in our Nation's highest Court. I believe he deserves 
our support.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.

                          ____________________