[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5764-5772]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the Gorsuch 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Neil M. Gorsuch, of 
Colorado, to be an Associate Justice of the Supreme Court of the United 
States.
  The PRESIDING OFFICER. Under the previous order, there will now be 2 
hours of debate, equally divided in the usual form.

[[Page 5765]]


  Mr. McCONNELL. 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. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Recognition of the Minority Leader

  The Democratic leader is recognized.
  Mr. SCHUMER. Madam President, first, let me address the nomination of 
Judge Gorsuch, which will soon proceed to a final vote over the 
objection of we Democrats. Even though Democrats had principled reasons 
to oppose this judge, even though we offered many times to meet with 
the majority to discuss a new nominee and a way forward, the 
Republicans chose to break the rules and erase the 60-vote threshold 
for all judicial nominees. They had many options, and they chose, 
unfortunately, the nuclear option.
  I believe it will make this body a more partisan place, it will make 
the cooling saucer of the Senate considerably hotter, and I believe it 
will make the Supreme Court a more partisan place. As a result, 
America's faith in the integrity of the Court and their trust in the 
basic impartiality of the law will suffer. Those are serious things for 
this Republic. Prior to yesterday's cloture vote, I shared my views on 
this moment at length, and I will let those comments stand in the 
Record.
  As I have said repeatedly over the last week, week and a half, let us 
go no further down this road. I hope the Republican leader and I can, 
in the coming months, find a way to build a firewall around the 
legislative filibuster, which is the most important distinction between 
the Senate and the House. Without the 60-vote threshold for 
legislation, the Senate becomes a majoritarian institution like the 
House, much more subject to the winds of short-term electoral change. 
No Senator would like to see that happen so let's find a way to further 
protect the 60-vote rule for legislation.
  Since he will soon become the ninth Justice on the Court, I hope 
Judge Gorsuch has listened to our debate in the Senate, particularly 
our concerns about the Supreme Court increasingly drifting toward 
becoming a more pro-corporate Court that favors employers, 
corporations, and special interests over working America.
  We all know there is an anger and sourness in the land because 
average people aren't getting a fair shake compared to the powerful. In 
many cases, the Supreme Court is the last resort for everyday Americans 
who are seeking fairness and justice against forces much larger than 
themselves. At a time when folks are struggling to stay in the middle 
class and are struggling as hard as ever to get into the middle class, 
we need a Justice on the Court who will help swing it back in the 
direction of the people.
  So we are charging Judge Gorsuch to be the independent and fairminded 
Justice America badly needs. If he is, instead, a Justice for the 
Federalist Society and the Heritage Foundation, that will spell trouble 
for America.


                                 Syria

  Finally, Madam President, on Syria, I salute the professionalism and 
skill of our Armed Forces that took action last night. The people of 
Syria have suffered untold horrors and violence at the hands of Bashar 
al-Assad and his supporters in Tehran and in Putin's Russia. Making 
sure Assad knows when he commits such despicable atrocities he will pay 
a price is the right thing to do. However, it is now incumbent on the 
Trump administration to come up with a coherent strategy and consult 
with Congress before implementing it.
  Madam President, 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. BLUNT. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. Madam President, I want to talk about what we are doing 
today and how important it is, how unique it is in the history of the 
country. Since 1789, 112 people have served on the Supreme Court. It is 
hard not to be reminded today, as we vote for the replacement for 
Justice Scalia, that he served on the Court for 26 years after Ronald 
Reagan, who appointed him, left the White House and 13 years after 
President Reagan died. Clearly, the impact of a Supreme Court 
nomination by the President and confirmation by the Senate is one of 
those things that has the potential to last long beyond either the 
service of those in the Senate at the time or beyond those of the 
President at the time. It is a significant decision.
  A Federal Court appointment, generally an appointment for life, is 
different than an appointment for someone who serves during the tenure 
of the President. I think almost all of us look at judicial 
appointments differently than we look at Cabinet appointments and other 
appointments that are concurrent with the President's term. This is an 
appointment that lasts as long as the judge is willing to serve and 
able to serve.
  At 49 years old, Judge Gorsuch, who has already been a judge for 10 
years, should know whether he likes being a judge. It would appear, and 
we would hope, he will have a long and healthy life to use his skills 
on the Court. I think those skills are very obvious in the over 2,000 
decisions he has been part of, of the 800 decisions he has written as a 
circuit judge, the appeals judge above other Federal judges and right 
below the Supreme Court.
  So he is someone who comes to this job understanding the job, with a 
significant body of work that the Senate has had plenty of time to look 
at and the President had time to look at before this nomination was 
made. In those 800 opinions Judge Gorsuch has written, he has been 
overturned by the Court he will now sit on, the U.S. Supreme Court, 
exactly 1 time. That is an incredible average of decisionmaking if 1 of 
800 times is the only time a court that is the court of appeals for 
you, the Supreme Court in this case, decides that your decision did not 
meet their view. Now, that does not mean that your decision did not 
meet your view of the law, if you are Judge Gorsuch, or your view of 
the Constitution. Of course, both of those things, after today--his 
view of the law, his view of how you apply the law--will go to the 
Court with him.
  At the White House event where his nomination was announced, Judge 
Gorsuch said that a good judge is not always happy with his opinions. 
Now, what would that mean? I thought that was very reassuring in the 
sense that his job as a judge is to read the law, to look at the 
Constitution, and to determine how the facts of the case meet the 
reality of the law.
  One of the things that makes this a great country to live in, a great 
country to work in, and a great country to take a chance in is the one 
thing you can rely on, hopefully--the rule of law. The one thing you 
can rely on, when good lawyers read the law, is that they all 
understand it to mean the same thing, and you move forward with 
whatever decision you make on that. What Judge Gorsuch was saying was 
that personal opinions are not always satisfied by reading the law. 
What he also, I think, reflects is a view that the law is what the law 
was intended to mean at the time.
  There are ways to change the law. If the country has changed, if the 
world has changed, if circumstances have changed, there are ways to 
change the law, and that is our job. That is not the job of any Federal 
judges anywhere, including on the Supreme Court. Their job is to 
determine what the law was intended to mean when it was written, and 
their job is to determine what the Constitution was intended to mean 
when it was written. Everything the Constitution intended was not what 
we would want to live with today, and that is why we have that long 
list of amendments, starting with the Bill of Rights.
  Even immediately, the people who wrote the Constitution said that we

[[Page 5766]]

have to add some things to this because this does not mean what we 
really want it to mean as it is applied. So you get the Bill of Rights. 
Yet that is not the job of the Court. It is the job of the Congress to 
pass laws, the President to do his job of vetoing and sending those 
laws back or of signing them into law. The Court's job is what Judge 
Gorsuch understands it to be.
  He said in his hearings: I have one client, and that client is the 
law. That client is not either party appearing before the Court. That 
client is not the government. That client is the law. I think he also 
said that judges are not politicians in robes.
  We have a job to do that is different than the job of the Court, and 
I think, as we send Judge Gorsuch to the Court today--to be the 113th 
person in the history of the country to serve on the Court--we send a 
person who has an understanding of what a judge should do. Most 
Americans, when they think about what the Court is supposed to do, 
would clearly understand that is the job of the Court. There are other 
jobs to be done, and they are to be done in other places. I think he 
will be a great addition to the Court with his 10 years of experience 
as a judge and as the judge that other Federal judges' cases are 
appealed to. What great training he has had to get ready for the Court.
  Then, of course, to get this job done, we had to return to the 
traditional standard that has always been the standard in the country, 
until the last few years, as to how Presidential nominations are dealt 
with. It is easy to confuse, I think, the unique role of the Senate in 
its having some barriers that the House does not have with regard to 
advancing legislation. Since, basically, 1789, that has been applied to 
legislation. The Senate has always seen its job as wanting to be sure 
the minority is heard before we move forward. Yet, starting in 1789, 
there was never a supermajority for Presidential nominations, whether 
it was to the Cabinet or the Court.
  It is impossible to find, even before 1968, any case in which the 
Senate came together and said: We are officially going to decide that 
we are not going to have a vote on this judge. Now, not every judge got 
a vote, but when every judge got a vote, a majority of Senators 
determined whether that judge would go on the Court or not. Two members 
of the Court today did not get 60 votes. Clarence Thomas got 52 votes, 
and I think Judge Alito got 58 votes. Two members did not get 60 votes, 
but nobody thought they needed 60 votes because that had never been 
part of the structure of how judges got on the Court.
  I think what we have done this week is return the Senate to, 
essentially, the practice on Presidential nominees that for 214 years 
was the way nominees were always dealt with.
  In 2013, the Senate was controlled by our friends on the other side 
of the aisle. With the roughly 1,250 to 1,300 Presidential nominations, 
they decided that every nomination that was available to them--for 
every judge where there was a vacancy, for every person where the 
President might have had a vacancy to fill--would be determined by a 
simple majority. From that moment on, everybody, I think, should not 
have been surprised, when we eventually had a Supreme Court vacancy--
and this is the first one since that happened--that whoever was in 
charge would extend that same majority to the Supreme Court. Now all 
Presidential nominees are back to where they had been for 214 years.
  I heard the minority leader--I heard my friend Mr. Schumer--talk 
about the importance of our recommitting ourselves to the protections 
for the minority in passing legislation. I think we can do that. 
Frankly, this exercise of refreshing our minds as to how legislation 
has always been handled in that way, I believe, has probably created a 
greater commitment to that--to the legislative supermajority to move 
forward with debate--than we have had for a while.
  I think the leader of our friends on the other side and certainly the 
leader on our side have both said nobody is willing to back down on the 
challenges the Senate faces when we are required to come together to 
get things done.
  The Senate is unique. Essentially, it takes 6 years for every Senator 
to run for election. After some new sense of the direction of the 
country occurs, voters basically have to say again and again and maybe 
a third time: No, we really want to change the way the country has run 
up until now. Quick decisions are not necessarily the best decisions in 
a democracy, and in our democracy, this institution--the Senate--is the 
legislative institution that determines that there is a necessary 
either coming together of the people who are here at the time or for 
voters to say at another time: No, you did not get it the first time, 
and we are sending different people because we really want to make this 
change.
  I think the vote today and the traditions of the country send that 
113th person into the history of America to serve a lifetime term on 
the Court. I am confident the President's nominee and the Senate's 
decision to send that nominee to the Court sends a good person to the 
Court with a good understanding of what the Supreme Court of the United 
States is supposed to be. His job is not to look at the law and try to 
determine what it should have said or to look at the Constitution and 
determine what it should have said but rather to look at the law and 
the Constitution and determine what they say.
  Judge Gorsuch, as well as any person who has ever appeared before the 
Senate to stand available for that job, understands that principle, 
will take that principle to the Court, will work with his colleagues, 
as he has on the Tenth Circuit, in order to rally around what the law 
says and what people can rely on in a country where our freedoms should 
be secure and where we should know that the courts are there to 
determine what is right in any given case, not what the judges think 
would be their ideas of what would be right.
  I look forward to the vote later this morning and to seeing Judge 
Gorsuch be sworn in as a member of the Court sometime in the very near 
future.
  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. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I rise today in support of the 
nomination and the confirmation of Judge Neil Gorsuch to the U.S. 
Supreme Court. I do so with mixed emotions because I believe that the 
actions taken in order to achieve this position will have lasting 
effects that are unfortunate on this body as far as comity is 
concerned, but also the confirmation of future judges of the Supreme 
Court by 51 votes. Rather than go back through the history of what 
former Majority Leader Reid did in regard to judges and what we are 
doing now, I am very concerned about the future which will then, with 
only a 51-vote majority required, lead to polarization of the nominees 
as far as their philosophies are concerned when the majority does not 
have to consider the concerns and the votes of the minority.
  With my focus on Democrats' unprecedented filibuster of Judge 
Gorsuch's nomination to the U.S. Supreme Court and the Senate's 
regrettable action yesterday to invoke the nuclear option on Supreme 
Court nominees, I have been remiss in not taking the time to describe 
for the American people why I support strongly and without 
qualification confirming Judge Gorsuch to serve as an Associate Justice 
of the U.S. Supreme Court.
  Why I do so is very simple. Rarely has this body seen a nominee to 
the Supreme Court so well qualified, so skilled, with such command of 
constitutional jurisprudence, with such an established record of 
independence and such judicial temperament as Judge Gorsuch. It is, in 
fact, exactly for these very reasons that this very body unanimously 
voted in 2006 to confirm this very judge--this same judge--to the U.S. 
Court of Appeals for the Tenth Circuit. Yet, now, the other side would 
have the American people believe that this very same judge lies firmly 
outside the mainstream and is, therefore,

[[Page 5767]]

otherwise unacceptable to serve in the Nation's highest Court. Even by 
the standards of this body, this sophistry is breathtaking.
  Let me take a moment to join the chorus of support of my colleagues 
and recount why Judge Gorsuch is so deserving of this body's support 
for confirmation to the Supreme Court.
  First and foremost, Judge Gorsuch is a world-class judge. On the U.S. 
Appellate Court for the Tenth Circuit, Judge Gorsuch has maintained the 
lowest rating of other judges dissenting from his opinion. Indeed, 
according to the Congressional Research Service, only 1.5 percent of 
Judge Gorsuch's majority opinions were accompanied by a dissent--the 
lowest of any judge in that study. Notably, the U.S. Supreme Court has 
never overruled any of Judge Gorsuch's opinions--not a single one. 
Furthermore, in the more than 2,700 cases Judge Gorsuch participated 
in, 97 percent of them were decided unanimously, and Judge Gorsuch was 
in the majority 99 percent of the time. These are facts. In addition, 
the U.S. Supreme Court overruled an opinion where Judge Gorsuch sat on 
a panel only one time.
  While serving on that court, Judge Gorsuch built an exceptional 
reputation for his fair-minded, articulate, and sharp intellect. 
Stanford Professor Michael McConnell, who served with Judge Gorsuch on 
the Tenth Circuit, characterized Judge Gorsuch as ``an independent 
thinker, never a party liner'' and ``one of the best writers in the 
judiciary today. . . . [H]e sets forth all positions fairly and gives 
real reasons--not just conclusions--for siding with one and rejecting 
the other.''
  Second, Judge Gorsuch has one of the most impressive professional and 
academic backgrounds this body has ever seen. He graduated from 
Columbia cum laude and Phi Beta Kappa and cum laude from Harvard Law 
School. He also obtained a doctorate degree in philosophy from Oxford 
University and served as a Truman and Marshall Scholar. Additionally, 
he served for U.S. Circuit Court Judge David Sentelle, Supreme Court 
Justices Byron White and Anthony Kennedy. Judge Gorsuch also served as 
Principal Deputy Assistant Attorney General at the Department of 
Justice before serving as a judge on the U.S. Court of Appeals for the 
Tenth Circuit.
  For all of these achievements, Judge Gorsuch has earned the highest 
possible rating from a group Minority Leader Schumer calls the ``gold 
standard'' for evaluating judicial nominations.
  Finally, Judge Gorsuch has established himself as an exceptional 
nominee. Indeed, Judge Gorsuch's appearance before the Senate Judiciary 
Committee was extraordinary. In the course of the three rounds of 
questioning by that committee, each Member had the opportunity to quiz 
Judge Gorsuch for over an hour each on just about every aspect of 
constitutional law. In answering about 1,200 questions from the panel, 
he demonstrated almost peerless mastery over that field.
  Furthermore, Judge Gorsuch's nomination, with the help of my friend 
and former member of this body Kelly Ayotte, was exemplary in its 
transparency. Before his hearing, and in response to the Judiciary 
Committee's requests, Judge Gorsuch provided over 70 pages of written 
answers about his personal record and over 75,000 pages of documents, 
including speeches, case briefs, and opinions--which, by the way, makes 
you wonder why he wanted the job. Anyway, White House archives and the 
Department of Justice similarly produced over 180,000 pages of 
documents related to Judge Gorsuch's time at the DOJ. The Department of 
Justice, moreover, provided access to reams of documents that would 
ordinarily be subject to claims of privilege. However, in the spirit of 
cooperation and in the hope of truly bipartisan consideration, the 
Department of Justice provided my friends on the other side access to 
these records anyway.
  Additionally, in response to almost 300 separate questions posed by 
Democrats on the committee, Judge Gorsuch provided another 70 pages of 
written responses, and did so within a week of receiving them, to give 
my friends sufficient time to review the answers before the committee 
voted for consideration of his nomination.
  Despite all of that I just said--despite everything that I just said, 
my friends on the other side would have the American people believe 
that Judge Gorsuch lies firmly out of the mainstream and hopelessly 
obfuscated his judicial philosophy.
  My friends, when you do that with an individual that qualified, you 
lose credibility.
  For all of the reasons I just went through, that is simply untrue. 
Moreover, when many of my friends on the other side had the opportunity 
to question Judge Gorsuch over the 20 hours they had with him during 
his confirmation hearing, they contented themselves with asking Judge 
Gorsuch for his personal opinions on issues that could come before him 
if he is confirmed to the Court. In addition, they passed hypotheticals 
they knew he, for ethical and prudential reasons, could not possibly be 
expected to answer.
  Here is some straight talk. The real reason most of my friends on the 
other side opposed Judge Gorsuch's confirmation is that President Trump 
nominated him--because their base of support and related special 
interests on the far left have been upset about President Trump's 
election in November. The fact is that if most of my friends on the 
other side of the aisle are opposed to this nominee, they will oppose 
any nominee put forward by this President, or any Republican President, 
for that matter.
  The record is clear. Judge Gorsuch's qualifications, knowledge, 
skill, judicial temperament, and record of independence are truly 
exceptional. For these reasons, he has earned my strong and unqualified 
support for his confirmation to the Nation's highest Court.
  Could I just make one additional comment, and I know my friend from 
Utah is waiting. When President Obama and Presidents before him were 
elected from both parties, it was pretty much the standard procedure 
here in the U.S. Senate to give the incoming President the benefit of 
the doubt. In other words, the American people, by electing a President 
of the United States, had also basically endorsed his responsibility 
and his right to nominate judges to the courts. That is just sort of a 
given, because the American people spoke in their selection of the 
President of the United States, taking into consideration those 
responsibilities the President would have. So, therefore, for those 
reasons, I voted for most of President Obama's nominees, as I did most 
of President Clinton's nominees. Now we are in a position where we are 
so polarized that even a man of the qualifications of Judge Gorsuch is 
now opposed by our friends on the other side of the aisle.
  I say to my friends on the other side of the aisle, and I say to my 
friends on this side of the aisle: That is not the way the Senate was 
designed to work. The Senate was designed for us to communicate, for us 
to work together, for us to understand the results and repercussions of 
a free and fair election. It is about time we sat down together and 
tried to do some things for the American people in a bipartisan 
fashion. This near-hysterical opposition that I see from my friends on 
the other side of the aisle does not bode well for what we know we need 
to do.
  Madam President, I recognize the presence of the distinguished 
Senator from Utah, and I say ``distinguished'' because both he and I 
are of advanced age.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I really appreciate my colleague for his 
comments. He is one of the great Senators here, and we all pay 
attention to what he has to say, especially on foreign policy and 
military affairs, but also on so many other things as well. People 
ought to be listening to what he is saying with regard to this 
judgeship. I have great respect for Senator McCain and always will. He 
is one of the truly great Senators in this body. I just wish my 
colleagues on the other side would pay a little more attention to what 
he is having to say here today. So I thank the Senator.

[[Page 5768]]




                      Nomination of Heather Wilson

  Madam President, I rise today in strong support of the confirmation 
of Dr. Heather Wilson to be the 24th Secretary of the Air Force.
  I have had the privilege of knowing Dr. Wilson since her election to 
Congress, where she distinguished herself as a member of the House 
Intelligence Committee. In my interactions with Dr. Wilson in the 
Intelligence Committee, it quickly became apparent that she is a person 
of great intellect and exceptional character. But this should come as 
no surprise since she has always achieved a level of excellence in each 
of her endeavors.
  Dr. Wilson knew success from an early age. She made history as one of 
the first female graduates of the Air Force Academy. At the academy, 
she thrived as a student, eventually earning a Rhodes scholarship to 
attend Oxford University, where she earned a Ph.D. in international 
relations.
  Dr. Wilson then wrote a well-received book titled ``International Law 
and the Use of Force by National Liberation Movements.'' As a lawyer, I 
was particularly impressed by Dr. Wilson's in-depth analysis of 
international law. What is all the more impressive is that the book was 
published as she was serving as Director of Defense Policy and Arms 
Control for the National Security Council.
  Dr. Wilson's commitment to national security was evident when she 
served in the House of Representatives from 1998 to 2009. When she left 
the House after more than a decade of service, Congress' loss was South 
Dakota's gain. In 2013, she became the president of the South Dakota 
School of Mines and Technology. There, she showed extraordinary skill 
in leading a large institution.
  In sum, Dr. Heather Wilson is a person of great intellect, strong 
management skills, and superlative character. I believe she will be an 
outstanding Secretary of the Air Force, which is why I strongly 
encourage my colleagues to confirm her without delay.
  Confirming Dr. Wilson with dispatch is necessary to address the many 
challenges currently facing our military. After all, there are 
fundamental issues regarding the readiness of our armed services--
especially the Air Force--which must be confronted and resolved.
  Although the lack of proper investment and training is evident in 
each of the military departments, I am especially concerned about the 
Air Force because of its unique missions and responsibilities. Two 
words describe each set of problems facing our Air Force: ``too few''--
too few aircraft; too few personnel, including pilots; too few flight 
training hours.
  Regarding the shortage of aircraft, as the Air Force Vice Chief of 
Staff recently testified before the SASC Readiness Subcommittee, less 
than 50 percent of the services' aircraft are ready to perform all of 
the combat missions to which they are assigned. The average age of the 
service's fighter aircraft is 27 years old. Many other aircraft, 
including the B-52 and the KC-135, have decades of wear and tear. Even 
more alarming, the aging aircraft of the 1950s and 1960s will be 
retained in the force for the foreseeable future.
  The current number of 55 fighter squadrons falls short of the number 
needed to fulfill our warfighters' requirements. As Dr. Wilson 
testified during her confirmation hearing, ``the Air Force is not fully 
ready to fight against a near-peer competitor,'' such as China or 
Russia--too few aircraft, indeed.
  Of course, the number of aircraft is just one of the multiple issues 
facing the Air Force. We also have too few personnel, including pilots. 
Our aircraft--no matter how advanced--cannot fly without experienced 
and highly trained maintenance personnel, and we need 3,400 more before 
the service can effectively accomplish its mission.
  We are also running short of the men and women who fly these 
aircraft. In recent testimony before the Airland Subcommittee, senior 
Air Force officers testified that the service had a deficit of 1,555 
pilots. Of that number, we require more than 750 additional fighter 
pilots. Further, there is concern that those pilots who remain are 
receiving very few flight training hours--much less than needed.
  These are enormous challenges. But despite the Herculean task in 
front of us, I have no doubt Dr. Wilson will develop the strategies and 
policies required to restore our Air Force to a full state of 
readiness. I hope the Senate will speed the confirmation of Dr. Wilson 
to become the 24th Secretary of Air Force.
  Madam President, I am very concerned with the way Neil Gorsuch has 
been treated. We could not have a finer person, a more ready person, a 
more knowledgeable person, a more legal expert-type of a person than 
Neil Gorsuch for this very, very important calling on the Supreme 
Court.
  It is amazing to me how some of my colleagues on the other side have 
ignored all of the facts, all of the evidence, all of the experience, 
all of the goodness of this man. I hope they will not vote against him, 
but it looks to me as though many of them are going to vote against 
him. If you are voting against Neil Gorsuch, who can you support? Are 
you just going to support people who do your bidding? Or are you going 
to support people who really can do the Nation's bidding, do the things 
that this country needs?
  Neil Gorsuch is that type of a person. He has that kind of an 
ability. He has that kind of experience. He is a terrific human being. 
Whether you agree with him or disagree with him, you walk away saying: 
``Well, he certainly makes a lot of good points.'' You walk away 
saying: I like that guy. He is somebody I can work with. He is somebody 
that really loves this country. He is somebody who sets an exemplary 
example in every way.
  I have to say that, in my years of service here, I have seen a number 
of Supreme Court nominations, and I have seen a number of people put on 
the Court, and they have all been exceptional people. But there is none 
of them who exceeds Neil Gorsuch. He is that good. It is kind of a 
shame that we can't, in a bipartisan way, support this selection.
  I suspect that there is more to it than Judge Gorsuch. I think our 
colleagues on the other side know that this early in President Trump's 
reign as President of the United States, he might very well have 
another one, two, or even three or four, nominees to the Court. I don't 
blame my colleagues on the other side for being concerned, because--
let's face it--he is unlikely to put people on the Court with whom they 
agree.
  On the other hand, he is very likely to put people on the Court who 
are great lawyers, who have had great experience, who will bring great 
distinction to the Court, and who will, without telling us how they are 
going to vote and how they are going to rule, do the job that we all 
count on the Supreme Court doing.
  The Supreme Court, to me, is a sacred institution. We have had great 
Justices on both sides--on all sides, as a matter of fact. We have had 
great Democrat Justices. We have had great Republican Justices. No one 
knows how great the nominee is going to be until that nominee actually 
serves on the Court and does the job that is so difficult to do as a 
member of the U.S. Supreme Court. I have every confidence Neil Gorsuch 
will be one of the all-time great Justices for that Court. He deserves 
confirmation. He deserves overwhelming confirmation. If we weren't in 
such a disputative mood around here, if we didn't have so much problems 
with each other, he would be an easy person to support.
  So I hope we can put our politics aside and look at the man, look at 
his experience, look at his ability, look at his genius, look at his 
decency, and look at the fact that he agreed with his colleagues on 99 
percent of the cases tried before the Tenth Circuit Court of Appeals--
and most of those colleagues were Democrats. Look at these types of 
things, and say: My gosh, what are we about here? Has it just become a 
politicized exercise every time we have a Supreme Court nomination, one 
way or the other?
  I have to admit that it looked as though Hillary Clinton was going to 
win. Senator McConnell decided that we should not put Merrick Garland 
on

[[Page 5769]]

during a Presidential election, which I think was a good decision. It 
was a sincere decision. It looked as though, if Hillary Clinton was 
going to win, she might very well put a much more liberal judge on the 
Court than Merrick Garland. The fact of the matter is, Senator 
McConnell knew the odds were against Republicans winning the Presidency 
this last election.
  To some, it was kind of miraculous for Donald Trump to win. It wasn't 
miraculous to me, because last May Donald Trump called me and asked me 
to support him. I said: You don't want me. I said: I am the kiss of 
death.
  He laughed and he said: What do you mean the kiss of death?
  Well, I supported Jeb Bush, and he went down to defeat. Then I 
supported Marco Rubio, my colleague in the Senate, and he had to 
withdraw. So I am the kiss of death.
  He said: I want you, anyway.
  So I became one of two Senators who supported this now-President of 
the United States and was gratified to see him win that election. I 
thought he could. Deep down, I knew there was a great chance because I 
was going all over the country and I found that people were not willing 
to say whom they were for. I knew darn well they were for Trump. They 
just didn't want to admit it--especially Democrats. But he got an 
overwhelming number of blue-collar Democrats--I understand them; I 
learned a trade as a young man--who voted for him.
  When I say I learned a trade, I was born not with the wealth of some 
of our colleagues. I was born in what some people would call poverty 
today. We didn't think we were poverty-stricken. My parents were very 
solid, decent, honorable people, but they were poor--frankly, poor in 
the sense of monetary value. But they were good, honest, decent people, 
and I feel very blessed to have been raised by them.
  All I can say is this. To allow the selection of the Supreme Court 
nominee to come down to a wide vote against that nominee with the 
qualities of Neil Gorsuch--if that is what my colleagues on the other 
side, in their wisdom, decide to do, I think it is a disgrace. I think 
it flies in the face of years and years of people selected for the 
Court. Now, we all can differ. Everybody has that right. All I can say 
is I just wish we were more together as a body.
  I have great respect for my Democratic colleagues, as well as my 
Republican colleagues. This is the greatest deliberative body in the 
world. Despite our difficulties and our differences, we do a lot of 
really good things for this country. And we do it at its best in a 
bipartisan way when we can.
  Madam President, 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. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                 Syria

  Mr. CORNYN. Madam President, I would like to start briefly by 
mentioning the horrific chemical attack on innocent civilians in Syria 
earlier this week. It was nothing short of evil. I stand shoulder to 
shoulder with the administration in condemning this brutality. Again, 
we see Bashar al-Assad crossing a line--a line drawn and then ignored 
by the Obama administration.
  The United States and the world community simply can't stand idly 
while Syria continues crimes against humanity, again, under Russian 
protection. That is why last night the administration responded quickly 
and proportionally. I commend the President and his national security 
team for acting decisively and sending a clear message to Assad and our 
allies. I am sure it was a message that was not missed by the leaders 
of the Iranian Government, the Russian Federation, and North Korea.
  I agree with Ambassador Haley that Russia's obstructionism at the 
U.N. has enabled Assad and prevented international action, resulting in 
at least 400,000 Syrians dead in this civil war and millions of others 
displaced as refugees, not only internally but externally as well. 
Going forward, I stand ready to work with the President and his 
administration on a unified strategy to defeat Assad's barbarism and 
work toward greater stability in Syria and throughout the region.
  Madam President, on another subject, as we all know, here in about 20 
minutes, we will start the vote to confirm Neil Gorsuch as the next 
Justice of the Supreme Court. Over the last few weeks, our colleagues 
and I have--and the entire country, as a matter of fact--have gotten to 
know Judge Neil Gorsuch not only as a judge but as a man. He is a good 
man with superb qualifications and incredible integrity.
  A Colorado native, Judge Gorsuch has served on the Denver-based Tenth 
Circuit Court of Appeals for about 10 years. He is known for his sharp 
intellect, his brilliant writing, and his faithful interpretation of 
the Constitution and laws passed by Congress. He is, in short, a 
distinguished jurist with an impeccable legal and academic record.
  In addition to his decade on the bench, his professional experience 
includes years practicing in a private law firm, prestigious 
clerkships, including the Supreme Court of the United States under two 
separate Justices, and service in the Department of Justice.
  It is simply undeniable that Judge Gorsuch is a qualified, high-
caliber nominee. I have no doubt that he will serve our Nation well on 
the Supreme Court. But of course, in spite of all of this--his sterling 
background, his proven character, his broad bipartisan support--we have 
seen an unprecedented attack on this good judge and this good man in 
the form of a partisan political filibuster, the first ever lodged 
against a Supreme Court nominee. Yesterday, our Democratic colleagues 
would have prevented the up-or-down vote we are getting ready to have 
here starting at 11:30. For what? Well, it certainly was not because of 
the judge, his character, his qualifications, or his background and 
experience; it was merely because so many of our colleagues across the 
aisle simply have not gotten over the fact that Donald Trump won the 
Presidential election and Hillary Clinton did not.
  Before Judge Gorsuch was nominated, the minority leader, our 
colleague Senator Schumer, said they needed a ``mainstream nominee.'' 
After President Trump nominated a mainstream nominee, Democrats then 
looked for other ways to make him out to be some sort of extremist or 
radical. But they failed because there is simply no evidence to justify 
those kinds of characterizations.
  For one, judicial experts spanning the political spectrum, including 
President Obama's former Solicitor General, voiced their support.
  Second, they had to deal with the facts of his record. During his 
time on the Tenth Circuit, Judge Gorsuch was involved in thousands of 
decisions--2,700 to be exact. The vast majority of those panel 
decisions made by at least three judges--sometimes more on the panel--
97 percent of them were unanimous. So you would basically have to 
slander the reputations of all of those other judges with whom the 
judge agreed to claim that he is some sort of out-of-the-mainstream 
extremist. That is truly an impressive record for a judge in a multi-
judge court like the Denver-based Tenth Circuit Court of Appeals. It 
simply rebuts any picture our friends across the aisle have attempted 
to paint of him as some kind of extremist or radical.
  I would ask our friends this question: If Judge Gorsuch does not fit 
the bill for a qualified, mainstream nominee, then is there any nominee 
from this President or any other Republican President who will meet the 
Democrat's arbitrary, flimsy standard?
  Time and time again, our friends across the aisle failed to make any 
intellectually honest argument against this nominee. Still, they are 
determined to block him. That brought us to the cloture vote yesterday 
and the last-ditch effort to block Judge Gorsuch. They did not want to 
even give him the up-or-down vote we are getting ready to have here in 
a few minutes. Instead, they wanted to kill his nomination by simply 
refusing an

[[Page 5770]]

up-or-down vote and moving his nomination forward.
  In our Nation's entire history, before yesterday there had only been 
four cloture votes for Supreme Court nominees--only four. None of them 
had been cast as a partisan filibuster determined to try to block the 
nomination--until yesterday.
  Still, the minority leader, cheered on by the extreme groups on the 
left, barreled this Chamber to the first-ever partisan filibuster of a 
Supreme Court nominee, following a regrettable and recent tradition of 
Democratic obstructionism when it came to Republican judicial nominees.
  Now that there is a Republican White House, that is what they want to 
do again--obstruct. This is a wholly concocted method the Democrats 
started back when George W. Bush was President to deny a Republican 
President an opportunity to nominate the person of his choice, 
confirmed by a majority vote in the Senate.
  Before 2000, before Senator Schumer and a number of liberal legal 
activists decided they wanted to raise the threshold for confirmation 
to 60 votes, instead of what the Constitution requires, which is a 
majority vote. No one would ever have dreamed that the Constitution 
would have allowed for a 60-vote requirement, rather than an up-or-down 
vote.
  It is not that our friends across the aisle truly oppose Judge 
Gorsuch. The fact is, they oppose President Trump. That is what this is 
all about.
  This vote isn't actually about President Trump. It is about the man 
we have all learned so much about, Judge Neil Gorsuch, who has a record 
of faithfully interpreting the law, a man who has proved himself to 
possess an independent judicial mind, who simply follows the law 
wherever it may lead. He is someone who has won bipartisan approval.
  This vote is about delivering our promise. The Republicans have 
promised to let the American people's voice be heard in deciding who 
they would choose as President to select the next Supreme Court 
Justice. The American people did that. They chose President Trump, and 
he chose Judge Gorsuch.
  If Hillary Clinton had been elected President today, I have no doubt 
that her choice for the Supreme Court would be confirmed by a majority 
vote in the same U.S. Senate.
  Now it is time that we deliver on the promise we made to the American 
people and confirm Judge Neil Gorsuch to the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I hadn't planned to speak this morning, 
but when my friend from Texas decided to give his version of history, I 
thought: Well, I ought to give my version. It is slightly different.
  Justice Antonin Scalia passed away in February of last year. 
President Barack Obama, the President of the United States of America, 
had a constitutional responsibility under article II, section 2 to 
nominate a person to fill the vacancy on the Supreme Court, as every 
other President had. And he did.
  He came up with the name Merrick Garland, the Chief Judge on the DC 
Circuit Court of Appeals, a man who is widely respected, judged 
unanimously ``well qualified'' by the American Bar Association. 
President Obama submitted his name to this Congress, to the Senate, a 
Senate that has a Republican majority, led by Senator Mitch McConnell 
of Kentucky.
  Senator McConnell and the Republican Senators did something that had 
never happened in the history of this Chamber--not once. They denied 
President Obama's nominee the opportunity for a hearing and a vote. In 
fact, Senator McConnell went further and said: I won't even meet with 
the man.
  It had never happened before.
  You say to yourself: Well, come on. This isn't beanbag. You are in 
Washington. This is major league politics. This sort of thing must 
happen all the time. Never.
  In fact, if you go back not that far in history, to 1988, in the last 
year of President Ronald Reagan's Presidency--his fourth year of his 
second term, some call it the lameduck year--there was a vacancy on the 
Supreme Court.
  Republican President Ronald Reagan sent the name Anthony Kennedy to a 
Democratically controlled Senate, which had the power to do the same 
thing Senator McConnell did: Deny a hearing, deny a vote.
  Well, what did the Democrats do? We gave Justice Kennedy a hearing, a 
vote, and sent him to fill the vacancy on the Supreme Court.
  Under Senator McConnell, the Republicans refused Merrick Garland the 
same opportunity, and they said to President Obama: You are in your 
fourth year. You are a lameduck. Your choice for the Supreme Court 
really doesn't count.
  But there was more to it. Really, the strategy was based on the 
premise and possibility that a Republican would be elected in this last 
November election, and if so, that Republican President could fill the 
vacancy on the Supreme Court.
  Well, that is exactly what happened. The election of Donald Trump 
gave him the opportunity to fill the vacancy of Antonin Scalia, a 
vacancy that should have been filled, I believe, by Merrick Garland, 
President Obama's nominee.
  That is what led up to the vote yesterday, but there was more.
  Where did the name Neil Gorsuch come from? It is true that he served 
on the Tenth Circuit for 10 years. He had been approved by the Senate. 
He certainly had a strong resume. But how did he get on the finalist 
list?
  Well, most of the time you never know. Presidents don't always 
disclose how they come up with names. In this case, it was very open 
because, during the course of his campaign, Donald Trump, the 
candidate, listed 21 names of people whom he would appoint to the U.S. 
Supreme Court. On that list of names, Neil Gorsuch of Colorado.
  How did that name make the list? Well, we know because President 
Trump told us. He was the choice of the Federalist Society and the 
Heritage Foundation. If you know these two organizations, you know they 
are Republican advocacy groups, very conservative groups, and they were 
going to pick the nominees who were approved by them and submit them to 
Donald Trump, which he then publicized. We know that because, at the 
end of the day, Donald Trump thanked the Federalist Society for 
nominating Judge Gorsuch. That is how the name came to us.
  I sat through the hearings as a member of the Senate Judiciary 
Committee, and I will tell you that most Supreme Court nominees don't 
go out of their way to volunteer information. They try to be 
respectful, but they don't try to say much of anything. They don't want 
to get in trouble either as judges or as candidates to be a Justice on 
the U.S. Supreme Court. So there were gaps in his testimony and 
troubling questions raised about him.
  I don't want to dwell on him so much as I want to dwell on this 
process. What happened yesterday on the floor of the Senate was 
unfortunate. Since I have been in the Senate, the last four Justices on 
the Supreme Court--two nominated by President Obama, Sonia Sotomayor 
and Elena Kagan, and two nominated by George W. Bush, John Roberts as 
well as Justice Alito--all received 60 votes during the course of their 
consideration. That is not, as the Senator from Texas alluded, written 
in the law per se, but it was written--until yesterday--in the rules of 
the Senate. You needed 60 votes to overcome the possibility of a 
filibuster and to file cloture.
  Well, that rule was changed yesterday to a simple majority. That is 
an unfortunate occurrence. A lifetime appointment to the highest Court 
in the land should be more than just a bare majority vote, as far as I 
am concerned, and, historically, with very few exceptions, that has 
been the case.
  That is not the case here. We found yesterday that the Republicans 
voted for a change in rules, which was under the power of the majority 
to do--a change in the rules, which lowered the standard for this judge 
for the first time officially in at least a century to a mere majority 
vote. That is what he

[[Page 5771]]

received, and that is what brings his nomination to the floor today to 
be considered for the Supreme Court.
  At the end of yesterday's session, when the rule was changed, some 
Senators were engaged in high fives on the other side of the aisle. I 
am not sure why. I don't think it was a time for any winning 
celebration. I think it was an unfortunate moment.
  The question is, Where will we go from here? We know what the outcome 
of the vote will be on Judge Gorsuch this afternoon. That is 
preordained by the rule struggles we went through yesterday. But where 
does the Senate go? Where should we go? Well, I hope we will have the 
good sense to restore the 60-vote margin when it comes to future 
Supreme Court nominees.
  It may be that Justice Gorsuch has an asterisk by his name as the 
only one to have been officially approved with cloture set at a 
majority vote, but I am hoping, even if he reaches the Supreme Court, 
that will not hold him back from serving this Nation well. I know he 
has told us over and over again that is exactly what he wants to do.
  But I hope the Senate will restore the standard of 60 votes necessary 
for the Supreme Court. I really believe serving as a Supreme Court 
Justice is an extraordinary opportunity for a person to serve this 
Nation, an extraordinary responsibility, and we should take it very 
seriously. It shouldn't be a majority decision; it should be a 60-vote 
decision. I hope we get back to that very soon.
  Secondly, I hope the Senate will not be derailed by this Supreme 
Court nomination having happened so early in the session. This is a 
great institution. I have given a big part of my life to it and look 
forward to serving more in the Senate--not as long as the Senator from 
Iowa, who I think has retired the trophy in his State for his service 
in the Senate--but I do believe this is a great institution.
  An example is that the Senator from Iowa and I are of opposite 
political faiths. He and I have worked together on some important 
issues in the past, and we want to work together in the future. I think 
we can. If we can restore what you and I remember as the glory days of 
this body, it is in the best interest of this Nation.
  So beyond this Supreme Court nomination, let's hope we can all come 
together to make that happen.
  I see my colleagues filing in. I know they are anxious to vote. I am 
not going to hold the Chamber. I am just going to say that I thank the 
Presiding Officer and my friend, the chairman of the Senate Judiciary 
Committee. I look forward to the vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, we are about to vote on the nomination 
of Judge Gorsuch, so I would like to say to my colleagues why I am so 
pleased that we will soon be referring to him as ``Justice Gorsuch.''
  I opened our Judiciary Committee hearing with this:

       One of Justice Scalia's best opinions begins with this 
     declaration: it is the ``proud boast of our democracy that we 
     have a government of laws and not of men. . . . Without a 
     secure structure of separated powers, our Bill of Rights 
     would be worthless.''

  The separation of powers in our Constitution is a guardian of our 
liberty. Judge Gorsuch understands that. His deep understanding of the 
separation of powers enlivens his opinions.
  By faithfully enforcing the boundaries among the branches of 
government and the power of the Federal Government in our lives, this 
Justice will ensure that the law protects our liberties.
  Here is the other thing that is important about a judge who respects 
the separation of powers: We know he will be independent. He told us 
that he is his own man, that no person speaks for him. He is not 
beholden to the President who appointed him. His testimony shows that 
he is not beholden to us in the Congress either. He wouldn't compromise 
his independence to win confirmation votes. He passed the test.
  This is a man of integrity, and his qualifications for the bench are 
exceptional. You know the story: bachelor's from Columbia University, 
Harvard Law School, doctorate from Oxford University, partnership at a 
prestigious law firm, and high-level Justice Department service for the 
people of our country, but most importantly, a decade-long record of 
faithfully applying the law on the Federal bench in 2,700 cases as a 
member of the Tenth Circuit Court of Appeals.
  Let me sum up this way: This brilliant, honest, humble man is a 
judge's judge, and he will make a superb Justice.
  I yield the floor.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The VICE PRESIDENT. Without objection, it is so ordered.
  Mr. DURBIN. I yield back the remainder of our time.
  I withhold that request until the arrival of the leader.
  I suggest the absence of a quorum.
  The VICE PRESIDENT. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The VICE PRESIDENT. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I yield back the remainder of time on this 
side.
  The VICE PRESIDENT. Without objection, all time is yielded back.
  The question is, Will the Senate advise and consent to the Gorsuch 
nomination?
  Mr. McCONNELL. I ask for the yeas and nays.
  The VICE PRESIDENT. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Georgia (Mr. Isakson).
  Further, if present and voting, the Senator from Georgia (Mr. 
Isakson) would have voted ``yea.''
  The VICE PRESIDENT. As a reminder, expressions of approval or 
disapproval are not permitted from the gallery.
  Are there any other Senators in the Chamber desiring to vote or 
change their vote?
  The result was announced--yeas 54, nays 45, as follows:

                      [Rollcall Vote No. 111 Ex.]

                                YEAS--54

     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
     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

                             NOT VOTING--1

       
     Isakson
       
  The nomination was confirmed.
  The VICE PRESIDENT. The majority leader.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I 
move to table the motion to reconsider.
  The VICE PRESIDENT. The question is on agreeing to the motion.
  The motion was agreed to.

[[Page 5772]]



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