E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 115 CONGRESS, FIRST SESSION

Vol. 163 WASHINGTON, WEDNESDAY, APRIL 5, 2017 No. 58—Part II Senate (Legislative day of Tuesday, April 4, 2017)

EXECUTIVE CALENDAR—Continued lated to the preparation of that tissue. cept their ruling. But did Judge Mr. MERKLEY. Let’s turn to We could have a whole debate, and we Gorsuch accept the ruling? No. He dis- Planned Parenthood Association of should bring in the medical profes- sented from the court’s denial and Utah v. Herbert. In August of 2015, sionals to understand the details. But wanted to grant an en banc review, not Gary Herbert, Utah’s Republican Gov- in this case, it is irrelevant to have at the behest of any litigant, just that ernor, ordered the State to strip that debate because Planned Parent- Judge Gorsuch didn’t like the outcome $272,000 in Federal funding from the hood in Utah wasn’t part of the fetal of the case and wanted to have a full Planned Parenthood Association of tissue research organization. So we panel in hopes of getting the decision Utah in response to a series of highly don’t have to argue over whether fees that would defer to Governor Herbert, edited videos that alleged that Planned they have charged for repairing the tis- who wasn’t seeking any review because Parenthood clinics were selling fetal sue were fair or unfair because they he wanted to strip the organization’s tissue, even though Utah’s clinics were didn’t repair anything. This was all funding, even though the organization not in the video then. about something else, which was the had done nothing wrong and didn’t par- By the way, those videos had been Governor’s decision to launch an at- ticipate in the program at all. In other found to be completely doctored, com- tack on Planned Parenthood, punish words, Judge Gorsuch was willing to pletely inaccurate, completely mis- Planned Parenthood for its constitu- ignore court practice and custom and a leading. But despite the fact that the tionally protected advocacy. whole set of facts that showed that the videos were not authentic and despite This issue is one which I am sure we whole decision the Governor made was the fact that they didn’t have any will be talking about for years to come. on the wrong basis—wrong basis on the bearing in Utah, Governor Herbert But in the context of the law, a three- facts because the videos were doctored, stood by his ruling to carve out and judge panel of the Tenth Circuit grant- wrong basis on the facts because it take away funding from Planned Par- ed a preliminary injunction on Planned wasn’t even about the State of Utah, enthood. So Utah’s Planned Parent- Parenthood, concluding that Utah’s wrong basis on the facts because hood Association filed for a restraining Planned Parenthood was operating Planned Parenthood of Utah didn’t par- order against the State, saying that lawfully and that the Governor’s per- ticipate in this research program— the State was not acting justly, so they sonal opposition to abortion as a moti- wrong on every level. asked the Court to protect them from vation for blocking Federal funds and But Judge Gorsuch wanted to ensure unjust action. targeting the health organization did that he could show a case backing In spite of his continued claim that violate its constitutional rights. Utah’s Republican Governor that stripping the funding was not to punish So when this was decided, neither eliminated funding for Planned Parent- the organization for its stance on abor- Planned Parenthood nor the State of hood. That is judicial activism. That is tion but in response to the videos—the Utah sought to have the Tenth Circuit rewriting the law. That is not a judge; doctored, inauthentic, discredited vid- rehear the case en banc, which means that is a legislator. A person who eos—the Governor eventually admit- all the judges that serve on the Tenth wants to rewrite the law in the frozen ted, while responding to Planned Par- Circuit. So you had a three-judge panel trucker case, a person who wants to re- enthood’s motion for a preliminary in- that made a decision. Neither side of write the law in the autistic child case, junction, that defense of the videos in- the case—they were like, OK, we are a person who wants to rewrite the law volved different affiliates—not the ones done with this. We are done with this. in the Planned Parenthood case should in Utah—that there was not even an The practice wasn’t even relevant to run for office and legislate, not use the accusation that Planned Parenthood in the association in Utah, not just be- courts as your personal strategy for ju- Utah had broken the law—not even an cause the videos were from different dicial activism; that is, to rewrite the accusation. The organization didn’t States, not just because the videos law, the opposite of what the law says. participate in programs that provided were doctored and basically illegit- In the majority’s opinion, Judge fetal tissue for research, so it was com- imate, but also because they were Mary Briscoe wrote separately to high- pletely disconnected from the oper- about a fetal research program that light the troubling nature of Gorsuch’s ation of Planned Parenthood in that the organization in Utah didn’t partici- dissent. She noted first how ‘‘unusual’’ State. pate in. and ‘‘extraordinary’’—those are words The background of this is that med- So from every possible direction, that she put in—it would be for the ical institutions have utilized fetal tis- both sides said: Peace. The judge has Tenth Circuit, on its own motion, to sue and there have been charges re- ruled, and we understand why. We ac- order an en banc review when neither

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S2257

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So why not just bring up cause there is an enormous cloud over this litigation and the panel decision the judge and defeat him? the legitimacy of the President, and at several turns.’’ The answer is in the quotation that I there are investigations under way, Politics should be in this room, not read earlier from my colleague from and we need to get to the bottom of it taking your politics and trying to Utah, who anticipated that if only the before a life-tenured position is filled change the law through judicial activ- President would nominate somebody by this President; and, three, a judge ism on the court by turning the law up- like Merrick Garland, it would be a who repeatedly has engaged in rewrit- side down and saying it means X when great thing, and we would see a quick ing the law to find for the powerful it clearly states Y. confirmation. Merrick Garland was over the people, even when the law was An unidentified judge—we are not that acceptable. He was that down the very clear—even to the point that the sure who—requested that judges be middle. He was without the kinds of entire Supreme Court overturned him polled. Again, that would be an un- issues that raised concerns. That was on his effort to say doing merely more usual situation, apparently, in this Merrick Garland. than nothing is acceptable under a law So the majority said: We can’t have a context. Another judge in the majority that says you must provide an appro- debate on him because the Senate will pointed out that none of the parties priate education. approve him, because he is that quali- asked for a hearing within the time But here is one more thing. Breaking fied. He will get that bipartisan sup- permitted, and there was no justifica- news: A POLITICO report has just tion for polling the court on that ques- port. That is the principle of the filibuster; come out which says that Judge tion at all. that is, that you don’t close debate un- Gorsuch committed plagiarism in a These types of cases give you a sense less 60 Members say you close debate. book and in an academic article. Well, of how Neil Gorsuch has used his judi- So if 41 say we are not ready for what- that is news I had not heard, so I will cial position to rewrite laws. The law ever reason, you keep debating. That read the article, and we can all learn says protect the trucker. If the trucker sends a strong message for Presidents about it at the same time. is seeking to pursue safety, he says to do what President Obama did. He This is a report from POLITICO enti- don’t protect the trucker. The law says consulted with the Democrats; he con- tled, ‘‘Gorsuch’s writings borrow from provide the disabled child with an ap- sulted with the Republicans and chose other authors.’’ It came out at 11:19, propriate education; Neil Gorsuch says somebody who would be acceptable to which would put it an hour ago. Since no appropriate education is required. both sides. That is the way it is sup- I am here and since we are talking The court says that Planned Parent- posed to work. And when a President about Gorsuch, it is probably appro- hood’s rights were violated because ignores that and says: I am going to priate to share this breaking news with they were singled out. That is not support somebody from the extremes, I you. equality before the law, a very impor- am going to nominate somebody from Supreme Court nominee Neil Gorsuch cop- tant principle in American jurispru- the extremes, that is an invitation for ied the structure and language used by sev- dence. Neither side contested the out- the Senate to say no. The reputation, eral authors and failed to cite source mate- come. It was kind of like, yes, OK, the the legitimacy of the Court matters, so rial in his book and an academic article, ac- court got it right. Judge Gorsuch want- cording to documents provided to POLITICO. we are not going to approve this judge. The documents show that several passages ed to contest it so he could strip That is probably what is going to Planned Parenthood of funding on a from the tenth chapter of his 2006 book, ‘‘The happen this week. The majority here in Future of Assisted Suicide and Euthanasia,’’ basis that the Court found to be uncon- the Senate may say they want to close read nearly verbatim to a 1984 article in the stitutional. That is yet another reason debate, but will they have a super- Indiana Law Journal. In several other in- that this hearing, this review of the majority, a bipartisan majority? No. A stances in that book and an academic article judge be set aside. few Senators perhaps, but they will not published in 2000, Gorsuch borrowed from the You have these three fundamental have those 60 votes. ideas, quotes, and structures of scholarly and reasons. First, for the first time in our Obama’s judges met the 60-vote legal works without citing them. history, the seat has been stolen from standard—both of them that they put The findings come as Republicans are on one Presidency and delivered to an- the brink of changing Senate rules to con- forward before the third vacancy—and firm Gorsuch over the vehement objections other in a strategy to pack the Court, nobody filed a motion to close debate. of Democrats. The documents could raise causing tremendous damage to the in- There wasn’t a vote on a motion to questions about the rigor of Gorsuch’s schol- stitution, as well as tremendous dam- close debate. And why was that? Be- arship, which Republicans have portrayed age to this institution, because it in- cause everyone knew that they would during the confirmation process as unim- volved not exercising our advice and have 60 votes to close debate. So, still, peachable. consent responsibility. even out of the context of having had a The White House on Tuesday pushed back By the way, one may wonder, why cloture vote, you have the 60-vote against any suggestion of impropriety. didn’t the majority, rather than steal- standard there guiding the President Here is what the White House said: ing the seat, putting it in a time cap- and guiding the selection of the nomi- ‘‘This false attack has been strongly re- sule and fast-forwarding it into the nees. futed by highly-regarded academic experts, next administration in hopes of pack- We should not go back in time to a including those who reviewed, professionally ing the Court—why didn’t they just world in which the copper barons ruled examined, and edited Judge Gorsuch’s schol- bring Judge Garland up and vote him Montana, not back to a time where the arly writings, and even the author of the main piece cited in the false attack,’’ said down? The Senate has acted to not con- railroads and the oil companies called White House spokesman Steven Cheung. firm in roughly a quarter of the nomi- all the shots. We need to recognize that ‘‘There is only one explanation for this base- nations that have come forward to us we have come a long way in terms of less, last-second smear of Judge Gorsuch: for the Supreme Court. In those elec- fulfilling the constitutional vision that Those desperate to justify the unprecedented tion year cases that I put up earlier, our Founders set out—this vision of filibuster of a well-qualified and mainstream the Senate acted in all 15 of the cases equality under the law, this vision of nominee to the Supreme Court.’’ that preceded the death of Antonin the pursuit of justice. But with the re- That was the comment from the Scalia, but they didn’t confirm in cent decisions of the 5-to-4 Court, we White House. I must do a little bit of every case; they turned several of them have gone backward. We have gone editorializing here. Having a lengthy down. They tabled a couple of them. backward by allowing gerrymandering, debate on a judge is not unprecedented They defeated a motion to proceed in by allowing voter suppression, by at all. What is unprecedented is, for the another. But the Senate always acted. striking down the Voting Rights Act, first time in U.S. history, the majority Why didn’t the majority honor the and, most importantly, we have gone leader filed a petition to close debate responsibility under the law for the backward by allowing this vast infu- on the first day of debate. That motion Senate to do advice and consent, when sion of dark money from the very few under our rules means, in 2 days, we there was plenty of time to do so, when to drive election results. will have a vote to close debate. That

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.102 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2259 is what is unprecedented and never be- nalism: While Gorsuch may have borrowed Kuzma, a one-time aide to former Sen. fore done in U.S. history. Quite frank- language or facts from others without attri- Dick Lugar (R–Ind.), did not respond to an ly, when the White House says ‘‘main- bution, they said, he did not misappropriate inquiry from POLITICO, but released a stream nominee,’’ the analysis by the ideas or arguments. statement through Gorsuch’s team. Kuzma ‘‘Judge Gorsuch did not attempt to steal said she does ‘‘not see an issue here, even Washington Post didn’t find him to be other people’s intellectual property or pass though the language is similar.’’ a mainstream nominee. You can call off ideas or arguments taken from other ‘‘These passages are factual, not analytical him that, but read his opinions; read writers as his own,’’ said George. ‘‘In no case in nature,’’ Kuzma, now a deputy attorney his judicial activism; find how he re- did he seek credit for insights or analysis general in Indiana, said. ‘‘It would have been wrote the law so that it means the case that had been purloined. In short, not only is awkward and difficult for Judge Gorsuch to comes out the opposite of the way the there no fire, there isn’t even smoke.’’ have used different language.’’ law is written. See how that happened The article continues: But a 1983 Notre Dame Law Review article The examples at issue make up a small addressing the same case did, in fact, use dif- in the frozen trucker case. See how ferent, plainer language to describe the issue that happened in the autistic child fraction of published works by Gorsuch, which includes hundreds of legal opinions, than Kuzma or Gorsuch did. Author John M. case. See how that happened in his pur- academic articles, news articles and his Maciejczyk wrote that the ‘‘infant needed suit of the assault on Planned Parent- book. POLITICO did not conduct a full exam- surgery to correct a blocked esophagus.’’ hood, when everyone agreed there was ination of the federal judge’s writings. In several other examples provided to PO- a fair outcome and no one was appeal- Yet a review of the documents provided to LITICO, Gorsuch follows the fact patterns ing the outcome, except Judge POLITICO shows Gorsuch parroting other and sourcing without acknowledging them. Gorsuch. writers’ prose and sourcing without citing This article goes on for another sev- If we are going to talk about a fili- them. Instead, Gorsuch often acknowledges eral pages. I guess we have the time to the primary sources cited by those writers. share it in its entirety. But let’s not buster and we want to think about it in In the most striking example, Gorsuch, in the longer sense, we aren’t even al- his book, appears to duplicate sentences lose the fundamental point at the start lowed to continue talking to keep this from an Indiana Law Journal article written of the article; that is, the title, from being considered because the ma- by Abigail Lawlis Kuzma without attrib- ‘‘Gorsuch’s writings borrow from other jority leader filed a petition to close uting her. Instead, he uses the same sources authors,’’ and an introductory com- debate, so we have to have a vote on it. that Kuzma used: A 1982 Indiana court ruling ment here: But last year, for 290-plus days, the Re- that was later sealed, a well-known pediat- Supreme Court nominee Neil Gorsuch cop- publicans completely filibustered rics textbook, ‘‘Rudolph’s Pediatrics,’’ and a ied the structure and language used by sev- 1983 article in the Bloomington Sunday Her- eral authors and failed to cite source mate- Merrick Garland. If we are talking ald. about the core heart of the meaning of rial in his book and an academic article, ac- At one point, Gorsuch’s prose mimics cording to documents provided to POLITICO. filibuster—piracy, freebooting piracy Kuzma’s almost word for word in describing to take over the system—that is what a child born with Down syndrome. To continue and to share the full text they did last year. They wouldn’t allow Kuzma stated that— here, the article continues, providing even a committee hearing or a vote Some medical terms here that I more details. Tomorrow many people also for the first time in U.S. history. won’t get right— will be going through these because That is piracy. That is a violation of ‘‘Esophageal atresia with this is information that just came out our responsibility. So the White House tracheoesophageal fistula indicates that the an hour ago. It makes you wonder, is certainly got some of this completely esophageal passage from the mouth to the the reason that we had a first-ever mo- wrong. stomach ends in a pouch, with an abnormal tion to close debate on the first day of The article goes on—after having connection between the trachea and the debate—the first time in U.S. history esophagus.’’ cited the White House opinion that this this happened—because there is infor- was an unfair attack—saying: Did everybody follow that? mation that people are aware of, and Gorsuch wrote that ‘‘Esophageal atresia However, six experts on academic integrity they want to get this nomination vote with tracheoesophageal fistula means that contacted independently by POLITICO dif- concluded before this information be- the esophageal passage from the mouth to fered in their assessment of what Gorsuch comes public? Is that why we are vio- the stomach ends in a pouch, with an abnor- did, ranging from calling it a clear impro- lating all the constitutional norms mal connection between the trachea and priety to mere sloppiness. here? Well, I hadn’t thought of that ‘‘Each of the individual incidents con- esophagus.’’ That is pretty close to word for word. possibility until this article was put in stitutes a violation of academic ethics. I’ve my hands a few moments ago. never seen a college plagiarism code that Gorsuch also used similar language as The article continues: this would not be in violation of,’’ said Re- Kuzma in describing ‘‘Baby Doe’s’’ first days. becca Moore, a Syracuse University pro- ‘‘Shortly after Baby Doe was born, a hear- In several other examples provided to PO- fessor who has written extensively on the ing was held at Bloomington Hospital to de- LITICO, Gorsuch follows the fact patterns in issue. termine whether the parents had the right to sourcing of other writers without acknowl- Elizabeth Berenguer, an associate pro- refuse the surgery on behalf of their child. edging them. fessor of law at Campbell Law School, said An attorney was present at the hearing to In describing euthanasia activist Derek that under legal or academic standards represent the parents, though no one was Humphrey, Gorsuch’s book tracks closely Gorsuch’s similarities to the Indiana Law present to represent Baby Doe’s potentially with the 2003 book titled ‘‘A Merciful End: Journal would be investigated ‘‘as a poten- adverse interests. Six physicians attended, The Euthanasia Movement in Modern Amer- tial violation of our plagiarism policy. It’s three of whom had obstetric privileges and ica,’’ by Ian Dowbiggin. similar enough to the original work.’’ three of whom had pediatric privileges at ‘‘In 1989 Humphrey left his second wife, She continued: Bloomington Hospital,’’ Gorsuch wrote. Ann Wickett, soon after she had undergone surgery for breast cancer. During the di- ‘‘I would apply an academic writing stand- Kuzma, the predecessor from which it vorce, Wickett alleged that when Humphrey ard,’’ said Berenguer, who teaches plagiarism is being argued that he has taken this purported to help her mother commit sui- and legal writing. ‘‘Even if it were a legal virtually word for word, wrote: cide, the resulting death was not fully con- opinion, it would be plagiarism under ei- ‘‘Approximately twenty-six hours after In- sensual,’’ Gorsuch wrote. ther.’’ fant Doe was born, a hearing was held at Dowbiggin wrote— The White House provided statements from Bloomington Hospital to determine whether more than a half-dozen scholars who have In a parallel phrasing that preceded the parents had the right to choose a course Gorsuch’s writing— worked with Gorsuch or helped oversee the of treatment for their child that consisted of dissertation he wrote at Oxford University allowing the child to die. An attorney was ‘‘In 1989 he left his second wife, Ann that was later turned into his book. They in- present at the hearing to represent the Wickett, shortly after she had undergone cluded John Finnis, professor emeritus at child’s parents. No attorney was present to surgery for breast cancer. Their subsequent Oxford; John Keown of Georgetown Univer- represent Infant Doe’s interests. Six physi- divorce was made messier by Wickett’s alle- sity, one of the outside supervisors for cians attended the hearing, three of whom gations that her mother had not died will- Gorsuch’s dissertation; and Robert George of had obstetric privileges and three of whom ingly when Humphry had participated in the Princeton University, the general editor for had pediatric privileges at Bloomington Hos- suicide of her own parent,’’ Dowbiggin wrote. Gorsuch did not include an attribution to Gorsuch’s book publisher. pital.’’ The experts offered by the White House as- Dowbiggin in the passage at issue, though he serted that the criteria for citing work in I believe that last sentence was vir- did cite the author at numerous other points dissertations on legal philosophy is different tually word for word copied from what in the book. Dowbiggin listed his sources as than for other types of academia or jour- Kuzma wrote. ‘‘Deadly Compassion: The Death of Ann

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.104 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2260 CONGRESSIONAL RECORD — SENATE April 5, 2017 Humphry and The Truth About Euthanasia,’’ was the first time ever in our entire ica, the candidates wrestled with by Rita Marker, and ‘‘Last Rites: The Strug- 200-plus years as a Senate that a clo- whether to respond by attacking the gle Over the Right to Die,’’ by Sue ture motion on a Supreme Court nomi- Koch brothers, and generally, they de- Woodman. The same titles were cited as nee has been filed on the first day of cided not to because of the old adage sources by Gorsuch. In the same chapter, Gorsuch appears to debate. Maybe that motion should be ‘‘Don’t pick a fight with someone who rely heavily on a 2002 article by Paul withdrawn given that there is more in- buys ink by the barrel.’’ But the mod- Lombardo of the University of Virginia formation now to analyze as of a few ern version of that is ‘‘Don’t pick a about sterilization techniques used in that minutes ago than we had before. fight with someone who has the most state in the early 20th century. Lombardo The challenge this institution faces deeply funded super pac that exists in writes that a woman named Carrie Buck was is, how do we restore it to a func- the United States.’’ sterilized after having a child and her moth- tioning legislative body, and how do we So the Koch brothers carried their er was institutionalized. ‘‘Even worse for her, officials at her moth- repair the deep divide in America? This fight in 2014 into the Senate race in Ar- er’s asylum claimed that mother and daugh- question goes far beyond just the issue kansas. They carried their battle into ter shared heredity traits in feebleminded- of the nomination of Neil Gorsuch; this the Senate race in Louisiana. They car- ness and sexual promiscuity,’’ Gorsuch issue goes to fundamental changes in ried their battle into the race in North wrote. how this Senate operates, fundamental Carolina and in Colorado and certainly Wrote Lombardo, ‘‘Officials at Virginia changes in how our society receives its in Iowa and in Alaska and my home Colony said that Carrie and her mother information. While I shared some of State of Oregon. They were funding shared heredity traits of ‘feeblemindedness’ that previously, I think it is probably front groups to attack me with a third- and sexual promiscuity.’’ now, many hours later, worth going party campaign. This is what people There is a bit of an echo there. back through a little bit on this set of fear. The Koch brothers can write a $5 Gorsuch did not cite Lombardo despite challenges the Senate faces. million check—they and their associ- mimicking his sentences and presenting When I was first here as an intern in them in virtually the same order, according ates—and counter all the funds you to an electronic search of Gorsuch’s book. 1976—41 years ago—the Senate was here raised. Howard, the Syracuse University professor, all week long, Monday through Friday. In addition to the fact that we are said Gorsuch engaged in a passage known as It had a normal workweek. The Senate here only 3 days, a portion of those 3 ‘‘patchwriting’’—essentially patching to- families were here, which meant that days from Monday night to Thursday gether words, fact sequences and quotes from people had a more normal family life. night is given over to fundraising. So another source, but occasionally changing up During the breaks, they returned to instead of being able to go to dinner the phrases and tenses. their home States to share what they with colleagues, you go to a fund- It is a way to copy someone else’s had worked on, what they were going raising dinner. Maybe you slip across work while making it look like it is to work on, what the Senate was work- the street to do an hour of phone calls. your own. ing on, and generally hold townhalls If you are not raising for your own In addition to ‘‘heavy patchwriting,’’ How- and meetings and catch up on every- campaign, you are raising for your par- ard said, Gorsuch ‘‘hides his sources, which thing and then come back here after ty’s Senate group—the Republican Sen- gives the appearance of a very deliberate the break. That structure of families ate campaign committee or the Demo- method. I would certainly call it plagia- rism.’’ living here meant that there were con- cratic Senate campaign committee—or In a 2000 article in the Harvard Journal of nections not just between Senators but maybe you are raising money directly Law & Public Policy titled ‘‘The Right to connections between them and their for your colleagues themselves, helping Assisted Suicide and Euthanasia,’’ Gorsuch’s spouses. There were connections be- to make calls for an event that is up- writing aligns closely with a 1985 Duquesne tween their children. There were rela- coming. Law Review article about euthanasia in colo- tionships formed over many evenings So you have an incredible shrinking nial America. Gorsuch describes laws in co- in which people socialized, and they of the Senate week, combined with a lonial Virginia, Massachusetts, Rhode Is- had activities on weekends. huge expansion of the time dedicated land, South Carolina, North Carolina and There were a lot of connections that to fundraising in order to prepare for Pennsylvania in the same order and with similar quotations as the Duquesne article. we don’t have now, four decades later, the attack that may well come from But Gorsuch never cites the article in that because we fly in and vote on Monday deeply funded super pacs. That is not a passage, instead only repeating the same night, and then we vote on Thursday good combination in terms of Senators sources that it relied on. afternoon and fly out. So we don’t have getting to know each other and getting Oxford’s academic guidance for plagiarism the reenforcement of our families being to respect each other, developing states that ‘‘paraphrasing the work of others here to provide the kind of fabric in projects together. by altering a few words and changing their which the legislative discussion occurs, I know that it not only damages the order, or by closely following the structure time people should be working to- of their argument, is plagiarism if you do and we don’t have the time to get to not give due acknowledgement to the author know each other. That is a challenge. gether, but it also delegitimizes what whose work you are using.’’ Plus, we have to spend a lot more this group of 100 Senators does. The Christopher Sprigman, a New York Univer- time fundraising than folks in the minority feels almost compelled to sity law professor involved in building an on- Chamber did four decades ago. When fight the battle after having been at- line standard for citation in legal scholar- you realize that a single individual, tacked so viciously by the other side in ship, said he did not believe examples of under the deeply mistaken decisions of third-party campaigns. To some de- Gorsuch’s questionable writing reflected the Supreme Court, can now put as gree, this probably goes both direc- ‘‘mendacious’’ acts on the judge’s part. Gorsuch’s manner in attributing sources is much money into a campaign attack tions. So we come here brutalized by ‘‘a choice that you might agree or disagree against you through a third party cam- the groups who are supporting the with,’’ Sprigman said. ‘‘It’s a little bit risky, paign—that they can write a check for other side of the aisle. You are not par- but I wouldn’t say it rises to the level of a more than the total amount you have ticularly in a mood to help them out. bad act. I think some people would say it’s raised for your entire campaign, it This is why I keep coming back to sloppy.’’ means that you are going to have to this: It is easy to simply become a pure That is the conclusion of the arti- work very hard year after year to pre- partisan in this world in which deep- cle—again, information that just came pare for the next battle because the op- funded interests make up all kinds of out about 1 hour 20 minutes ago. So I position doesn’t have to prepare for the attacks and put them on television in recommend that folks take a look at next battle. They simply have these an effort to elect someone who will do the article. I am sure many people will massive amounts of funds that they their bidding, but if we do that, if we be analyzing it tomorrow. can deploy at a moment’s notice: Let’s don’t keep coming back together with Part of the point of the lengthy de- put $5 million in that race. Let’s put the philosophy of problem-solving, bates we often had over the Supreme $10 million in that race. then problems will never be solved. We Court is to have a chance for all the The result is, for example, in the case will never have a better healthcare sys- facts to come out. And the fact that to- of the Koch brothers, that when the tem. We will never have a better public night—well, that is, Tuesday night; it Koch brothers used front groups to at- education system. We won’t have a bet- is now Wednesday morning—Tuesday tack various candidates across Amer- ter transportation system. We won’t

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But it Judge Gorsuch, working as a Depart- tions with Congress regarding detainee also means that we need to change the ment of Justice lawyer at the time, abuses, military commissions, dynamic that creates those wounds. managed to weaken a provision in the warrantless surveillance, and broad That is why the Supreme Court seat Detainee Treatment Act permitting a claims of Executive power. matters, because the 5-to-4 Court has civilian appeals court to review deci- I think all of us should be more than been doing a lot of wound infliction on sions by military tribunals. a little disturbed by getting to the bot- our system, making it easier to gerry- The original draft let judges scruti- tom line here, which is that Congress mander, making it easier for voter sup- nize whether the tribunal had applied sought to ensure greater human rights pression, making it easier for dark- the correct standards, but the revised for detainees held at Guantanamo Bay money campaigns to corrupt the elec- language only let them look to see and Judge Gorsuch was working as a tion process. So we have to attack it whether the tribunal had applied DOJ lawyer to weaken a provision in on all fronts. standards set by the Pentagon. That is that regard and these other pieces that That experience of coming here 41 quite a change. I have referred to. years ago as an intern and seeing this After the legislation was passed, I will turn now to an analysis of ‘‘The place operate in a very different way Gorsuch sent an email to a colleague in Dissents of Judge Neil Gorsuch: Far to gives me the hope that some way, we the White House in which he said he the Right and Out of the Mainstream.’’ could find our way back from the needed cheering up. In the email, he This analysis by People For the brink. I don’t think we have been any- discussed successful efforts to weaken American Way goes through a number where as deep in the pit of partisan- the legislation stating: ‘‘The adminis- of cases, setting out the picture, if you ship—to mix metaphors—as at this mo- tration’s victory is not well known, but will, of just how far out of the main- ment, with this stolen seat; at this mo- its significance shouldn’t be under- stream Neil Gorsuch is. I will just read ment, with a cloud over our President stated.’’ this by Elliot Mincberg, written last and, therefore, a cloud over his nomi- After the Supreme Court issued a month: nation; at this moment, with a nomi- landmark ruling in June 2006 to find Many, if not most, decisions by the Su- nation that disrespected the role of a that officials involved in the use of in- preme Court and the court of appeals are supermajority, the role being to help terrogations could be vulnerable to unanimous. Reviewing the cases where an encourage Presidents to make nomina- prosecution for war crimes, Judge appellate judge has chosen to disagree with tions from the mainstream, not from Gorsuch helped draft a legislative pro- and dissent from his or her colleagues, there- the ideological extreme. Here we are, fore, can be particularly revealing. And that posal to address the issue, though he is precisely the case with Judge Neil deep, deep into the pit. left before the eventual bill, the Mili- Gorsuch. Judge Gorsuch’s dissents from his If we don’t solve the dark-money tary Tribunal Commissions Act, was colleagues on the Tenth Circuit Court of Ap- problem which is very related to the enacted. peals are consistently right-wing, generally Supreme Court, then we aren’t going to It is clear that he played a signifi- seeking to favor big business and other au- come together to solve the other prob- cant role in the case of Hamdan v. thority and harm the interests of workers lems because we won’t have people who Rumsfeld, which former Solicitor Gen- and those who have suffered abuse by gov- have been elected through a ‘‘we the eral Walter Dellinger called ‘‘the most ernment officials. And this is on a court which, until recently, consisted primarily of people’’ vision of America, where each important decision on Presidential citizen has an equal voice, Jefferson’s Republican appointees like Gorsuch. For ex- power ever.’’ The case was regarding ample: mother principle. the legal process being accorded to de- In Compass Environmental, Inc. v. Occupa- So that is the challenge that we face tainees at Guantanamo Bay. His cen- tional Safety & Health Review Commission, both on the Supreme Court side of this tral role was made clear by a request Gorsuch dissented from a decision to affirm nomination but also in terms of prob- from the Department of Justice Office a Department of Labor fine against a com- lem solving. of Public Affairs that he, along with pany that failed to properly train a worker, I think that article that just came resulting in his death by electrocution. the Solicitor General and his principal out is one that should add to this con- Gorsuch claimed that there was no evidence deputy, participate in a background versation—this article that says there to show that industry standards would have media call on the day the decision was is now yet another issue, an issue that required more training. But as the court ma- to be announced. didn’t come out in the Judiciary Com- jority and the agency found, there was The Department of Justice records ‘‘clear evidence’’ to support the ruling. mittee deliberations. POLITICO has prepared a side-by- show that Gorsuch had been very in- Let me say that again. Gorsuch said side comparison, which I have on this volved in helping support the inclusion there was no evidence. The court ma- multicolored chart so citizens can look of language in the Detainee Treatment jority basically found there was ‘‘clear that up and contribute to that. But it Act and the National Defense Author- evidence’’ to support the ruling. is yet another reason we should prob- ization Act and bolstered the position In particular, the company’s own job haz- ably go a different direction. that only the DC Circuit should be able ard analysis found ‘‘fatal danger’’ from the Now I am going to turn to Gorsuch’s to review complaints about the Bush high-voltage power lines involved, and rec- views of expansive Executive power. military commissions. ommended training for employees. Given the need for strong judicial Gorsuch repeatedly asked several That was the company’s own job haz- oversight of this administration, under DOJ colleagues in November where we ard announcement. The company itself the circumstances, this nominee is par- stand on the legislative language and if knew: If you are operating a piece of ticularly ill-suited. He has consistently there is anything we can do to help. equipment next to a high-powered volt- taken the position that Executive In February, a Republican Senate Ju- age line and that metal equipment power has very few limits. diciary Committee staffer sent Gorsuch touches that line, you create the possi- As a member of the Bush administra- a drafted amicus brief on behalf of Sen- bility of an electrocution. tion, Judge Gorsuch, according to the ators Kyl and GRAHAM for the adminis- That training was given to some em- New York Times, ‘‘was at the center of tration’s jurisdiction stripping argu- ployees, but the employee who was both litigation and negotiations with ments, a CONGRESSIONAL RECORD ex- killed did not get that training because Congress’’ regarding ‘‘detainee abuses, cerpt supporting the claim. Fortu- they didn’t give it to him. So the court military commissions, warrantless sur- nately, the Supreme Court rejected the majority said: Yes, you should have veillance and its broad claims of execu- jurisdiction stripping Hamdan, but it provided the training that you knew tive power.’’ was clear that Gorsuch was trying his was necessary for the operation of this As a lawyer at the Department of best to enact sweeping Bush claims to equipment in that setting with a high- Justice, Judge Gorsuch defended Presi- unilateral authority and severe limits voltage power line, but you didn’t give dent Bush’s enhanced interrogation on judicial review. it. Therefore, you are in the wrong. But methods. Let me go back to the central Judge Gorsuch saw it differently. In 2005 Congress passed the Detainee premise here. As a member of the Bush As a result of that negligence, the danger Treatment Act, which was meant to administration, Judge Gorsuch, accord- truly did become fatal, and the fine against

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He case when I spoke about it previously, by Gorsuch where his disagreements with his worked when he was first out of high as I have several times in the course of own colleagues, including other Republican school for construction companies on the night because I find it such an out- appointees, show that he is far to the right highways in Arizona, and he did a rageous situation, you have a driver and out of the mainstream. Altogether, whole host of roles but mostly repair- who is in an impossible situation. The Judge Gorsuch has written 35 dissents, which ing the equipment of the shop. brakes had frozen on a truck in subzero are in the following areas: workers’ rights, In a few years, he became a journey- temperatures. Therefore, the braking abuse of government official authority, cor- man, a mechanic. In the course of that ability on the trailer is compromised. porations and consumers, criminal law, and other constitutional issues. work on these big machines, you come So it is dangerous to drive it. Then the to be aware that there are a lot of haz- auxiliary heater in the cab had failed. So let’s take a look at each of these ards that need to be addressed. You So he is in subzero conditions in the areas. So again, these are cases where know some of those hazards for the op- cab, and as this relates he had con- Gorsuch is disagreeing with the major- erators, some of the hazards for work- veyed that he had gone numb. He was ity on a case. ing on the machines themselves. having trouble breathing because of Judge Gorsuch has written five dissents in Companies know this as well. They the cold. He couldn’t feel his feet. So cases concerning workers’ rights. know that if they are hiring a new em- he did the logical thing to protect his I am reading this analysis. This anal- ployee to work in a hazardous setting, own safety. He drove somewhere seek- ysis that has been prepared by Elliot they need to train the employee so the ing to get some heat but didn’t drive Mincberg last month, titled ‘‘The Dis- employee doesn’t get hurt. the trailer because to do so would have sents of Judge Gorsuch: Far to the The company didn’t provide the been to endanger everyone else. The Right and Out of the Mainstream.’’ So training. The employee died. The com- Court said this all fits with the law. Elliot writes: pany is fined. And Gorsuch says: No, Gorsuch disagreed. Judge Gorsuch has written five dissents in no, no problem here. In Planned Parenthood Ass’n of Utah v. cases concerning workers’ rights. In all but Really? Why did the rest of the court Herbert, a three-judge panel had issued a one, the majority found in favor of the work- preliminary injunction against Utah’s gov- er, but Gorsuch argued for a result that majority find otherwise? Why did the would have hurt the worker and helped a Department of Labor find otherwise? ernor for unilaterally cutting off Planned Parenthood (PP) funding. corporation or other employer. These include Why did he disagree with his colleagues the Compass Environmental and TransAm in order to protect a powerful corpora- This is a case that I referred to ear- Trucking cases discussed above. lier where you have three basic things. tion that had failed to provide the Those we already talked about. A Governor chooses to cut off funding, training that resulted in the death of a The two others are similarly troubling. person? eliminating equality under the law be- These are not my words. I am reading That is what the requirements for cause of some doctor videos that were Elliot Mincberg’s words. training are all about—to protect indi- released—videos that were completely viduals from situations where they are discredited later on—but in this kind of In Strickland v. United Parcel Service, Inc., the court majority ruled that a lower at high risk. You eliminate those risks. political campaign he chose to dis- criminate against Planned Parenthood. court had improperly dismissed a complaint (Mr. TILLIS assumed the Chair.) that UPS had committed sex discrimination The article goes on to address the The fact is that those videos weren’t against a fired female employee and had also issue of the frozen trucker who I dis- about Utah. They were about a pro- violated the Family Medical Leave Act cussed earlier. gram that wasn’t even utilized by (FMLA), and sent the case to the district In TransAm Trucking, Inc. v. Admin- Planned Parenthood of Utah. So at court so that the plaintiff could try to prove istrative Review Board, Gorsuch dis- every level, there was no basis for this her claims at trial. Although Gorsuch agreed sented from a decision. Here again, the discrimination. So the majority of the with the FMLA ruling, he dissented on the discrimination claim and argued that the majority is finding one thing, and, as full Tenth Circuit declined to rehear the case after the preliminary injunc- dismissal of that claim should be affirmed. you hear about this, you will realize The majority was critical of Gorsuch’s argu- that what the majority found was very tion. ment, noting that he ‘‘fail[ed] to acknowl- logical, and what Judge Gorsuch found Gorsuch, however, wrote a dissent for him- edge’’ substantial evidence that the worker was standing everything on its head: self and several others, and argued for defer- was treated differently because of her gen- ring to the governor. An important issue in Gorsuch dissented from a decision to ap- der. That evidence, the majority explained, the case was the governor’s intent in cutting included testimony from ‘‘multiple co-work- prove a Labor Department determination off funding, which the panel found was retal- that a large trucking company had wrong- ers’’ that she was treated differently than iation for promoting access to abortion. On male employees, including being required to fully fired a truck driver who had refused to that issue in particular, Gorsuch argued for drive under hazardous conditions. The trail- meet 100 percent of sales goals and being sub- deference to the governor in the name of jected to ‘‘increased oversight’’ such as fre- er’s brakes had frozen in subzero tempera- ‘‘comity.’’ tures, and the driver waited over two hours quent ‘‘negative’’ meetings that ‘‘interfered for repair help. He reported that he was In the name of comity? OK. Let’s get with her ability to do her job.’’ ‘‘having trouble breathing because of the this right. It is OK to violate the equal- Certainly, I think, in this day and cold’’ and that he ‘‘couldn’t feel his feet.’’ ity under the law in order to make nice age, we expect companies not to engage When help still did not arrive, he unhitched with the powerful government. That is in discrimination on the basis of gen- the large trailer because of concerns about what Gorsuch argued? Well, the major- der. Here the court found ‘‘substantial driving the entire load under those condi- ity certainly disagreed, noting that no- evidence,’’ including ‘‘testimony from tions and began to drive away in the cab. body party to the suit had asked for a multiple co-workers that she was The company insisted by radio that he keep rehearing. This is where you seek a re- waiting in the frigid conditions or drive with treated differently’’—and not in a posi- the full load, even though the trailer’s hearing by a broader group of the panel tive way—‘‘than her male employ- brakes had frozen. Although he returned of judges. If the defendant doesn’t dis- ees’’—subjected to different sales goals, when help arrived in around fifteen minutes, pute it, why would you possibly do a subjected to different oversight, sub- he was fired; the company claimed that the rehearing except to score political jected to different special meetings firing was proper because instead of remain- points on the rightwing of the uni- that interfered with her job. But Judge ing in the freezing conditions and not driving verse? That is what Gorsuch did. It Gorsuch disagreed with the majority (which was his right), he drove off without shows his lack of regard for reproduc- and thought that this argument of dis- the trailer instead of the dangerous way the tive rights. It also shows that he want- company demanded. Gorsuch agreed with the crimination should be rejected. company, claiming that finding for the driv- ed comity, that he wanted to make The article continues: er was improperly using the law ‘‘as a sort of nice with the Governor rather than de- Finally, in NLRB v. Community Health springboard to combat all perceived evils in fend the rights of the organization that Services, Inc., Judge Gorsuch dissented from the neighborhood’’ and that the objective to had been discriminated against. I think a ruling last year that upheld a National

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If the majority explained, Gorsuch earned elsewhere during the period that the ‘‘disregard[ed] the emotional or psycho- employees’ hours were improperly reduced. you are supposed to provide a break logical injury’’ that a jury could well find The Board concluded that such deductions time, provide a break time—basic fair- ‘‘resulting from intimidation, fear for per- were improper because the outside employ- ness for workers. But instead of having sonal safety,’’ and ‘‘loss of liberty and pri- ment was important to help address addi- this basic fairness for workers, there is vacy’’ as a result of being ‘‘removed from the tional hardship, encourage production and this campaign to take away the power residence in the middle of the night’’ and employment, and prevent dilatory conduct of the agency that provides that. being ‘‘locked’’ in a police car and interro- by employers in accord with law. But This came up in the context of the gated ‘‘for over an hour.’’ Gorsuch did more than dissent. challenge we faced in 2013 when the mi- To get a better grip on that case, this Again, I am reading now the words of nority said: We are not going to allow is setting up a situation in which, on Elliot Mincberg. anybody to be confirmed to the Na- very minor information, police proceed He excoriated the NLRB, a favorite target tional Labor Relations Board. They without a warrant to burst into a home of many right-wing Republicans, suggesting wanted it to be dysfunctional so they after midnight, grab a woman, throw that the NLRB’s decision could have couldn’t protect workers. Now we have her in the backseat of a locked police stemmed from its alleged ‘‘frustration that car, interrogate her, leave her there for it cannot pursue more tantalizing goals like a President who was running to help punishing employers for unlawful actions.’’ workers but he is nominating a Justice an hour, search the home without a Interestingly, one of the judges in the major- who treats that like a frivolous goal— warrant, and so forth. Gorsuch de- ity from which Gorsuch dissented was Chief protecting workers. scribed this as just a ‘‘transient feel- Judge Tim Tymkovich, also a Bush ap- Let me return to the argument here ing’’ of intimidation, according to this pointee who was on Trump’s list of 21 pos- and to the topic of the ‘‘Abuse of Gov- article. sible Supreme Court nominees, but who obvi- ernment Official Authority.’’ I think that if most of us were ripped ously was not selected. Judge Gorsuch has written four dissents in out of our homes in the middle of the You know the NLRB, or the National civil cases concerning claims of abuse of gov- night and were thrown into a police car Labor Relations Board, exists to pro- ernment official authority—three involving and interrogated, we would find it to be tect workers by making sure employers law enforcement officials and one involving something more than just a minor abide by the law, and I find that a state’s governor. In three out of four [of transient feeling of intimidation. Gorsuch’s language here that imputes these cases], his judicial colleagues found The point was the goal of whether that the Board was operating not on that such abuse had occurred or at least the she should be able to present her claim the facts of the case but out of the plaintiffs should have a chance to prove it. In all three of those cases, Gorsuch dissented to a jury. It was not even a finding on frustration that it ‘‘can’t pursue more and would have deferred to the government the legitimacy of her case; it was just tantalizing goals like punishing em- official. that she should have her day in court, ployers,’’ really quite bizarre. that she should be able to make her I know that in the pursuit of pro- We discussed already the most impor- tant of those dissents, which was claim that how she was treated was in- tecting workers it is often frustrating appropriate. Gorsuch minimized the to companies that they get subjected Planned Parenthood v. Utah. Let’s go forward to consider Cortez v. impact on her and wanted to strip her to fines for their conduct by the NLRB McCauley. of that ability to present her case in or are ordered to pay back pay, but court. The full Tenth Circuit considered whether isn’t this now the moment in which Shouldn’t citizens who have gone you have a President who said he was a couple whose home was unexpectedly in- vaded by the police after midnight could through what they believe to be ex- going to fight for workers? Wouldn’t he bring claims of abuse to a jury. In the case, traordinary experiences—and I believe want to nominate a judge who actually a 2-year-old girl for whom plaintiff Tina Cor- being pulled out of your house in the wanted to have the National Labor Re- tez had baby-sat, said that Tina’s partner middle of the night and thrown into a lations Board be able to successfully had molested her, which other later inves- police car and interrogated is pretty fight for fairness for workers, not tigation found to be untrue. substantial—have the ability to make someone who treated that as kind of a Based on that report alone and with no their case? Maybe the judge and jury warrant, four police officers burst into the frivolous thing: Oh, those workers, agree with you and maybe they do not. what do they need? They are just con- Cortez’s home after midnight. Among their other actions, the police woke up the couple This is just a case of, do you get a stantly bothering our powerful cor- and shined a flashlight into Ms. Cortez’s chance to ask for justice? In this case, porations with things like asking for face, grabbed her by the arm, put her in the Gorsuch said no, and the majority said fair treatment. How inappropriate is backseat of a locked police car, interrogated yes, you should have a chance. that? I mean, that is kind of the tone her, left her there for about an hour, and There are issues here. There are of the Gorsuch approach here, and I searched the home without a warrant even issues of personal safety, issues of loss think it is incredibly important that though the 2-year-old had not accused her of of liberty, issues of loss of privacy. we have an agency that says: If you any misconduct. In another case that Judge Gorsuch The couple was released and was allowed proceed to bring people in and you back into their house after 2 a.m. after it be- decided—and I return to reading the ar- don’t pay them for the hours they came clear from investigation elsewhere ticle—Judge Gorsuch also dissented in work, you must pay them. If you are that the claims against Mr. Cortez were false Webb v. Thompson, in which ‘‘the ma- supposed to pay overtime and you and there was no basis to proceed any fur- jority affirmed a lower court decision didn’t, you have to make it up. Some- ther. saying that county police officials were body has to hold people accountable to The majority and Judge Gorsuch were in not entitled to qualified immunity the law for protection and for fairness substantial agreement on Mr. Cortez’s from a complaint by a man arrested at to workers. claims of improper police conduct, but Judge a simple traffic stop and treated im- It is not as if workers in America Gorsuch wrote a dissent for himself and sev- eral other judges from the decision of the properly by county police. This in- have been doing very well. Over the majority, written by another Republican ap- cluded being held in jail for 5 days last four decades, workers have been pointee and joined by several others, that when, according to county police, he getting the short end of the stick. The Ms. Cortez should be able to present her should have been released in no more wealth in America has soared and claim to a jury and that qualified immunity than 48 hours.’’ soared and soared, and the workers, un- should not apply. This was, again, a man who was ar- fortunately, have received very little The majority criticized Judge Gorsuch be- rested at a simple traffic stop and was of that wealth. The inequality in the cause his dissent ‘‘comes very close to say- held in jail for 5 days when the policy Nation has expanded dramatically. One ing’’ that the police conduct was justified simply because the 2-year-old’s claim was re- was that he should have been released way of framing this is that virtually peated by a nurse and her mother and was in 2 days. all the new income in America has then ‘‘acted upon by police officers,’’ reflect- The lower court had found that there was gone to the richest 10 percent of Ameri- ing an extraordinary and improper degree of a disputed issue of fact as to whether three cans. So here we have an agency that is deference to police officials. officers had helped cause the delay, which all

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The majority easily ex- credit repair laws in connection with agree- more I think Neil Gorsuch should run plained the flaw in Gorsuch’s argument. ments to help him obtain financing for a new for office. He wants to change the law Whether or not they had an affirmative duty business. in case after case after case. Run for of- to act, the majority explained, the officers Both the district court and the court of ap- fice. Theoretically, that is what legis- were clearly liable if they, in fact, ‘‘caused peals majority, including a Republican ap- lators do, not what judges do. Judges the delay.’’ pointee, ruled against the corporations. call balls and strikes, not twist the law Here you have an individual who was Judge Gorsuch dissented, however, arguing to mean the opposite of what it was held after a minor traffic stop—held for that even though the six different agree- ments among the parties contained con- written to be. And in this case, he is 5 days in jail. I do not know about any flicting language concerning the specifics of saying the court should do a other Member of the Senate, but if a handling arbitration, the fact that all six ‘‘workaround’’ so that arbitration Member of the Senate were picked up called for arbitration of some sort was should take place, and the majority on a traffic stop and held for 5 days— enough, and that the court should do a said that is not possible. These are ir- and while we do not have the full con- ‘‘workaround’’ so that arbitration would reconcilable conflicts between the dif- text of the case here, under the rules, take place. ferent provisions of the different arbi- he should have been held no more than The majority strongly disagreed. The dif- ferent provisions, the majority explained, tration requirements. There is no 2—it would be pretty upsetting, and his created such ‘‘irreconcilable’’ conflicts that meeting of the minds. It is the prin- family would be pretty upset. it was clear that there was no ‘‘meeting of ciple of contract law, and it would be Thus, there is the question of wheth- the minds,’’ a basic principle of contract law. improper for the courts to write an ar- er you get a chance to present your The majority pointedly noted that it would bitration requirement. But that is case. Do you, as a citizen, get a chance be improper for ‘‘courts’’ to effectively write what Judge Gorsuch wanted to do. He to present your case? The majority in an arbitration requirement when the wanted to write an arbitration rule. He said: Yes, there is a reasonable basis agreements did not ‘‘demonstrate the par- wanted to legislate. Well, run for of- ties’’ intent. here. You get a chance to present your fice; don’t put yourself forward to fill a case. Let’s talk for a moment about this stolen seat on the Supreme Court. Gorsuch said: No, we are going to issue of binding arbitration. This is a I know that members of the Senate strip the individual of a chance to situation in which consumers are in- Judiciary Committee followed these present his case. volved in a transaction, and there is cases during the hearings of the Judici- It is quite a different approach, a some fine print that says: If we get ary Committee and looked at them continuous finding on behalf of the into a dispute, you must go to an arbi- carefully. The more they saw, the more powerful, but not always. So I return trator, and the outcome of that—what- they saw not a judge but someone who to reading the article. ever the arbitrator decides—will be the wanted to legislate, who wanted to re- In one case, A.M. v. Holmes, Gorsuch dis- only outcome you can get. write the law to help the powerful over sented in favor of an individual. The primary That sounds pretty good at first. An the ordinary individual, in case after claim in that case was against two middle arbitration sounds like a judicial proc- case after case. school officials who had asked an Albu- ess. Nothing about it sounds com- Let’s turn to another case. I will re- querque police officer to remove a 13-year- pletely unbalanced. But, in fact, it is old boy who had disrupted a physical edu- turn to the article. This article by El- not a judicial process; it is unbalanced. liot Mincberg, titled ‘‘The Dissents of cation class and rendered a teacher ‘‘unable The corporation hires the arbitrator. to continue to teach the class.’’ The student Judge Neil Gorsuch: Far to the Right was suspended and also arrested under a Now, if you and I are in dispute and and Out of the Mainstream.’’ State law prohibiting interference with the you are essentially hiring the referee The article continues: for that dispute, wouldn’t you kind of educational process. In Gorsuch’s sole dissent on environmental When the mother sued, the lower court figure the system was a bit rigged, es- issues, New Mexico Off-Highway Vehicle Al- granted qualified immunity, a 10th Circuit pecially if there are a whole series of liance v. US Forest Service, he dissented panel majority affirmed, but Gorsuch dis- disputes and the referee—that is, the from a ruling by two other Republican ap- sented, suggesting that the severity of the arbitrator—wants the business of the pointees and argued that the Sierra Club and officials’ reaction was not justified. The ma- corporation and is only going to get other environmental groups should not be al- jority also was troubled by the cir- that business if they find on behalf of lowed to intervene in a lawsuit contesting cumstances, but explained that it is ‘‘not our Forest Service rules that expanded the num- place to question or undermine’’ the state’s the corporation? So you are not going to get a fair hearing. You get an unfair ber of trails and roads that were only for decision to ‘‘criminalize interference with hikers and bikers. the educational process.’’ hearing. The system is rigged because the in- So the lay of the land here: You have In this case, Judge Gorsuch did dis- a really—by two Republican ap- pute a case and did so on behalf of an dividual being hired by the other party will get business only if they keep find- pointees, and you have Gorsuch argu- individual, giving more substantial ing the opposite side, saying that the support to the mother, who was suing. ing in that party’s favor, so you enter the room knowing that you are going environmental group should not be al- I am reading from this article writ- lowed to intervene in a lawsuit con- ten by Elliot Mincberg. It is titled to be found against, except in a rare circumstance. It is a completely rigged testing Forest Service rules. ‘‘The Dissents of Judge Neil Gorsuch: So then the article continues: Far to the Right and out of the Main- system. It doesn’t compensate at all. It doesn’t replace any fair adjudication, The Alliance, a nonprofit supported by stream.’’ Kawasaki and other motorized vehicle com- The article turns to the issue of cor- and it allows companies to get away with predatory practices because there panies, wanted to return to old rules allow- porations and consumers. ing motorized vehicles on more trails. Even Eight of Judge Gorsuch’s dissents involved is no avenue through which to pursue though neither the Forest Service nor the corporations, consumers, or both, including fairness. In this case, the majority said Alliance objected, the district court ruled one environmental case. One dissent in- there is no clear arbitration, but Judge against the environmentalists’ participation volved a case of two corporations pitted Gorsuch wanted to write a require- in the case, and Gorsuch agreed in dissent. against each other. In all but one of the ment. He wanted to legislate. As the majority explained, however, other seven others, Gorsuch disagreed with his col- We have seen these other cases where 10th Circuit decisions made clear that the leagues and wrote a dissent that favored cor- he wanted to legislate. He wanted to environmentalists had strong reasons to be porations, harmed consumers or other citi- change the way the law is written to involved in the case and ‘‘should not have to zens, or both. In the seventh, the corporation rely’’ on the government to protect their in- Gorsuch ruled against was an adult book- protect truckers who operate vehicles terests, particularly since the government store. This is the case of Ragab v. Howard. so as not to endanger others because he did not object to the proposed intervention. Ragab v. Howard concerned the increas- didn’t like that. He wanted to rewrite The majority specifically criticized Gorsuch ingly important issue of forcing individuals the law in Utah so that you could ban for appearing to rely on the opinion of just

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.112 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2265 three judges in a previous case involving all were having a family member in that The panel majority explained that in light 13 10th Circuit judges to try to reach a nar- situation, I would not want a hearing of the egregious conduct by counsel and the row and unfavorable result in the case. examiner to improperly disregard evi- obvious consequences, the case should be So I know that often Neil Gorsuch dence related to a claim for mental and sent back to the state to provide a remedy liked to say: I just apply the prece- ‘‘tailored to the injury,’’ i.e. the loss of a physical disability benefits. But ten-year sentence as opposed to a life sen- dents. So what does he do? He takes Gorsuch argued on the other side, tence. Gorsuch not only disagreed, but would the opinion of three judges in a case in- against the person on the minority also have gone even further. He claimed that volving 13 Tenth Circuit judges. Well, side. there was no Sixth Amendment violation at you can see a clever strategy as pre- In Blausey v. Trustee, where the majority all, because Williams received a fair trial in sented in this article, an effort to reach allowed a bankrupt couple to appeal an unfa- which his lawyer represented him well after a narrow and unfavorable result. vorable bankruptcy court decision, the ma- the plea agreement failed. The majority was extremely critical of The article continues: jority said the couple should be able to ap- peal an unfavorable bankruptcy court deci- Gorsuch’s claim. ‘‘No federal circuit court,’’ In WWC Holding Co. v. Sopkin, Gorsuch ar- sion rejecting the petition, although it ulti- they explained, had accepted Gorsuch’s view gued that a wireless service carrier should be mately decided against the couple, but that any pre-trial Sixth Amendment viola- able to avoid the Colorado Public Utility Gorsuch would not have accepted the appeal tion is somehow cured if the later trial is Commission’s efforts to enact state-specific in the first place. fair. Gorsuch’s claim that the Sixth Amend- consumer protection standards for wireless He would not have allowed that ment is essentially limited to what happens phone service because the company was com- bankrupt couple to appeal an unfavor- at trial, the majority stated, has been ‘‘re- plying with relevant federal rules. The ma- jected by the Supreme Court’’ and is ‘‘incom- jority in the case, including the Republican able bankruptcy court decision. The patible with a right to effective assistance of appointee, disagreed and ruled that Colorado majority said: We may not find in her counsel in connection with the entire plea had the authority to enact and enforce state- favor, but she deserves her day in process.’’ specific rules, including requiring free calls court. Judge Gorsuch said: No day in Let me comment here that when a at libraries, in school districts, and in other court for her. We are not letting her person is in court and has very limited community gathering places, under the ‘‘ex- even argue her case. funds—unlike a very affluent person press statutory authority’’ of federal as well The article goes on to address an- as state law. who can have a whole team of law- other section involving criminal law: yers—you really depend on your lawyer So let’s review that. Gorsuch wanted Most of Judge Gorsuch’s dissents have representing you in an effective man- the company to avoid the public utility been in criminal cases, often raising con- ner, not, as relayed here, in an egre- commission’s requirements, and the stitutional issues concerning whether people gious manner that basically under- majority said: Wait, there is express have been deprived of effective assistance of mined your path. statutory authority for the State util- counsel under the Sixth Amendment or of rights against unreasonable search and sei- ity commission to be able to require But Gorsuch did not stop there. He dis- zure under the Fourth Amendment. A num- sented from a decision by the entire 10th Cir- State-specific things such as free calls ber of these were habeas corpus cases, in cuit not to rehear the case, which included at libraries, in school districts, and in which the federal courts undertake limited several additional Republican-appointed other community gathering places. but important review concerning criminal judges, this time also claiming that the ef- This is another case where Gorsuch cases tried in state courts. Gorsuch has dis- fect of the court’s ruling was to overturn the wanted to be the legislator. Well, go sented in favor of criminal defendants on later jury verdict that had found Williams five occasions. But in almost twice as many, guilty. and get elected and write a law rather nine, he has dissented against rulings by col- than writing law as a judge when you One of the Republican-appointed judges on leagues, many of them Republican, that vin- the original panel made short shrift of are supposed to be calling the balls and dicated important constitutional rights. Gorsuch’s arguments in a concurring opin- strikes. Most troubling have been Gorsuch’s four ion. It was not a federal court that had origi- The article continues: dissents in cases where his colleagues found nally pointed out the Sixth Amendment vio- that Sixth Amendment rights were violated Judge Gorsuch dissented in three other lation requiring relief; it was the Oklahoma because individuals, usually low-income peo- cases in which the majority had found in appellate court that found Williams’ law- ple, did not receive effective assistance of favor of individual consumers. yer’s conduct ‘‘highly improper’’ and ‘‘defi- counsel. Perhaps the clearest example is pro- cient,’’ and that Williams had ‘‘indeed suf- So the majority says the individual vided by his two dissents in Williams v. fered prejudice by his trial counsel’s action.’’ is right, and Judge Gorsuch said: Let Jones. In the three-judge panel decision in Wil- Gorsuch’s view, the concurrence explained, me be clear. I want this case to come was ‘‘impossible to square’’ with Supreme out on behalf of the corporation. liams, two of Gorsuch’s Republican col- leagues, including the very conservative Mi- Court and court of appeals’ rulings on effec- The article continues: chael McConnell, ruled that more effective tive assistance of counsel. The Supreme Pace v. Swerdlow, where the majority re- relief was required for an individual who, Court denied review of the case. versed the dismissal of a negligence case both the majority and an Oklahoma estate So the Supreme Court sided with the against an expert witness and ruled that par- appellate court agreed, was deprived of effec- majority, essentially saying Gorsuch ents should have the opportunity to prove tive assistance of counsel. In this case, the got it wrong. This concept of effective that the expert’s actions prevented them state had offered Williams a plea agreement assistance of counsel is fundamental to from receiving compensation related to their under which he would serve 10 years in jail, daughter’s death. which Williams wanted to accept but was the notion of a fair trial system. An or- dinary person can’t represent them- So the argument of the parents was stopped by his counsel. The lawyer claimed selves; they have to have effective as- that there was an expert witness, and that Williams would be committing perjury if he accepted the agreement and said that sistance of counsel if there is to be any the expert witness’s actions prevented he would withdraw from representing Wil- possibility of a fair decision. them from receiving compensation re- liams unless the case went to trial; short of The article continues, saying: lating to their daughter’s death, and money, Williams agreed. The trial resulted Other dissents by Gorsuch on findings of the case should be dismissed. So the in a guilty verdict and a sentence of life Sixth Amendment violations include: majority reversed the dismissal, but without the possibility of parole. The Okla- Wilson v. Workman, in which the majority Judge Gorsuch dissented. homa court of appeals agreed that the law- of the full Tenth Circuit agreed, in a decision The article continues: yer’s conduct was improper and had harmed by Judge McConnell and joined by other Re- his client, but the only relief they granted In Salmon v. Astrue, where the majority publican appointees, that a death row pris- was to reduce the sentence to life with the oner suffered a Sixth Amendment violation ruled that a hearing examiner had improp- possibility of parole. The 10th Circuit accept- erly disregarded evidence reporting a claim because his lawyer failed to present impor- ed a habeas petition limited to the question tant evidence of Wilson’s poor mental health of physical and mental disability benefits of adequacy of the relief provided by the from the Social Security Administration, and other problems that could have miti- Oklahoma court. gated against the death penalty. Gorsuch but Gorsuch argued in dissent that the ex- The panel majority explained that in light dissented and claimed that the court should aminer’s denial met the legal test of being of the egregious conduct by counsel and the defer to the state appellate court that had supported by ‘‘substantial evidence,’’ which obvious consequences, the case should be rejected the claims. But as the majority he equated with simply being within the sent back to the state court to provide a pointedly explained, deference was inappro- ‘‘bounds of reason.’’ remedy ‘‘tailored to the injury.’’ priate because the state court had not con- The majority said the examiner—just What is the injury? Egregious con- sidered available ‘‘material, non-record evi- to review that—had improperly dis- duct by counsel resulting in a massive dence’’ and thus had not truly ‘‘adjudicated regarded evidence. Well, certainly, if I penalty. that claim on the merits.’’

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.114 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2266 CONGRESSIONAL RECORD — SENATE April 5, 2017 So here is another case of the lack of stopped and then searched a car for an al- illegally because of a prior conviction that effective assistance of counsel, and all leged traffic violation, when there was no resulted in a severe sentence. The majority that counsel’s representations were de- violation at all because the driver’s left turn stated that ‘‘we cannot agree’’ with fective—‘‘failed to present important was not illegal. Gorsuch claimed it was a Gorsuch’s claim that the US Sentencing reasonable mistake, but the majority ex- Guidelines could be equally plausibly read to evidence of Wilson’s poor mental plained that according to existing Circuit support the government’s position. As the health and other issues that could have precedent, ‘‘failure to understand the law by majority explained, the sentence on the prior mitigated against the death penalty.’’ the very person charged with enforcing it is conviction had been later enhanced because Gorsuch said it doesn’t matter. A ma- not objectively reasonable.’’ of the individual’s re-entry, not because of jority said of course it matters. ‘‘The To translate that, the police officer the original misconduct, and thus should not state court had not considered avail- shouldn’t stop somebody for making a qualify under the guidelines as a reason to further increase the sentence imposed. able ‘material, non-record evidence’ legal left turn when the left turn is and thus had not truly ‘adjudicated Gorsuch also dissented in US v. Raymond, legal. in which one of his Republican colleagues that claim on the merits.’ ’’ And in US v. Dutton, Gorsuch dissented wrote an opinion affirming a lower court de- Let’s turn to the case of Hooks v. from a decision by two other Republican ap- cision to dismiss an indictment that violated Workman. Again, I am reading from pointees that a search warrant for a storage a previous plea agreement that prosecutors this article: unit contained a ‘‘fatal flaw’’ because the ap- not bring additional charges against Ray- Hooks v. Workman, in which another Re- plication lacked ‘‘any evidence’’ that the mond arising out of conduct known to the publican-appointed judge wrote a panel opin- unit belonged to Dutton. Gorsuch called it a US Attorney before a specified date. Gorsuch ion finding that a death row prisoner’s law- good faith error, but the majority clearly argued that the district judge had com- yer had failed to present important mitiga- disagreed. mitted an error, but the majority explained tion evidence, including concerning Hooks’ So in these cases where he is dis- that ‘‘we cannot disturb the district court’s brain damage, mental retardation, and a his- senting, essentially the majority is factual finding’’ that the US Attorney did tory of abuse against him. Gorsuch argued have such knowledge, based on specific testi- this time that even if that evidence had been saying: You have to hold our public mony. safety officers to a standard required presented, the jury would have sentenced I am reading from a lengthy article Hooks to death. As the majority explained, by law. And Gorsuch is saying: Well, it prepared or at least issued under the however, the lawyer’s work was demon- was good faith. It wasn’t an error. They organization People for the American strably ‘‘deficient’’ and ‘‘prejudicial,’’ and didn’t mean to do it. He is choosing to Way and titled ‘‘The Dissents of Judge there was clearly a ‘‘reasonable probability’’ basically say that the individuals will that at least one juror would have refused to Neil Gorsuch: Far to the Right and Out not be able to assert the error made on impose the death penalty if the Sixth of the Mainstream’’ by Elliot the public safety side. It gives them a Amendment violation had not occurred. Mincberg. great big leash area, a big, sizeable So here the majority—this is not The article then turns to other con- zone, and compresses the zone in which Democratic or Republicans; it is an Re- stitutional issues. So I will continue the individual is acting. That is the publican-appointed judge—found that a reading it. This article continues: pattern we see in this. death row lawyer failed to present im- In addition to the criminal law and other portant mitigation evidence regarding Other criminal issues. cases discussed above, Judge Gorsuch has brain damage and mental retardation In addition to Carloss, two of Gorsuch’s written dissents from his colleagues’ opin- other dissents favorable to criminal defend- and a history of abuse—all mitigating ions in three other cases related to constitu- ants concerned prosecutions for federal fire- tional law issues: two relating to the Estab- circumstances. The failure to present arms violations. In US v. Ford, he argued in that meant the jury sentenced him to lishment Clause and one relating to the Con- dissent that prosecutors should have dis- stitution’s Guarantee Clause. In all three, death where they might not have oth- closed evidence suggesting that the defend- Gorsuch’s dissent was significantly to the erwise. The majority made it very ant was entrapped into purchasing a ma- right of even other Republican judges on the clear that ‘‘the lawyer’s work was de- chine gun, although the majority considered court or raised other troubling concerns. monstrably ‘deficient’ and ‘preju- that evidence not material to the defense. In In Green v. Haskell County Board of dicial,’’’ but Gorsuch dissented. US v. Games-Perez, Gorsuch dissented from Comm., a three-judge panel of all Republican The concept of effective assistance of a decision not to rehear a case concerning a appointees had concluded that an Oklahoma federal law prohibiting possession of a gun county’s decision to approve the construc- counsel as presented in these cases by a felon. seems to be one that Neil Gorsuch real- tion of and maintain a Ten Commandments Two other Gorsuch criminal law dissents monument on its courthouse lawn violated ly doesn’t grasp or, if he understands that favor defendants concerned unique the Establishment Clause. Judge Gorsuch the concept intellectually, doesn’t issues. In US v. Nichols, he argued in dissent wrote an opinion for himself and several want to, if you will, honor the require- that the full 10th Circuit should rehear a other judges that dissented from a decision ments of the Sixth Amendment. case in which a sex offender was convicted of by the full court of appeals, including several Turning to motions to suppress. violating requirements of the Sex Offender other Republican appointees, not to rehear Registration and Notification Act that he Judge Gorsuch’s record is mixed con- the case. He argued that the panel’s decision notify authorities when he travels to an- cerning dissents relating to motions to sup- was inconsistent with the Supreme Court’s other area. Nichols had been convicted prior press evidence because of alleged constitu- ruling in Van Orden v. Perry that upheld the to the date of the Act, and Gorsuch argued tional violations by police. In U.S. v. Car- Ten Commandments monument in Texas, that Congress had improperly delegated to loss, Gorsuch argued in dissent that it was and suggested that the court should not even the attorney general wide authority to de- improper for police officers to knock on a use the establishment ‘‘endorsement’’ test to termine to what extent the law applied to homeowner’s doors as part of an investiga- decide the case. As the panel decision ex- such offenders. tion into illegal possession of a machine gun, plained, however, the endorsement test re- without a warrant or exigent circumstances, So apparently in that case the major- mained the law in the Tenth Circuit (and when the homeowner had conspicuously ity was pointing out that Nichols had elsewhere), the monument clearly had the posted ‘‘No Trespassing’’ signs on his door been convicted prior to the date of the ‘‘primary effect of endorsing religion,’’ and and around the property. Gorsuch listed this act, and Gorsuch was arguing that Con- the Van Orden decision did not apply because opinion as one of his ten most significant gress had improperly delegated to the the case involving a monument that has stood on public property for 40 years without opinions in his response to the Senate Judi- Attorney General wide authority to de- ciary Committee questionnaire. challenge, while the monument in Green was In three other cases not involving tres- termine to what extent the law ap- recently erected and challenged. The Su- passing at home, however, Gorsuch dissented plied. preme Court denied review of the case. from decisions that suppressed evidence be- Gorsuch also dissented in US v. Spaulding Another panel of three Republican-ap- cause of improper conduct by law enforce- and disagreed with a majority ruling that a pointed judges simply ruled against the Utah ment. In US v. Benard, he dissented from a lower court did not have jurisdiction to set Highway Patrol Association’s construction decision to suppress statements made by aside a criminal judgment that contains a and maintenance of a series of 12-foot crosses Benard after he had been arrested without term of imprisonment. on public lands near roads to memorialize receiving Miranda warnings. Gorsuch argued In several other cases, however, Gorsuch deceased officers, explaining the crosses had that the error was harmless, but the major- dissented on the merits from decisions by his the ‘‘impermissible effect’’ of appearing to ity explained that they ‘‘cannot conclude’’ colleagues that disfavored prosecutors. endorse the Christian religion. Judge that was correct ‘‘beyond a reasonable In US v. Rosales-Garcia, he dissented from Gorsuch wrote an opinion for himself and doubt,’’ as the law requires. a ruling that the trial court judge had im- other judges that dissented from the decision In US v. Nicholson, Gorsuch dissented from properly enhanced the sentence of an indi- of the full court of appeals, including Repub- a ruling that police officers had improperly vidual convicted of re-entering the country lican appointed judges, not to not rehear the

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.116 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2267 case. Gorsuch again asserted that the ‘‘en- pointees, disagree. In those rare instances have an equal right to participate in the dorsement’’ test should not be applied, and when he does not so argue, he has frequently workforce and start a family. Yet, Gorsuch relied on a three-judge plurality in another sided with gun and property owners. His deems these interests secondary to a cor- Supreme Court case, Salazar v. Buono, that views are clearly to the right of the Supreme poration’s religious preferences. allowed a cross to remain on public property. Court majority—even when Justice Scalia The second area the article addresses As the panel explained, however, the en- was on the Court—on issues like the Sixth is refusing to support protections from dorsement test clearly remained the law of Amendment, partisan gerrymandering, the the Circuit, and the Buono case did not apply non-delegation doctrine, and the Establish- pregnancy discrimination. because it concerned a cross that had been ment Clause. Measured against his own col- Because many women will take time off on government property since the 1930s. The leagues on the Tenth Circuit including Re- from work at some point in their careers for Supreme Court again denied review of the publican appointees, he is far to the right the birth of a child, the Pregnancy Discrimi- case— and out of the mainstream, and should not nation Act was enacted in 1978 to make clear Which means they upheld the major- be elevated to the Supreme Court. that discrimination based on pregnancy or So that is the article titled ‘‘The Dis- child birth constitutes sex discrimination. ity and did not uphold the position Yet, too many women continue to confront that Gorsuch was taking— sents of Judge Neil Gorsuch: Far to the discriminatory, outdated attitudes about Justice Thomas alone wrote a vigorous dis- Right and Out of the Mainstream.’’ their ability and commitment to work sim- sent, making some of the same arguments as Let’s turn to an analysis of the ways ply because they are or might become preg- did Judge Gorsuch. that Neil Gorsuch threatens women’s nant. Finally, Judge Gorsuch and several others rights. This is titled ‘‘Extreme Far Two of Gorsuch’s former students at the dissented from the decision of the full 10th Right Judge’’ from the Center for University of Colorado Law School allege Circuit not to rehear a panel decision in Kerr American Progress. ‘‘5 Ways the Nomi- that, during a discussion about maternity v. Hickenlooper. The panel had upheld a dis- nation of Neil Gorsuch Threatens leave in Gorsuch’s legal ethics class, he stat- trict court decision to allow a claim by a ed that employers should ask female appli- number of State legislators and others that Women’s Rights.’’ It is from March 23, cants whether they intend to start a family. the Colorado taxpayer bill of rights, under 2017. He reportedly argued that women often ma- which all tax increases must be approved in The principle of equality is a cornerstone nipulate maternity leave policies to take advance by voters before legislative action, of American democracy. From our nation’s time off at the company’s expense before violated the Constitution’s Guarantee earliest history to the present day, there has leaving the company. Clause. Under that clause, all States are been a robust discussion about how to realize When asked about this at his Senate con- guaranteed a republican form of government the promise of equality and the everyday ex- firmation hearing, Gorsuch first denied mak- where a State legislature presumably makes periences of people across the country. But ing the comments, claiming he had merely such decisions. The panel did not reach the equality in the United States has come with asked students a question from a teacher’s merits of the claim, but agreed that there an invisible asterisk: Its principles have not text to illustrate the prevalence of sex dis- was standing to go forward and the case been uniformly enjoyed across different seg- crimination. But when asked about his spe- should not be dismissed as raising only a ments of society. Given this reality, people cific views on pregnancy discrimination ‘‘political question.’’ who face discrimination have always de- laws, Gorsuch raised more questions than Gorsuch argued that the issue was an pended on the courts to protect their access answers. He declined to say whether ques- unreviewable political question because to equal justice. tioning a female and not male applicants there were no ‘‘judicially manageable stand- The article continues: about their intent to start a family would ards’’ to decide it. The panel disagreed, violate the law. Gorsuch’s unwillingness to For women, the ongoing quest for equality pointing out that no such standards existed clearly affirm protections against pregnancy has been a deliberate—yet uneven—journey. in advance of the Supreme Court’s decisions discrimination is cause for concern. Women’s The U.S. Supreme Court has been pivotal in on the Second Amendment. In addition, ability to participate fully and equally in the determining the pace and scope of this Gorsuch ignored the fact, as one scholar has workforce depends on fair treatment without progress. It is therefore critical that the pointed out, that the Supreme Court itself regard to family responsibilities. next Supreme Court justice has an unflinch- has ruled on the merits of the Guarantee ing commitment to an equality that respects I am reading from the article, ‘‘5 Clause claims as recently as 1992. Even more all women’s dignity and autonomy, enables importantly, Gorsuch’s dissent suggested a Ways the Nomination of Neil Gorsuch them to participate fully in society, and em- particularly troubling view on the subject of Threatens Women’s Rights,’’ March 23, powers them to make decisions about their possible constitutional challenges to par- 2017. The article now addresses the lives that make sense for them. President tisan redistricting. issue of undoing Roe v. Wade. Donald Trump’s nominee to the Supreme Continuing the analysis here as pre- Court, however, has a judicial record that Throughout the Presidential campaign, sented in this particular article: suggests that he would attack—not ad- Trump promised to nominate a Supreme Court justice who would ‘‘automatically In particular, in trying to support the ar- vance—women’s equality if he is elevated to overturn Roe v. Wade. Judge Gorsuch admit- gument to his dissent, Gorsuch asserted that the Supreme Court. A close look at Judge ted he spoke with President Donald Trump the Supreme Court had ‘‘put to bed’’ in Vieth Neil Gorsuch’s record reveals that his ap- about abortion in his pre-nomination inter- v. Jubilerer the question of whether the par- pointment would likely threaten women’s view but claimed their conversation was lim- tisan gerrymandering could be challenged rights in the following five ways. ited to the issue’s political impact. constitutionally because of the lack of man- The first area of the article addresses Gorsuch has declined to discuss his views ageable standards of review. As the Cam- his putting employers’ preferences on Rowe at his hearing, beyond acknowl- paign Legal Center has pointed out, however, ahead of women’s rights. And then it edging that it is ‘‘precedent.’’ But his that statement is flatly wrong. Although continues: writings make his position clear. Gorsuch some justices argued that the issue cannot has argued against the legal principles on be reviewed, in his controlling opinion in Gorsuch favors protecting the religious which Roe is founded, both indirectly in his Vieth, Justice Kennedy recognized the corro- preferences of employers at their employees’ opinions and more directly in his book criti- sive effects of partisan redistricting, and expense. If confirmed, he would further erode cizing assisted suicide. He is critical of the held the door open for appropriate and judi- women’s ability to make sound personal right to privacy and the substantive due cially manageable standards in the future. In health decisions. In Hobby Lobby v. Sebelius, process rationale used by the Supreme Court fact, a recent decision from Wisconsin that Gorsuch and his colleagues on the 10th U.S. in support of this right. Without this right to articulated such standards in striking down Circuit Court of Appeals ruled that a closely privacy, there is no Constitutional right to partisan gerrymandering could well be re- held, for-profit corporation could refuse on make decisions about sex, reproduction, or viewed soon by the Supreme Court. religious grounds to comply with the Afford- even marriage without State interference. Gorsuch’s suggestion that he already agrees able Care Act, or ACA, requirement that Moreover, preserving and protecting a wom- with the justices in Vieth who claimed the health insurance cover contraception. Judge en’s constitutionally protected legal right to issue should not be are he viewed at all is ex- Gorsuch wrote a separate concurrence to the access abortion is critical to their individual tremely disturbing. court’s ruling, explaining the ACA mandate forced the corporations to violate their reli- dignity and autonomy. The article then has a short conclu- gious beliefs. A divided U.S. Supreme Court That is another section in the arti- sion that reads as follows: upheld the 10th Circuit’s decision. cle, ‘‘5 Ways the Nomination of Neil This review of Judge Gorsuch’s dissents While conservative judges frame the case Gorsuch Threatens Women’s Rights.’’ yields very troubling conclusions. Consist- as a dispute about religious freedom, Hobby The next section is ‘‘Eliminating wom- ently, he has argued in favor of corporations Lobby was also a case about women’s equal- and government authority and against work- ity and the rights of employees. The ability en’s access to health care.’’ This will be ers, consumers, environmentalists, and poor to control fertility is one of the most per- the fourth of the five sections. people, even when a majority of his col- sonal decisions a person can make; for Conservatives have relentlessly attacked leagues, including other Republican ap- women, it goes to the heart of whether they women’s access to quality, affordable health

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.118 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2268 CONGRESSIONAL RECORD — SENATE April 5, 2017 care, threatening their agency, health, and The Court is closely divided on the issue of This would have been March 17— well-being. Among the most vitriolic and in- whether to further open the floodgates for in calling on the Senate Judiciary Com- flammatory efforts: the push to defund unlimited and undisclosed political spending mittee and Senate leadership to closely scru- Planned Parenthood. Anti-abortion activists or allow limits designed to prevent corrup- tinize Gorsuch’s views on the influence of big tion and keep powerful special interests from have targeted Planned Parenthood because it money in politics. drowning out the voices of voters. The next provides abortion services, even though ‘‘Will Judge Gorsuch’s legal philosophy justice will tip the scales one way or the those services are provided with nonfederal lead him to strike down even more protec- funds and make up only a small percentage other. While the court may be split on what to do tions against the use of corporate or per- of the services the organization provides. An sonal wealth to influence elections, such as estimated 2.5 million people visit one of the about the influence of big money in politics, the American people are not. candidate and party contribution limits, or 650 Planned Parenthood facilities across the will he permit sensible limits on political country each year. Eliminating funding for Nine out of ten voters (93 percent) want ‘‘a Supreme Court justice who is open to lim- money in order to ensure the voices and will those health centers would devastate entire iting the influence of big money in politics,’’ of all Americans are fully represented within communities and dramatically reduce wom- according to recent polling. That includes 91 the political process?’’ the groups asked. en’s access to health care. percent of Trump supporters, most of whom In Citizens United v. FEC, the 5–4 majority During Gorsuch’s time on the 10th Circuit, apparently believed his populist rhetoric de- decreed that independent expenditures by the court upheld an injunction to stop Utah crying the influence of big donors. corporations ‘‘do not give rise to corruption Gov. Gary Herbert . . . from defunding Unfortunately, that’s not Neil Gorsuch. or the appearance of corruption’’ and that Planned Parenthood in response to misin- Gorsuch hasn’t handled many campaign fi- ‘‘[t]he appearance of influence or access, fur- formation to doctored videos that falsely ac- nance reform cases, but everything in his thermore, will not cause the electorate to cused the organization of selling fetal tissue. background and record strongly indicates lose faith in our democracy.’’ In reaching Gorsuch, however, took the unusual step of that he would favor fewer restrictions on po- that conclusion, the Court assumed that pushing for a rehearing by the full court, litical spending by corporations and the those expenditures would not be coordinated even though the Governor did not ask for a wealthy, not more. with candidates, and that they would be dis- rehearing. When his colleagues declined to The son of two lawyers, Gorsuch has spent closed. rehear the case, Gorsuch dissented and at- his life moving in elite legal and corporate Almost everyone in America thinks big tempted to legitimize the governor’s unsup- circles, and has been a strong ideological money in politics is a problem (94 percent) ported claims. conservative since his early days. He at- and that it ‘‘empowers wealthy special inter- The fifth section in this article titled tended Columbia University and Oxford, and ests over everyday Americans’’ (93 percent), earned his law degree at Harvard. From 1995 ‘‘5 Ways the Nomination of Neil according to a recent poll. to 2005, Gorsuch worked at a boutique D.C. Taken to its logical and legal conclusion, Gorsuch Threatens Women’s Rights’’ is corporate law firm representing corporate the reasoning in Citizens United—that cor- the section on ‘‘Denying women access clients—including the U.S. Chamber of Com- porations have the same right as people, that to justice.’’ merce—in anti-trust, class action, and secu- money is speech, and that laws can’t distin- No one can vindicate their rights if they rities lawsuits, before briefly joining the De- guish between speakers—puts the little that cannot even make it to court. Yet, in several partment of Justice under George W. Bush remains of our nation’s post-Watergate scan- cases, Gorsuch has shown a conspicuous and being nominated to the U.S. Court of Ap- dal reforms at grave risk. So far, the Court penchant for barring women from litigating peals for the Tenth Circuit. has rebuffed challenges to the federal ban on discrimination claims. The Chamber of Commerce spends more direct corporate contributions to candidates In Strickland v. UPS, Carole Strickland al- money to influence the federal government and to most contribution limits, but leged that she was discriminated against than any other organization, and was one of Gorsuch’s confirmation could change that. when she was held to higher performance the top political spenders in 2016, making it In one of his only campaign finance cases, standards than her male coworkers, even as among the biggest beneficiaries of the Su- Riddle v. Hickenlooper, Gorsuch wrote a con- she exceeded them in sales. The majority preme Court’s 2010 ruling in Citizens United curring opinion that suggests he would apply ruled that her case could move forward, but that allowed corporations to spend unlimited the highest level of scrutiny to contribution Gorsuch filed a dissent arguing that her evi- amounts on independent expenditures and limits that distinguish between types of con- dence of discrimination, which included tes- electioneering. Gorsuch hasn’t exactly left the corporate tributors. To date, the Supreme Court has timony from multiple co-workers, was insuf- world behind since becoming a judge, and has applied a lower level of scrutiny to contribu- ficient. In another case, Weeks v. Kansas, former become a millionaire in his own right. tion limits, including that reasonable limits A recent story by the New York Times doc- counsel Rebecca Weeks alleged she was fired only impose a marginal restriction on First uments Gorsuch’s close relationship with se- in retaliation for advocating for colleagues Amendment rights. cretive billionaire Phillip Anschutz, who has who experienced workplace discrimination. Gorsuch’s opinion signals that he might be amassed $12.6 billion in wealth through a willing to strike down a ban on corporate Upon review, Gorsuch openly ignored rel- sprawling business empire. Gorsuch rep- evant U.S. Supreme Court precedent because campaign contributions on Equal Protection resented Anschutz while in corporate law grounds. Weeks failed to cite it and denied her the practice, and Anschutz played a key role in right to proceed with her claim. If Gorsuch is Relatedly, Gorsuch joined the majority in getting Gorsuch nominated to the federal ap- the controversial Hobby Lobby Stores v. confirmed, women may face new barriers to peals court. challenging discrimination in court. Sebelius case, which relied heavily on Citi- Judge Gorsuch could become a reliable I am reading from an article entitled, zens United to extend religious liberty pro- vote against the critical rights essential to ‘‘Gorsuch Would Move the Supreme tections to corporations. Indeed, Gorsuch women’s equality and women’s progress— Court in the Wrong Direction on would like to have taken things even further such as the ability to access reproductive Money in Politics.’’ to hold that any individual owners of the corporation could challenge laws that alleg- health care, including abortion, and chal- Gorsuch has been a frequently featured edly impinge on their beliefs. lenge different forms of sex discrimination in guest at the mogul’s annual dove-hunting re- When viewed together, those two cases the workplace. Women deserve a Supreme treat for the rich and powerful on his Eagle support the troubling conclusion that a Jus- Court justice who will not turn back the Nest Ranch. At the 2010 retreat, Gorsuch tice Gorsuch would be more likely to expand clock on their rights. The Senate should spoke about the importance of judicial nomi- on Citizens United’s anti-reform rationale stand up for women and reject President nations, ‘‘especially when we live in a sys- than to walk it back. Trump’s Supreme Court nominee. tem where judges have the last word’’ on the Outside spending has more than doubled Constitution and are ‘‘empowered to strike The author, Jocelyn Frye, is a senior since Citizens United and our elections are down legislation.’’ Gorsuch implored his fellow at American Progress, and co- awash in cash—most of it from the super author Michele Jawando is vice presi- elite audience ‘‘to be vigilant to all threats to our prosperity.’’ rich, and much of it secret. dent for legal progress at American Not surprisingly, Gorsuch’s rulings as a According to a new study by Demos, the Progress. federal appeals court judge have consistently Supreme Court’s string of decisions deregu- Let’s turn now to an article on favored large corporations over consumers lating campaign spending over the past dec- money and politics. This article by Arn and workers, and indicate a willingness to ade was responsible for $1.3 billion in spend- Pearson appeared in the Huffington overturn key Court precedents that have ing on the presidential race and 77 percent of supported efforts to reign in corporate power the money flowing into competitive races in Post. It is titled ‘‘Gorsuch Would Move 2016. the Supreme Court in the Wrong Direc- since the New Deal. The big question is whether Gorsuch would Campaign spending isn’t charity. Most big tion on Money in Politics.’’ use his seat on the Supreme Court to further donors have a stake in government decisions The article starts out: weaken anti-corruption measures when it and want something in return. The result? Who the Senate confirms to fill the current comes to political spending. Increasingly, concentrated economic power vacancy at the U.S. Supreme Court will de- People for the American Way joined 120 is translating into concentrated political termine the nature of our elections for dec- other democracy reform and advocacy orga- power, and the rest of us are left on the side- ades to come. nizations and 110 House members this week— lines.

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.120 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2269 By all appearances, Gorsuch’s confirma- have greatly magnified the amount of nally, they found something that had tion to the Supreme Court would move the work that can be done by a human. been staring them in the face, which country further in that troubling direction When we used to evaluate how much was that the water was too acidic. The by granting corporations new rights and crippling government’s ability to protect work you can do, we talked about water they were pulling through a big Americans from the exercise of increased horsepower—1 horsepower, 2 horse- pipe out of the ocean was too acidic be- corporate power. Yet three out of four voters power. cause of the carbonic acid. The result want Congress to reject any Supreme Court I was working in a village once where was that the baby oysters had dif- nominee ‘‘who will help the wealthy and I was asked to help a man whose neph- ficulty in forming their shells. It is not privileged wield too much power over our ew plowed a field in a remote hilltop, just the baby oysters, as coral reefs are elections.’’ and we had a 2 horsepower plow. We ac- being profoundly impacted across the It’s not hard to connect the dots. Con- tually had a horse and mule pulling firming Gorsuch would take the country world. down a path very few of us want, with dam- that plow. The man told me that that There is a researcher from Oregon aging results for the health of our democ- combination was very good because the State University, Professor Dickson, racy. horse responded to commands better who has made studying coral reefs his So that is the completion of the arti- and got the mule to behave, and the life’s work. He did a briefing here in cle entitled ‘‘Gorsuch Would Move the mule was better at pulling the plow. So DC. It was probably 7 or so years ago— Supreme Court in the Wrong Direction that was the combination. That was 2 6 or 7 years ago. He showed some slides on Money in Politics’’ by Arn Pearson horsepower. But when you burn fossil of the coral reefs that he had been from March 17, 2017, in the Huffington fuels, you create a tremendous amount studying—what they used to look like Post. of energy. We don’t talk about our cars and what they looked like today. He This issue of money in politics is a with 1 or 2 horsepower; we talk about said: These reefs are my babies, and my huge one for the future of our country. 100 horsepower or 200 horsepower. babies are dying. They are dying be- If we do not succeed in reversing the Burning fossil fuels has enabled us to cause the temperature of the water is decisions that have unleashed a flow of transform the face of this planet in a warmer and more acidic. largely secret money concentrated in few generations. Sometimes that has You may wonder how this affects the the hands of the megawealthy into been an extremely positive develop- corals. First, as with the oyster shells, campaigns, then there is no way that ment—better housing, better transpor- they have more difficulty in forming you end up with a House or Senate that tation systems. But there is an enor- their bodies. Coral is an animal, and it reflects the will of the people. mous dark side to the burning of fossil lives in a symbiotic relationship with The President seemed to campaign fuels, and that dark side is the product, algae. When the changes occur in the saying that he cared about workers, the pollutant, carbon dioxide. As it is water, the algae can multiply at a rate about ordinary people, but he has nom- accumulating in the atmosphere, it is that is not supportable by the coral, inated an individual who gives every providing the blanket that is causing and the coral ejects them. This is re- indication of fully supporting the abil- the Earth to warm, and that warming ferred to as bleaching. If circumstances ity of money to be concentrated in is a very destructive force on our farm- do not change quickly, the coral will campaigns by the most wealthiest indi- ing, on our fishing, and on our forests. die because it has ejected its symbiotic viduals in our country and in fact cor- We used to talk about computer models partner on which it depends in order to rupting the outcome. and what might happen in the future. live. There are reports that, over the I mentioned earlier that you can see Now we simply pick up a newspaper past few years, 80 percent of the Great this corrupting power by looking at the and every day there is a news story of Barrier Reef, off of Australia, has died. disappearance of the interests of my some impact of global warming. So here we have this massive prob- colleagues across the aisle in the envi- In my home State of Oregon, we have lem that is facing the planet—carbon ronment. It used to be that Repub- a fire season that is two months longer pollution. It is having a huge impact licans were often expressing a lot of in- than it was 40 years ago, with more on our farming for irrigation water. terest in the sustainable management acreage of forests burning and more Certainly, in our fishing, it is affecting of the environment. heat doing more damage. We have the things like coral reefs and oysters and It was President Nixon who created spread of insects like pine beetles, in our forests, with there being more the Environmental Protection Agency which would have been killed by colder intense forest fires. Yet we here are and the Clean Air Act and Clean Water winters but are not killed by the warm- doing so little to face this and address Act, and many colleagues expressed a er winters. We have a snowpack in the this. lot of interest in taking on one of the Cascades that, while it can go up and Why are we doing so little? most diabolical sources of pollution, down year to year, in general has been We are doing so little because the carbon dioxide. But that interest has declining, meaning less water for coal and oil billionaires have proceeded completely disappeared since the fossil streams. So we have warmer, smaller to invest so much money in third-party fuel industry put ‘‘bazillions’’ of dol- trout streams, and we have less water Senate campaigns to elect one side of lars into the Republican Senate cam- for irrigation, and we have over on the the aisle and defeat the other side. paigns—completely disappeared. Isn’t coast a challenge with our oysters that They become the controlling power be- that exactly the type of corruption reflects another consequence of the hind what happens here on the floor of that the Supreme Court said they growing pollution of carbon dioxide. the Senate. didn’t expect to see? That carbon dioxide is absorbed into Those interests, most prominently Let me tell you that we have seen the ocean. A significant amount of it is represented by the Koch brothers, do this pollutant, carbon dioxide, surge in absorbed into the ocean and converted not want us to take on this issue of the atmosphere. Going back 20 to 30 into carbonic acid. This acid then, hav- global warming and carbon pollution years ago, there was an increase per ing changed the chemistry of water, because to take it on means to trans- year in the parts per million in the at- makes it much more difficult for sea form our energy economy from extract- mosphere of about one per year. So you life to form shells. ing and burning fossil fuels, which they might go from 350 to 351 parts per mil- At about the time that I was running own vast amounts of, to clean and re- lion in 1 year, and 351 to 352 the next. for office—running for the U.S. Senate newable energy, which does not create Now what we see is that the rate of pol- in 2007, 2008—there was a problem en- carbon dioxide—solar energy and wind lution has increased, and we are seeing countered by the Whiskey Creek Oys- energy. This group of companies—the close to an increase of 2 parts per mil- ter Hatchery in that its baby oysters Koch brothers and friends—is doing ev- lion. This is not at one location. This is were not thriving, often dying, and erything it can to make sure that this dispersed carbon dioxide pollution they wondered why. body sustains the subsidies we give to across the world. This pollutant is di- They turned to researchers at Oregon it and not help the success of the clean rectly the product of burning fossil State University. They thought maybe and renewable energy that might re- fuels, coal, and gas and oil. that this was a virus, but it was not. place the fossil fuels. So we have been extracting and burn- They thought maybe this was a bac- Look at it this way: Imagine that ing these fuels for 150 years, and they teria, and it was not a bacteria. Fi- you have a set of doctors and they have

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.122 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2270 CONGRESSIONAL RECORD — SENATE April 5, 2017 an enormous disease affecting a city, tion. We are going to stand for the in- her. But in Pinkerton v. Colorado Depart- but the donors behind the doctors have tegrity of the Senate, and we, cer- ment of Transportation, Judges Gorsuch and a big stake and do not want them—the tainly, are going to stand for the integ- Kelly uphold the ruling of a magistrate judge doctors—to address the illness. That is rity of the Supreme Court. That vote that she had waited too long (two months) to report the harassment and the claim could corruption, and that is what we have should be 100 to zero to oppose closing not go to trial. right here, right now. debate, but at least 41 of us care about We have a Senate that is corrupted this Constitution, and we will be doing But as the dissenting Judge, David by Citizens United and dark money all we can to try to save our Nation. Ebel, pointed out, there could have that flows through the campaigns and I am going to share an article by been justifiable reasons for the delay. causes Senators who were concerned Paul Gordon: ‘‘Real People, Real Lives: Perhaps she felt the harassment wasn’t about the environment to decide that, The Harm Caused By Judge Gorsuch.’’ sufficient enough to file a complaint if they want to stay in office, they had This article was written in February of until it elevated to a certain point, or better not talk about it and they had 2017. maybe she thought she could get her sure better not do anything about it. In When Donald Trump was running for presi- supervisor to stop without the involve- addition, this fossil fuel cartel wants to dent, he outsourced his future selection of ment of the civil rights office and with- make sure it has a corps that continues potential Supreme Court nominees to two out possibly damaging her relation- this corruption. That is why they put right wing organizations, the Federalist So- ships with others in the office. so much pressure on Senators not to ciety and the Heritage Foundation. They In addition, although this was not men- consider Merrick Garland when he was provided him a list of 21 people who were ac- tioned in the dissent, perhaps the judges in ceptable to them, Trump (the candidate) the majority had insufficient personal famil- nominated last year, in 2016. promised to select a nominee from the list For the first time in the history of iarity with repeated sexual harassment to they gave him, and they and their right wing know the many reasons a woman might not our country, when there was a vacancy colleagues agreed to support him. Neil promptly file a complaint. But instead of let- during a campaign year—an election Gorsuch was nominated as the product of ting a jury decide the question of fact as to year—the Senate failed to do its re- this political arrangement. whether she waited ‘‘too long,’’ Gorsuch and sponsibility under the advice and con- So it is no surprise that Judge Gorsuch has Kelly took it upon themselves to be the ju- sent clause of the Constitution. There a history of regularly finding ways to put rors and decided this factual issue on their were 15 times when we had previously corporations and the powerful first. In that own. way, he is much like his idol and role model had a vacancy during an election year, Pinkerton also claimed that the Depart- Antonin Scalia and the other far right con- ment of Transportation had fired her as re- and 15 times the Senate had responded, servatives on the Supreme Court. And while but not last year, not on turn No. 16. taliation for reporting the sexual harass- this unbalanced approach to cases might ment, while her employer cited poor per- Why was that? It is because the oil and make for interesting reading, the courtroom formance as the cause, each side having sup- coal cartel did not want Senators to is not an academic paper. Each case involves porting evidence. Here too, Judge Gorsuch consider a Justice who might, actually, real people with real problems. While a judi- took the issue away from a jury. He joined end this corrupt system of the funding cial decision might be just another day at Judge Kelly’s majority opinion in a detailed of campaigns. work for some judges, it is often one of the analysis of all the evidence (like a jury You can see that their influence most important and impactful days in the would have done at trial), decided that no lives of the people involved. Below are some reasonable jury would find the Department comes on multiple levels in terms of di- of the cases Judge Gorsuch has been involved rect pressure on policies for those who of Transportation fired her for any reason with and the people who have been affected but poor performance, and therefore dis- sit in the Senate but also in terms of by them—people who have been victimized missed her retaliation claim. determining who sits in the Senate to outside the courtroom and, to the extent That’s the jury’s job, not theirs. As Judge begin with. In this article, Gorsuch Gorsuch’s view prevails, are victimized Ebel noted in his dissent, each side presented would move the Supreme Court in the again. evidence supporting their position, and the wrong direction on money and politics. (Mr. JOHNSON assumed the Chair.) case should have gone to trial so the jury This is not just one issue among dozens The article continues by turning to could do what it is supposed to do: Deter- of others. This is a key issue as to the case of Pinkerton v. Colorado De- mine the motive for the firing. Judge Ebel whether or not we have a ‘‘we the peo- partment of Transportation, 2009. listed several factors that a jury might con- ple’’ government, which we are in the How many men serving as Federal judges sider to determine that the employer’s ra- tionale of job performance was simply a pre- process of losing. We are fighting this on circuit courts have experienced increas- ingly blatant sexual harassment from a su- text for her firing. For instance: nomination because we are fighting to The State Department of Transportation keep this vision—our constitutional vi- pervisor over a period of weeks and months? Probably not many. Perhaps that played a director testified that the most serious error sion. role when Judge Neil Gorsuch joined Paul leading to Pinkerton’s firing was an alleg- Our Founders were well aware that Kelly’s opinion upholding the dismissal of a edly mishandled call from an employee’s the powerful want to have a govern- fired woman’s case alleging outrageous sex- daughter that had happened about four years ment that serves the powerful. They ual harassment and retaliation. earlier. saw it throughout Europe. They said: Betty Pinkerton experienced two months The director tried to get Pinkerton an- We are going to do it differently in the of escalating sexual harassment from David other job with the state Department of Transportation only months before she was United States of America. We are not Martinez, her supervisor, at her job with the Colorado Department of Transportation. The fired. going to have a government by and for As Judge Ebel noted, ‘‘It is a jury’s func- the powerful. We are going to have a harassment began in December 2002 when Martinez asked her, ‘‘What does a divorced 52 tion to determine whether an employer acted government by and for the people. year [old] lady do when she gets sexual with a retaliatory motive.’’ But Judge This is where Jefferson was con- urges?’’ As she unfortunately had to do sev- Gorsuch chose to join his colleague as the cerned about whether we could sustain eral times over the next two months, Pin- jury so that Pinkerton would not have the such a government—one that would kerton told him he was being inappropriate issue decided by a jury of her peers. make decisions that reflected the will in asking such personal questions. I am reading from an article called of the people. He noted that we must, The harassment continued through Janu- ‘‘Real People, Real Lives: The Harm in order to have that happen, have in- ary and February. Every time she made it Caused By Judge Gorsuch,’’ by Paul dividuals—each citizen—have an equal clear that his comments were not welcome, but the harassment continued. Gordon, March 2017. voice. But Citizens United and the phi- So on February 19, 2003, she reported the The article now turns to the case of losophy for the powerful of Neil harassment to the office of the civil rights Caplinger v. Medtronic in 2015. The Gorsuch is the opposite of Jefferson’s administrator and formally filed a written headline of this section is ‘‘Medical De- mother principle. It is the opposite of complaint on February 24. About three vice Maker Pushes Misuse of Product: ‘‘we the people.’’ That is why, when we weeks later, Martinez was removed as Pin- Protecting a Corporation From Its Vic- come to a vote on closing debate on kerton’s supervisor, and on March 21 he was tims.’’ this nominee, at least 41 of us are going formally found to have engaged in sexually inappropriate conduct with her. It starts out saying: to stand up and say: absolutely not. We But six days later, Pinkerton was fired. Illness can be frightening. We turn our are going to stand for the integrity of She sued the Department of Transpor- health and our lives over to medical per- the United States. We are going to tation, claiming it was liable for the hostile sonnel and there are many devices of heal- stand for the integrity of our Constitu- work environment Martinez had imposed on ing. While the physician is highly trained in

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.124 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2271 medicine, the device manufacturers are high- cant progress in skills relating to commu- Let me return to the article. This ly trained in selling their products to the nication, self-care (including use of the toi- section is called ‘‘No Leave Extension physicians. Patricia Caplinger learned this let), independence, motor skills, social inter- for Leukemia Patient: Gorsuch’s the hard way. actions, and academic functioning. Cramped View of What Makes an Ac- Suffering from a degenerative disc condi- But there was an enormous problem for tion, Patricia Caplinger and her doctor dis- Luke. He was generally unable to transfer commodation Reasonable.’’ This is the cussed her options. Medtronic had developed his skills into environments other than case of Hwang v. Kansas State Univer- the ‘‘Infuse Bone Graft device,’’ which stimu- school. So when he was home or otherwise sity, in 2013. lated bone growth. The FDA had only ap- out of school, he continued to have signifi- Grace Hwang, a longtime assistant pro- proved its use for surgeries entering the body cant problems. fessor at Kansas State University, received from the front, but a Medtronic representa- Fortunately, his parents learned about a frightening news in June of 2009: Her doctors tive recommended an ‘‘off-label’’ usage: residential private school specializing in diagnosed her as having leukemia. Without Enter from behind to use the Infuse device. educating children with autism. If he could aggressive chemotherapy and a bone marrow Not knowing that Medtronic had evidence gain admittance, Luke would live at the transplant, she would die. She had to spend that such posterior approaches could actu- school for 44 weeks of the year, and he would six months in medical facilities, during ally cause serious complications, both be supervised 24 hours a day. It was a great which time she was on a paid leave of ab- Caplinger and her doctor chose to follow opportunity to not only advance in the skills sence. But she made sure her work got done: Medtronic’s advice. The company’s rep- learned in school, but to generalize them so She prepared the instructors who were step- resentative was even present for the oper- they weren’t place-dependent. His parents ping in for her, including by sharing her ation. enrolled him there with updated education teaching materials, lesson plans, and syllabi. The consequences of the company’s rec- goals and a new plan to achieve them. They Even while she was hospitalized, she con- ommendation were terrible for Caplinger, be- then applied to the school district to reim- sulted with the substitutes through phone cause posterior use of the device resulted in burse them (since IDEA promises a free edu- calls and e-mails. too much bone growth. Two or three months cation). But the district refused. They were In January, after her six-month ordeal, after the procedure, her symptoms returned willing to accept Luke’s updated plan, but Professor Hwang was looking forward to re- and worsened. She developed foot drop as a they insisted those goals could be met at the turning to work. But there was a severe out- result, which in turn led to a knee ligament public school he’d been attending. break of swine flu on campus, and her physi- tear requiring surgery. The rapid overgrowth His parents refused to send him back to a cians warned her that, due to her com- of new bone in her spine led to additional school that had achieved some success but promised immune system, she should stay surgery, but the overgrowth continued none- had also failed Luke in many important away from campus. So she informed univer- theless, requiring yet another surgery. ways and continued to seek reimbursement. sity officials that she would need some addi- Because of the harm she suffered, A hearing officer, an administrative law tional leave—hopefully, a short time, but po- tentially as long as the entire semester, de- Caplinger filed a complaint against judge, and a federal district court judge all pending on the flu situation and her immune Medtronic in court. In her lawsuit, Caplinger agreed that Luke’s inability to generalize his system. presented evidence of the lengths to which skills demonstrated that the school district had failed to provide him with the free ap- But the university refused to grant her ad- Medtronic went to facilitate off-label use of ditional leave. Their reason? Because they its Infuse product. These included bribing propriate public education required by law. Only the residential program could do that, have a policy that caps a leave of absence at doctors, paying kickbacks for promoting six months, which she had used up. Professor such uses, and funding misleading scientific meaning the district needed to reimburse Luke’s family. Hwang sued them for violating the Rehabili- studies that provided a false impression of tation Act, which requires employers to pro- the safety of these off-label uses. Then Judge Gorsuch stepped in, taking away Luke’s opportunities and risking his vide a reasonable accommodation for some- Nevertheless, writing for a split panel in one’s disability. She was unsuccessful before Caplinger v. Medtronic, Gorsuch agreed with entire future. Writing for a Tenth Circuit panel in the district court. the lower court that every charge of Thompson R2–J School District v. Luke P., The Rehabilitation Act calls for accommo- Caplinger’s state-law lawsuit was preempted Gorsuch ruled in favor of the school district. dation requests to be evaluated on a case-by- by federal law. The dissenting judge agreed They had met their obligation to Luke be- case basis. Every situation is unique, depend- in part, but concluded that Caplinger’s neg- cause all they had to do was provide an edu- ing on any number of factors. That is why ligence and failure-to-warn claims were not cational benefit that was more than de mini- Congress chose not to set a point at which a necessarily preempted. He wrote: ‘‘My dis- mis. That is quite a low bar, one that could leave of absence was no longer a reasonable agreement with the majority opinion does easily prevent Luke and other children from accommodation. not turn on the substance of federal preemp- But when Professor Hwang appealed to the acquiring the critical lifetime skills they tion law. Instead, our disagreement turns on Tenth Circuit, Judge Gorsuch ruled against will need throughout their school years and our respective characterization of her in an opinion very much focused on the for the rest of their lives. Caplinger’s pleadings and understanding of length of time from its very opening (Hwang Fortunately, there is hope: This term, the the proper burden at this stage of the litiga- v. Kansas Sate University (2013)). He set Pro- Supreme Court is considering a different tion.’’ fessor Hwang up to lose in the very first case challenging the ‘‘de minimis’’ standard. All three judges seemed to agree that paragraph. He could have opened the opinion A decision in Endrew F. v. Douglas County Caplinger’s briefs were not written very in a neutral manner by asking whether ex- School District is expected by the end of clearly to address all the facets of the pre- tending her leave would create an undue bur- June. Luke’s family and families across the emption issue. One judge was willing to in- den for the university. Instead, he chose to nation will be looking to the Supreme Court terpret them to give her another chance to frame the legal issue from the university’s to protect their children. perspective, casting the employer as the vic- make her case, but Gorsuch chose to charac- What this article doesn’t note is that terize Caplinger’s pleadings in such a way as tim: to ensure her case would be dismissed. the Supreme Court just handed down a Must an employer allow employees more The executives at Medtronic were very decision 8 to 0 overturning the position than six months’ sick leave or face liability likely very relieved. Judge Gorsuch had in this case. They under the Rehabilitation Act? Unsurprisingly, the answer is almost always This article, ‘‘Real People, Real ruled that the IDEA Act was intended to ‘‘provide an educational benefit that no. Lives: The Harm Caused by Judge Judge Gorsuch concluded that the pro- Gorsuch’’ now turns to address was more than de minimis.’’ Merely fessor simply could not perform the duties of ‘‘Gorsuch and Children with Autism: more than nothing, I believe, was her job without being present on campus, Removing the Chance to Learn Life- Gorsuch’s standard. Merely more than and an accommodation past six months was time Skills.’’ nothing—if you have done that, you not reasonable under the Rehabilitation Act. have met the test. The Supreme Court The Rehabilitation Act seeks to prevent When Congress passed the Individuals With employers from callously denying reasonable Disabilities Education Act, it was a major said: No, the whole point of the act was to provide an appropriate education. It accommodations that permit otherwise dis- step forward in making sure children with qualified disabled persons to work—not to disabilities had a free and appropriate public wasn’t one or two Justices rejecting turn employers into safety net providers for education. But Luke P., a child with autism Gorsuch’s writing, his interpretation of those who cannot work. living in Colorado, was denied this right by the law—basically, his decision to ig- Since Professor Hwang performed work Judge Gorsuch, negatively affecting not just nore the law, which is what he did in while hospitalized to ensure her classes were him but other kids throughout the Tenth his decision. They ruled 8 to 0. They taught effectively in her absence, it is hard Circuit. basically kicked that decision clear to imagine that she could not do any work Luke was two years old when he was diag- from home. She was simply seeking a hope- nosed with autism, and when he entered out of the field of common sense or a fully-short extension of her leave so she school, he had an education plan specific to rational interpretation of what the could do her work in person without risking his needs, as required by IDEA. Between kin- IDEA Act says. So that was a powerful her life. It is also difficult to see how her ef- dergarten and third grade, he made signifi- addition to that story. forts to retain a job she’d excelled at for

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.126 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2272 CONGRESSIONAL RECORD — SENATE April 5, 2017 more than a decade was just an effort to turn and it imposed a financial penalty against problem that could have killed him, and was her employer into [as Judge Gorsuch termed the company. This was upheld by a Tenth fired for it. it] ‘‘a safety net provider.’’ Circuit panel, but with Judge Gorsuch in dis- Not surprisingly, . . . a panel of Tenth Cir- When Professor Hwang was first diagnosed, sent. cuit judges upheld the Labor Department’s she probably had no idea that her treatment While the majority in Compass Environ- actions. But Judge Gorsuch dissented. The would cost her her job. mental v. OSHRC (2011) criticized Gorsuch’s Surface Transportation Assistance Act pro- These are stories from the article, case analysis, perhaps most striking was tects a worker from refusing to operate an ‘‘Real People, Real Lives: The Harm Gorsuch’s decision to open his dissent with unsafe vehicle. an ideological criticism of federal agencies I am now interjecting—which is what Caused By Judge Gorsuch.’’ in general: The next section is titled ‘‘Excessive Administrative agencies enjoy remarkable he did because he refused to drive with Force: Immunity For Police Officer powers in our legal order. Their interpreta- that trailer attached with the frozen Who Kills Young Man Over Marijuana tions of ambiguous statutes control even brakes, which could have endangered Plants.’’ when most everyone thinks Congress really many people on the road. Wilson v. City of Lafayette (2013). meant something else. Their regulations Now I will return to the article. Wendy and Jack Wilson learned about bind as long as they can make the modest . . . a panel of Tenth Circuit judges upheld Gorsuch’s approach to the law the hard way boast that they haven’t behaved arbitrarily the Labor Department’s actions. But Judge when they sought to hold police officer John or capriciously. Their factual findings rule Gorsuch dissented. The Surface Transpor- Harris accountable for needlessly killing the day unless someone can show they have tation Assistance Act protects a worker their son Ryan. Their son had been standing not just erred but clearly erred. from refusing to operate an unsafe vehicle, near an area known for growing marijuana, Gorsuch wrote that this was such a case, but Gorsuch reasoned that the driver wasn’t and he admitted the plants were his. Then he where the agency had erred in finding Com- ‘‘refusing to operate’’ anything at all; in- ran. Officer Harris chased him until Ryan pass had violated the law. But the super- stead, he was choosing to operate the vehicle reached a fence, where he stopped. Officer fluous ideological introduction cast a shadow in a way that he’d been instructed not to. Harris saw Ryan start to reach into his pock- on his entire approach to the case and And that, wrote Gorsuch, isn’t covered by et and warned him not to, in case it held a whether he analyzed it as a disinterested the law. judge or as an anti-government conservative weapon. As Ryan turned to run again, Officer And that is how a person who wants Harris shot him in the back of the head or seeking to use his position on the federal bench to make a political point. Either way, to be a legislator turns the law on its neck with a Taser, killing him. head, to reverse the outcome clearly But in Wilson v. City of Lafayette (2013), if it had been up to Gorsuch, the company re- Judge Gorsuch concluded that Harris hadn’t sponsible for Carder’s death would not have laid out in the law to begin with. used unconstitutionally excessive force, so been held accountable. Back to the article. the parents’ case shouldn’t even go to trial. Well, it wasn’t up to Gorsuch, be- So according to Gorsuch, a law passed to Another judge observed in her dissent that cause the majority of the panel said: protect workers from being forced to drive Gorsuch’s opinion Yes, of course if you put a worker in a unsafe vehicles doesn’t cover workers who . . . fails to give sufficient weight to the highly dangerous situation, you have drive away to avoid the particularly unsafe fact that the Taser used by Officer Harris on the responsibility to train them about situation of death. The law empowers compa- August 4, 2006, had a targeting function, that nies to make workers choose between their Officer Harris fired at Ryan Wilson from that situation. Somehow, Gorsuch jobs and their lives, according to Gorsuch. only ten to fifteen feet away, and the train- managed to find the opposite conclu- Fortunately, Maddin survived his ordeal and ing manual specifically warned officers sion: If you put a worker in a highly Gorsuch’s analysis did not carry the day. against aiming it at the head or throat un- dangerous place and don’t train them, The next section of this article, less necessary. that is OK, even if they die as a result. ‘‘Real People, Real Lives: The Harm Given all this, the Wilsons certainly had a I am reading stories from the article, legal argument of excessive force they Caused By Judge Gorsuch’’—the title is ‘‘Real People, Real Lives: The Harm ‘‘Defer to the Governor, Facts Notwith- should have been able to present at a trial. Caused By Judge Gorsuch.’’ The next But Gorsuch shut that possibility down. standing: Gorsuch Turns a Blind Eye to After losing their son, they lost the oppor- section is, ‘‘Die or Be Fired: The Case an Unlawful Effort to Defund Planned tunity to hold anyone accountable for his of the Frozen Trucker.’’ I have relayed Parenthood.’’ completely unnecessary killing. the facts of this several times since I This is also a case that I have read a So much for ‘‘And Justice For All.’’ began speaking a few hours ago, so I fair amount about in the course of the The next story in this article, ‘‘Real will try to do an abbreviated version of last few hours, so I will just summarize People, Real Lives’’ is ‘‘Worker Dies this. it. Due to Inadequate Training, but TransAm Trucking v. Administrative Re- The Governor of Utah said: Well, Gorsuch Tries to Rule for the Com- view Board (2016). there is this video out, and it is about pany,’’ the case of Compass Environ- While Chris Carder died on the job, Al- phonse Maddin was fired for not dying on the a program in which Planned Parent- mental, otherwise known as the case of job. He was a truck driver hauling cargo in hood sells tissue for research. I don’t the electrocuted miner. subzero weather, and the brakes on his trail- like what they are doing, so I am going Chris Carder also died needlessly, but in er froze. He stopped, called the company to to refuse to provide State funds to this case it was from a workplace accident in report the problem, then waited for a repair Planned Parenthood. which he was electrocuted. Carder worked as person. Unfortunately, the heater in the cab Planned Parenthood basically point- a trench hand at a mine site, which involved of the truck was broken, wasn’t working, so ed this out: Well, first, the video didn’t using rubber and metal hose with a metal after a couple of hours, his body became have anything to do with Utah. Second nozzle to dispense grease. Since there was a numb, his speech was slurred, and he of all, Planned Parenthood in Utah is live power line crossing over the construc- couldn’t feel his feet at all. He called the tion site, the safety training everyone re- company two more times and reported his not involved in this tissue research ceived warned trench hands and others to increasingly perilous state; he was even hav- program, so it had nothing to do with keep at least twenty feet from the powerline. ing trouble breathing. us in that regard. And refusing to pro- However, Carder started on the job a week Maddin unhitched the trailer from the vide State funds to us is unequal treat- after everyone else and, in a decision that truck. With the repair person still not there, ment under the law and unconstitu- had tragic consequences, this safety measure he called the company to let them know he tional. was not included in Carder’s individual was leaving to get help, but he was told not The case was tried, and the judges training. An accident ensued when the nozzle to leave the trailer behind. He was given two was too close to the power line, and Carder choices: Drag the trailer despite its frozen found for Planned Parenthood for all was fatally electrocuted. brakes (either impossible or wildly dan- the reasons I just mentioned. Neither Looking into the accident, the Department gerous), or keep waiting for the repair person the Governor of Utah nor Planned Par- of Labor’s Occupational Safety and Health in the cold and put his own life at risk. enthood saw any reason to appeal this. Review Commission (OSHRC) concluded that Rather than die in the cold, Maddin drove Planned Parenthood had won, and the Carder could have avoided electrocution had off in the truck for help, leaving the trailer Governor recognized that there were he been adequately trained by his employer behind and returning with assistance in seriously strong arguments that had (Compass Environmental) about the highly about 15 minutes. A week later, the company been made. But Gorsuch did something dangerous situation he faced—training that fired him for abandoning his cargo. The the other on-site employees had received. Labor Department found that the company very unusual: He asked the Tenth Cir- OSHRC [Occupational Safety and Health Re- had violated whistleblower protection regu- cuit to reconsider the decision of the view Commission] issued a serious citation lations, since Maddin had reported a prob- three-court panel en banc, which against Compass for inadequate training, lem, not obeyed an order relating to that means with all the judges of the Tenth

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.128 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2273 Circuit. He essentially retried the en- it was not surprising that she wouldn’t con- of the men in her office had lower perform- tire case with a larger group. Gorsuch sider discussing it further. No reasonable ances than Strickland in almost every sales accused the majority of not showing judge can expect a regular person to be suffi- measure, but he was not required to attend ‘‘the sort of comity this court nor- ciently familiar with the details of Colorado meetings to discuss performance, was not de- statutes to know everything about guardian- nied assistance, and was not counseled for mally seeks to show the States and ship that he cites. How would she know this? failing to reach 100 percent in every sales their elected representatives.’’ Gorsuch’s inability to comprehend the measure. Let’s treat the Governor nicely. The worldview of another person is perfectly cap- At the same time, UPS pointed out that job of the court is not to treat the Gov- tured in the footnote to his concurrence. there was one other woman in Strickland’s ernor nicely; the job is to determine office, and she did not report being treated The article says it is worth quoting differently. In addition, there had been one whether someone’s rights have been in full. Here is that footnote: violated or whether someone has suf- man among the staff whose treatment ap- Plaintiffs argue that, in a February 23, 2005 proached that given to Strickland. The dis- fered damage that needs to be com- letter, the State misrepresented its Colorado trict court ruled that she didn’t have a case pensated. law by asking Ms. Barber to sign a document and dismissed it. One of the fellow judges in the major- giving full, not limited, guardianship author- The Tenth Circuit panel of judges who ity criticized Gorsuch’s mischaracter- ity to another person. The letter, however, heard her appeal in Strickland v. UPS (2009) ization of the record, and he noted that simply stated that, for the ‘‘youngest of disagreed. While her employer’s evidence Gorsuch ‘‘mischaracterizes this litiga- drivers just learning to drive,’’ State law re- might have undercut Strickland’s case, she tion and the panel opinion at several quired ‘‘that they be under the direct and had nevertheless presented enough evidence immediate supervision of someone with full for a jury to consider her arguments, con- turns.’’ sider UPS’s arguments, and conclude that The article continues: parental authority.’’ By definition, a limited guardian has full parental authority, albeit she had indeed been subject to unlawful sex It would be hard to estimate how many for prescribed purposes, sometimes even very discrimination. women would have become ill or died if modest purposes (such as the supervision of That is what the 10th Circuit said. Judge Gorsuch had been in the majority. a minor while driving). The State thus did Judge Gorsuch dissented, deciding for him- The next section of this article, not misrepresent to plaintiffs the avail- self that Strickland’s supervisors were not ‘‘Real People, Real Lives: The Harm ability or nature of its limited guardianship motivated by sex discrimination. Therefore, Caused By Judge Gorsuch’’ is titled statutes. Gorsuch concluded, since no reasonable jury ‘‘No Understanding of Another’s Per- Perhaps 95 to 99 percent of the Nation’s could agree with Strickland about the cause spective: The Department Of Motor Ve- population, like Marcia Barber, would not of her treatment, her case should be dis- know that someone with full parental au- missed before she could make her case to a hicles and the Rehabilitation Act.’’ thority could include someone whose only This is the case of Barber v. Colorado. jury. authority is permission to supervise her Everyone deserves their day in court. Ex- Julianna Barber and her mother, Marcia daughter’s driving. A good judge recognizes cept for some people. Barber, learned just how out of touch Judge that different people can reasonably inter- In case after case that I have been Gorsuch could be . . . and the pain that he pret the same thing differently based on would impose on people with disabilities and their different education, upbringings, and talking about in the course of the last their families. Fifteen year-old Julianna life experiences. few hours, we see that the judge said: wanted to practice her driving. Colorado law I think if somebody told me that No, we are going to stop that person restricted her to driving with a parent or they wanted me to grant full parental from ever getting their day in court. guardian with a driver’s license. Since her Generally, the article attacked the mother Marcia was blind and therefore authority to someone else, I certainly would say: Hold on. That is not hap- conduct of a powerful corporation. didn’t have a license, she asked the DMV for The next section of ‘‘Real People, pening. a reasonable accommodation: Let Julianna Real Lives’’ is regarding ‘‘The Most drive with her grandfather. After consulting What Neil Gorsuch points out is that Vulnerable: Children With Disabil- with the State attorney general, the DMV full parental authority can apply to a ities.’’ This case is ‘‘A.F. v. Espanola refused, but suggested that Marcia could very small set of activities, but the Public Schools (2015).’’ give Julianna’s grandfather some form of phrase ‘‘full parental authority’’ im- guardianship. She refused to even discuss The Individuals with Disabilities Edu- signing away her parental rights, and the plies a broad range. How would an ordi- cation Act, IDEA, ensures that students with family sued under the Rehabilitation Act. nary citizen possibly know the point disabilities are provided ‘‘free appropriate Neil Gorsuch is making? And therefore The Barbers lost in the Tenth Circuit public education.’’ Under the law, such chil- I think virtually everybody would re- with a panel consisting of judges nomi- dren have individualized education programs spond the way she did. Full parental designed to provide educational benefits. nated by Ronald Reagan, George H.W. authority—I am going to pass that Congress included a requirement that if a Bush, and George W. Bush in Barber v. away? No, of course not. Why don’t parent believes their child’s needs are not Colorado. The majority acknowledged they call it limited or special cause pa- being addressed, . . . they must first exhaust that the State had discriminated the administrative remedies IDEA makes rental authority? Then maybe an ordi- against Marcia Barber but ruled available before they can go to court. Con- nary person might have some idea. But against her because she refused to ne- gress has also passed other laws relevant to that was not the case. gotiate with the DMV over reasonable children with disabilities, some of which The next section in ‘‘Real People, accommodation. have remedies that IDEA lacks. They also Real Lives: The Harm Caused By Judge require all IDEA administrative remedies to But Judge Gorsuch wrote a concurrence be exhausted first before going to court. going even further: Citing Colorado Revised Gorsuch’’ is titled ‘‘Sex Discrimina- Statute Section 15–14–102(4). Gorsuch pointed tion: Never Mind the Evidence.’’ A.F., a child with dyslexia, had her out that the guardian for purposes of driving Many of the appeals before the 10th Circuit case heard on appeal by Judge Gorsuch does not have to be someone with full guard- involve plaintiffs whose cases were dismissed who read IDEA to limit parents’ op- ianship authority. He also cited Colorado Re- before trial or jury verdict because (the trial tions to most effectively address their vised Statute 15–14–105’s provision that a par- judge ruled) they had not presented enough children’s educational needs. A.F.’s ent can delegate ‘‘any power,’’ however evidence to possibly support their legal mother Christine felt the school hadn’t small, ‘‘regarding care, custody or property’’ claim. That is what happened to Carole adequately assessed her daughter and Strickland, a UPS driver who was promoted of a child to someone else. Therefore, all created an IEP [an Individual Edu- Marcia Barber had to do was find a sheet of to key account executive. She presented evi- paper and write that Julianna’s grandfather dence that she had been the subject of sex cation Plan] for her as IDEA requires. had the right to supervise her driving. She discrimination at the new job and quit under She filed a complaint and reached an wouldn’t need to file the paper in court or go pressure. agreement in which the school recog- through any other formal process. According Her coworkers testified that supervisors nized that A.F. had a disability. Believ- to Gorsuch, this option is available to any- treated her differently than her male col- ing she had met the requirement to ex- one, does not discriminate against anyone leagues. Even though Strickland met be- haust IDEA’s administrative remedies, based on disability. tween 93 and 104 percent of her sales quotas she then went to court to obtain rem- The DMV wasn’t even required to make a and was outperforming at least some of her reasonable accommodation for the family. coworkers on every measure, only she was edies available under statutes like the At no point in the opinion is there any sug- required to attend individual meetings with Rehabilitation Act and the Americans gestion that Marcia Barber understood that the supervisors. Only she had to make writ- with Disabilities Act. the DMV was talking about anything but ten sales commitments, even though no one But in A.F. v. Espanola Public Schools . . . surrendering some of her parental rights, so was at 100 percent of every sales quota. One Judge Gorsuch shut her down. Writing for a

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.130 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2274 CONGRESSIONAL RECORD — SENATE April 5, 2017 divided panel, he ruled that she hadn’t ex- in prison. Williams wanted to accept. How- These are far from being the only people hausted her administrative remedies because ever, his attorney said that if Williams ac- who have been or could have been greatly she had reached a settlement with the school cepted the deal, he (Williams) would be com- harmed by the way Judge Gorsuch ap- district on her IDEA case. To pursue relief mitting perjury and the lawyer would with- proaches cases. When Gorsuch’s view carry available only through statutes other than draw from the case. the day right now, the damage he does is IDEA, he concluded, a parent must refuse to Faced with this terrible legal advice and limited to States covered by the Tenth Cir- resolve the IDEA claim. threat from his attorney, Williams reluc- cuit; he has also been limited by the Su- Judge Mary Beck Briscoe pointed out the tantly rejected the plea deal and went to preme Court precedent he may disagree with. bind Judge Gorsuch was imposing on parents trial. He was found guilty of first-degree Were he to be elevated to the High Court, with children with disabilities, against Con- murder and sentenced to life in prison with- however, he would be in a position to over- gressional intent. out parole. rule precedents that have gotten in his way At the Tenth Circuit, the panel majority Judge Briscoe wrote: over the past 10 years, and the damage he addressed the appropriate remedy for the un- would impose would be nationwide and [Judge Gorsuch’s] interpretation is incon- constitutional ineffective assistance of coun- unreviewable. sistent with the very purpose of IDEA. It sel. While the remedy was not an easy issue Judge Gorsuch may be affable and have forces a claimant to choose between medi- to address, the majority had no difficulty many friends, but that is not at all relevant ating a resolution to her IDEA claim . . . whatsoever in identifying the constitutional to whether he should be confirmed to the Su- and thereby obtaining some or all of the re- violation. Indeed, a state court in Oklahoma preme Court. Few if any of the parties lief sought under IDEA . . . ,or forgoing any had already found that there was a Sixth Gorsuch has unfairly ruled against would relief at all and waiting (while the child ages Amendment violation in this case. feel better knowing that he is reputed to be and potentially continues to receive some- Judge Gorsuch dissented both from the a great guy outside the courtroom. thing other than the requisite ‘‘free appro- panel decision and from the whole court’s de- priate public education’’) in hopes of later cision not to reconsider the case en banc. He So, that is the article ‘‘Real People, filing suit and obtaining relief under both found no constitutional violation in the first Real Lives: The Harm Caused By Judge IDEA and other statutes. place, because he claimed that the right to Gorsuch.’’ So his position just places the parent effective assistance of counsel only covers The next article is from the New in an impossible situation and obvi- the trial, not any pretrial plea bargaining. York Times by Emily Bazelon and Eric Since the trial itself appeared to be fair, ously a good share of the panel dis- Posner from April 1, 2017. No, this was Gorsuch concluded, Williams didn’t have a not an April Fools’ article. This is a se- agreed. Of course there are parallels case. He wrote that ‘‘due process requires a there on that IDEA case to the autism fair trial, not a good bargain.’’ rious article: ‘‘The Government case that we looked at earlier. Cer- A little commentary here: What Gorsuch Wants to Undo.’’ It starts out tainly, in both cases, the judge was not Judge Gorsuch was doing was saying as follows: sympathetic to the role of the family that the Sixth Amendment right to At recent Senate hearings to fill the Su- seeking an appropriate education for legal assistance is only in the case of preme Court’s open seat, Judge Neil Gorsuch their child. In the autism case, the Su- came across as a thoroughly bland and non- the trial, not in the legal work done be- threatening nominee. The idea was to give as preme Court just recently overturned fore the trial starts. That is what is little ammunition as possible to opponents Judge Gorsuch and the principle he as- being referred to by the panel majority when his nomination comes up this week for serted, which is basically all that was as an ‘‘extremely cramped view of the a vote, one that Senate Democrats may try required of the school district was right to counsel.’’ to upend with a filibuster. ‘‘merely more than de minimus,’’ So the article continues: But the reality is that Judge Gorsuch em- merely more than nothing. That is in- The panel majority harshly criticized this braces a judicial philosophy that would do consistent with the whole purpose of extremely cramped view of the right to coun- nothing less than undermine the structure of the IDEA, which is to provide a free ap- sel, noting that it had been rejected by the modern government—including the rules Supreme Court and was ‘‘incompatible with that keep our water clean, regulate the fi- propriate public education. So here nancial markets and protect workers and again, we see much the same attitude [the Supreme Court’s precedents involving] a right to effective assistance of counsel in consumers. In strongly opposing the admin- being displayed, an attitude of rewrit- connection with the entire plea process.’’ istrative state, Judge Gorsuch is in the com- ing the law to be something that it When the circuit without comment declined pany of incendiary figures like the White clearly is not. to reconsider the case en banc, one judge House advisor Steve Bannon, who has called ‘‘The Sixth Amendment: Under- wrote . . . a concurring opinion solely to cor- for its ‘‘deconstruction.’’ The Republican- mining the Right to Counsel. Williams rect the errors in Gorsuch’s dissent. They dominated House, too, has passed a bill de- v. Jones.’’ I am reading another section cited the Supreme Court’s prior holdings and signed to severely curtail the power of fed- eral agencies. from ‘‘Real People, Real Lives: The statements that would have made no sense if the Sixth Amendment’s right to counsel Businesses have always complained that Harm Caused By Judge Gorsuch.’’ didn’t apply at the pretrial plea-bargaining government regulations increase their costs, Perhaps no government power is more awe- stage. and no doubt some regulations are ill-con- some—and more dangerously susceptible to The Sixth Amendment protects both the ceived. But a small group of conservative in- abuse—than the right to imprison someone, guilty and the innocent. Judge Gorsuch’s tellectuals have gone much further to argue completely taking away their freedom. Be- narrow interpretation is particularly fright- that the rules that safeguard our welfare and cause our liberties require robust protection, ening in the age of Trump. the orderly functioning of the market have the Bill of Rights establishes certain require- That concludes that section. But it been fashioned in a way that is not constitu- ments that the government must meet be- certainly is disturbing that Neil tionally legitimate. This once-fringe cause of fore it is allowed to exercise its authority to the right asserts, as Judge Gorsuch put it in lock any of us away. Since the criminal law Gorsuch made a decision that com- a speech last year, that the administrative can be used mistakenly or even inappropri- pletely disregarded the Supreme Court state ‘‘poses a grave threat to our values of ately against anyone, these procedural re- precedents and made no sense because personal liberty.’’ quirements are guarantors of our freedom. when you have a lawyer, that lawyer is The 80 years of law that are at stake began The Founders recognized that unjustified assisting you through the legal proc- with the New Deal. President Franklin D. imprisonment would be less likely if each ess. Part of that is the negotiation that Roosevelt believed that the Great Depression criminal defendant had someone advocating occurs before you are actually in court. was caused in part by the ruinous competi- for them who knew the law inside and out. It is all part of the process of your case tion among companies. In 1933, Congress Hence, the Sixth Amendment guarantees passed the National Industrial Recovery Act, that the criminally accused ‘‘shall enjoy the being considered. To try to put up a which allowed the president to approve ‘‘fair right . . . to have the Assistance of Counsel wall and say the Sixth Amendment competition’’ standards for different trades for his defence.’’ As a constitutional provi- does not apply to any of the legal work and industries. The next year, Roosevelt ap- sion that is part of the Bill of Rights, this in- done, including negotiations over a po- proved a code for the poultry industry, dicates that, as a nation, we believe that no tential plea, makes no sense. which, among other things, set a minimum one should be stripped of their freedom just So you have Judge Gorsuch writing wage and maximum hours for workers, and because they are not experts in the law. his own law, ignoring the Supreme hygiene requirements for slaughterhouses. But Judge Gorsuch appeared to disagree, Court precedents, and being rep- Such basic workplace protections and con- as he showed in 2009 case of Williams v. rimanded, in essence, by the panel ma- straints on the free market are now taken Jones. In this case, Michael Williams was for granted. being prosecuted for first-degree murder. jority. But in 1935, after a New York City slaugh- The prosecution offered him a deal which he Returning to the article, ‘‘Real Peo- terhouse operator was convicted of violating would plead guilty to a lesser crime (second- ple, Real Lives,’’ the conclusion of the the poultry code, the Supreme Court called degree murder) and he would serve ten years article reads as follows: into question the whole approach of the New

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.132 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2275 Deal, by holding that the N.I.R.A. was an reached the Supreme Court, he declared him- The next article I will share with you ‘‘unconstitutional delegation by Congress of self a Chevron fan. ‘‘In the long run Chevron is an editorial from November 7, and I a legislative power.’’ Only Congress can cre- will endure,’’ Justice Scalia wrote in a 1989 believe the other is from December 24 ate rules like the poultry code, the justices article, ‘‘because it more accurately reflects said. Because Congress did not define ‘‘fair the reality of government, and thus more of 2016. This is by the editorial board of competition,’’ leaving the rulemaking to the adequately serves its needs.’’ the New York Times, and it reads as president, the N.I.R.A. violated the Constitu- That was then. But the Reagan administra- follows: tion’s separation of powers. tion’s effort to cut back on regulation ran People don’t usually remember it this way, The court’s ruling in the Shechter Poultry out of steam. It turned out that the public but on December 13, 2000, Vice President Al Corp. v. the United States, along with an- often likes regulation—because it keeps the Gore gave one of the most important speech- other case decided the same year, are the air and water clean, the workplace safe, and es in American history. Mr. Gore had con- only instances in which the Supreme Court the financial system in working order. De- tested initial results of the Florida vote has ever struck down a federal statute based regulation of the financial system led to the count and prevailed in Florida State courts, on this rationale, known as the ‘‘nondelega- savings and loan crisis in the 1980s and the but the Supreme Court had voted 5-to-4 the tion doctrine.’’ Shechter Poultry’s stand financial crisis a decade ago, costing tax- day before to end the recount and effectively against executive-branch rulemaking proved payers billions. hand the presidency to George W. Bush. to be a legal dead end, and for good reason. Businesses, however, have continued to ‘‘Now the U.S. Supreme Court has spoken,’’ As the court has recognized over and over, complain that the federal government regu- Mr. Gore said. ‘‘Let there be no doubt, while before and since 1935, Congress is a cum- lates too much. In the past 20 years, conserv- I strongly disagree with the court’s decision, bersome body that moves slowly in the best ative legal scholars have bolstered the red- I accept it.’’ The frenzied battle over a few tape critique with a constitutional one. They of times, while the economy is an incredibly hundred votes had spawned intense anger argued that only Congress—not agencies— dynamic system. For the sake of business as across the country—but it had been resolved can create rules. This is Shechter Poultry all well as labor, the updating of regulations ‘‘as it must be resolved, through the honored over again. can’t wait for Congress to give highly spe- And Judge Gorsuch has fortunately joined institutions of our democracy.’’ Mr. Gore’s concession that night still cific and detailed directions. in. Last year, in a concurring opinion in an The New Deal filled the gap by giving pol- immigration case called Gutierrez-Brizuela stands as the most powerful reaffirmation in icy-making authority to agencies, including v. Lynch, he attacked Chevron deference, modern times of the Supreme Court’s unique the Securities and Exchange Commission, writing that the rule ‘‘certainly seems to and fragile role in the American system of which protects investors, and the National have added prodigious new powers to an al- government. Millions of people were furious Labor Relations Board, which oversees bar- ready titanic administrative State.’’ Re- in the justices’ decision in Bush v. Gore— gaining between unions and employers. markably, Judge Gorsuch argued that Chev- many believed it was the result not of legal Later came other agencies, including the En- ron—one of the most frequently cited cases reasoning but of rank partisanship—and yet vironmental Protection Agency, the Occupa- in the legal canon—is illegitimate in part be- virtually everyone followed Mr. Gore’s self- tional Safety and Health Administration cause it is out of step with (you guessed it) less lead, accepted the court as the final ar- (which regulates workplace safety) and the Shechter Poultry. Never mind that the Su- biter of the dispute, and moved on. There Department of Homeland Security. Still preme Court has not since relied on its 1935 were no riots in the streets, no attempted other agencies regulate the broadcast spec- attempt to scuttle the New Deal. Nonethe- coups, no ‘‘Second Amendment solutions.’’ trum, keep the national parks open, help less, Judge Gorsuch wrote that in light of There was, instead, a peaceful transfer of farmers and assist Americans who are over- Shechter Poultry, ‘‘you might ask how is it power: the hallmark of a civil society oper- seas. Administrative agencies coordinated that Chevron—a rule that invests agencies ating under the rule of law. the response to Sept. 11, kept the Ebola out- with pretty unfettered power to regulate a Sixteen years later, the Supreme Court break in check and were instrumental in the lot more than chicken—can evade the chop- sits crippled, unable to resolve the most last financial crisis. They regulate the safety ping block.’’ pressing legal questions before the country. of food, drugs, airplanes, and nuclear power At his confirmation hearings, Judge Two events—the sudden death of Justice plants. The administrative state isn’t op- Gorsuch hinted that he might overturn Antonin Scalia in February and the unprece- tional in our complex society. It’s indispen- Chevron without saying so directly, noting dented refusal of Senate Republicans to even sable. that the administrative state existed long consider President Obama’s pick to fill the I am reading from the article ‘‘The before 1984. The implication is that little vacant seat—have converged to throw the Government Gorsuch Wants to Undo’’ would change referring to the E.P.A.’s or De- court’s future as a functioning institution partment of Labor’s reading of a statute. into doubt. by Emily Bazelon and Eric Posner. It Judges would interpret the law. Who would This scenario would have seemed unimagi- continues: object to that? nable a year ago. But Tuesday’s vote—for But if the regulatory power of this arm of But here’s the thing: Judge Gorsuch president and for control of the Senate—will government is necessary, it also poses a risk is skeptical that Congress can use determine whether the court remains short- that federal agencies, with their large bu- handed for months or, as Republicans are reaucracies and potential ties to lobbyists, broadly written laws to delegate au- now threatening if they hold the Senate, for could abuse their power. Congress sought to thorities to agencies in the first place. years. address that concern in 1946, by passing the That can mean only that at least por- Last month, Senator Richard Burr, of Administrative Procedure Act, which en- tions of such statutes—the source of so North Carolina, told supporters that if Hil- sured a role in the judiciary in overseeing many regulations that safeguard Amer- lary Clinton wins, ‘‘I am going to do every- rule-making by agencies. icans’ welfare—must be sent back to thing I can to make sure four years from The system worked well enough for dec- Congress, to redo or not. now, we still got an opening on the Supreme ades, but questions arose when Ronald Court.’’ Senator Ted Cruz of Texas suggested On the current Supreme Court, only Jus- Reagan came to power promising to deregu- he was happy with the current situation, and tice Clarence Thomas seeks to strip power late. His EPA sought to weaken a rule, from the administrative state by undercut- said, ‘‘There is certainly long historical issued by the Carter administration, which ting Chevron and even reviving the obsolete precedent for a Supreme Court with fewer called for regulating ‘‘stationary sources’’ of and discredited nondelegation doctrine, as he justices.’’ Even Senator John McCain, who air pollution—a broad wording that is open explains in opinions approvingly cited by once joined with Democrats in an effort to to interpretation. When President Reagan’s Judge Gorsuch. But President Trump may depoliticize the judicial nomination process, EPA narrowed the definition of what count- well appoint additional justices, and the recently told a radio show, ‘‘I promise you ed as a ‘‘stationary source’’ to allow plants other conservatives on the court have ex- that we will be united against any Supreme to emit more pollutants, an environmental pressed some uneasiness with Chevron, Court nominee that Hillary Clinton, if she group challenged the agency. The Supreme though as yet they are not on board for over- were President, would put up.’’ Court held in 1984 in Chevron v. Natural Re- turning it. What would happen if agencies Step back for a moment and consider the sources Defense Council that the EPA and could not make rules for the financial indus- radical absurdity of this position. Senate Re- any agency could determine the meaning of try and for consumer, environmental and publicans first justified their refusal to hold an ambiguous term in the law. The rule workplace protection? Decades of experience hearings or a vote on Mr. Obama’s nominee came to be known as the Chevron deference: in the United States and around the world before the presidential election because ‘‘the When Congress uses ambiguous language in a teach that the administrative state is a nec- people’s voice’’ needed to be heard. That was statute, courts must defer to an agency’s essary part of the modern market economy. always a transparent lie. Now, apparently reasonable interpretation of what the words With Judge Gorsuch on the Supreme Court, believing their candidate, Donald Trump, mean. we will be one step closer to testing that will lose, they are acting as though the Su- Chevron was not used as a left-leaning de- premise. preme Court is the property of the Repub- cision. The Supreme Court decided in favor lican Party. of the Reagan administration, after all, vot- That is the conclusion of the New This mind-set isn’t just a matter of a few ing 6 to 0 (three justices did not take part), York Times article ‘‘The Government senators going rogue. Leading conservative and spanning the ideological spectrum. After Gorsuch Wants to Undo’’ by Emily groups are embracing the argument, happy the conservative icon Justice Antonin Scalia Bazelon and Eric Posner, dated April 1. to destroy a principle of American politics—

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.134 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2276 CONGRESSIONAL RECORD — SENATE April 5, 2017 to privilege partisanship over the Constitu- regardless of who wins on Tuesday, the very Russians broke into computers to ob- tion itself. Ilya Shapiro, a senior fellow at survival of the court as an independent body tain information and worked to release the influential Cato Institute, wrote two will be at stake. it in a fashion that was designed to weeks ago that ‘‘it would be completely de- I certainly agree that the very sur- damage the Presidential nominee from cent, honorable, and in keeping with the vival of the Court as an independent Senate’s constitutional duty to vote against the Democratic Party. essentially every judicial nominee’’ a Presi- body is at stake right now. That is why That is a pretty comprehensive strat- dent Clinton would name. Last Thursday, I am here on the floor at 4:20 in the egy of fake news and fake social media the Vice President of Heritage Action for morning. It is because so much is at comments and botnet-generated com- America, a top conservative think tank, said stake in terms of the legitimacy of the ments and breaking into computers to Senators McCain, Burr and Cruz were taking Court. secure information and release it in a ‘‘exactly the right position,’’ and that an ef- This is probably a good moment to fashion to damage the Democratic fective, long-term blockade of the court will return to the central premise of where nominee, Hillary Clinton. We will learn require ‘‘an immense amount of willpower’’ we are. Where we are is that for the from Senate Republicans. more about all of those things, but A small number of Republican senators first time in U.S. history, a seat has that is a pretty good list of serious at- have expressed discomfort with this idea, but been stolen from one President and de- tacks on the United States of America, when was the last time public interest won livered to another in a Court-packing attacks on the integrity of our elec- out in today’s Republican Party? scheme. If that were to succeed, it toral system. The indefinite blockade not only hobbles would set a precedent that would haunt What we do not know—and why there the justices’ ability to resolve current cases, the Court for decades to come, and it it takes open aim at the court’s legitimacy are investigations underway—is how as the sole unelected branch of government. will haunt this body, the Senate, be- much the Trump campaign commu- Because the court ‘‘has no influence over ei- cause if a theft succeeds, then it nicated with and conspired with that ther the sword or the purse,’’ as Alexander changes the analysis of every future Russian operation. Each day, drip by Hamilton wrote in the Federalist Papers, its Supreme Court vacancy. drip, we hear more about some contact. legitimacy and authority depend entirely on If there is a vacancy and it is an op- This morning, it was the media and the the shared public acceptance of its verdicts. portunity for the Democrats to steal a Seychelles that we did not know about Today’s Republicans are essentially saying seat back and deliver it to a future previously. Every day, it seems like the court is nothing but another political President who might be a Democrat, body, and that justices should be treated as there is one little additional piece, and ideological sock puppets of the president will they do so, and would they be we do not know where it will all lead who nominated them. Yes, the justices come right in doing so—to rebalance the to, if anywhere. Maybe it leads no- with political beliefs and backgrounds, but Court after a seat has been stolen? We where, but we must pursue it because if that makes it all the more important to de- should never have to ask these ques- anyone conspired with the Russians to mand that they work harder than the rest of tions—questions such as, if you can undermine the integrity of our elec- us to struggle and preserve their independ- steal a seat and get away with it, when tions and change the outcome of the ence. This is why, for instance, Justice Ruth a seat becomes vacant a year before a elections, that is traitorous conduct, Bader Ginsburg was wrong to comment on President leaves office, can you do it 2 Mr. Trump’s candidacy—words for which she and it must be prosecuted to the full later apologized. years before the President leaves of- extent of the law. Until this year, no one disputed that the fice? Can you do it for 3 years? Can you Right now, we do not know a lot president should have wide latitude in pick- keep a seat vacant for 4 years, as sug- about how much communication and ing justices. In 1993, Senate Republicans gested by the article I just read and the how much potential collaboration or voted overwhelmingly in favor of Justice comments of some of my colleagues in conspiracy there was, so we have inves- Ginsburg, President Bill Clinton’s first nomi- that they would be determined to re- tigations to get to the bottom of it. nee. And even though they voted in large ject any nominee put forward by Hil- The FBI has an investigation into it, as numbers against Mr. Obama’s first two nominees, Sonia Sotomayor and Elena lary Clinton? These questions are being well as the House Intelligence Com- Kagan, they did not try to block those nomi- asked because of this crime against our mittee and the Senate Intelligence nations from going forward. Senate Demo- Constitution—the crime of stealing a Committee, and we should not be con- crats voted unanimously to confirm Ronald Supreme Court seat in an effort to sidering this nomination while those Reagan’s choice of Justice Scalia in 1986 and pack the Court. investigations are underway. allowed full votes on Robert Bork and Clar- The second big issue we are facing is Of course, a third significant reason ence Thomas, both of whom they strongly the investigations underway of the that we should not be pursuing this is opposed. Trump campaign and its possible co- In 2016, Republicans have blown this deli- that the President failed to recognize cate balance to pieces, all to keep a conserv- ordination with the Russians to change the role of the supermajority require- ative majority. Of course, the court has had the outcome of the election. ment—the 60-vote requirement—that a majority of Republican-appointed justices We know a lot about what the Rus- anyone who serves on the Supreme for nearly half a century, through the nor- sians did. We know they created false Court should be able to get bipartisan mal processes of advice and consent. But news stories. We know they had a team support from 60 Members. Therefore, now, Republicans want to maintain that ma- estimated to be 1,000 individuals in a nominating somebody from the far jority, even if that means tossing out all po- building, doing social media to amplify right, the extreme right, and all of the litical norms. This majority, they hope, the impression that Americans were opinions we have talked about over the would promote a world view where fewer peo- writing negative comments about Hil- ple have rights, where women do not have re- last many hours are related to crush- productive choices, where lawmakers can lary Clinton. We know they had a sys- ing the rights of individuals and help- make it harder for minorities to vote, where tem of bots—a botnet, if you will—to ing the most powerful. Certainly an in- religious people are free to disregard laws use computers to respond and add com- dividual who is at that far point in the protecting people they don’t like. Such a mentary on comments people were spectrum is not from the mainstream court could use a severe interpretation of the making on social media so that it of judicial thinking. It is another rea- Constitution to ensure that American poli- looks like there are far more people— son this should be set aside. tics can be flooded with unlimited money, far more disgruntled individuals—who Then we have that information that that reasonable gun restrictions are struck were criticizing the Democratic nomi- down, that corporate interests prevail over came out at about 11 p.m., earlier this 1 those of consumers, and that basic environ- nee. We know that their strategy in- evening, Tuesday time. Now we are 5 ⁄2 mental regulations are turned back. volved trying to influence the outcome hours later, but the information was Make no mistake: That is the court Ameri- in terms of groups like Facebook, iden- about the number of cases in which cans would get under a President Trump. tifying something as ‘‘trending’’ and Neil Gorsuch had lifted passages from Still, Senate Democrats would have an obli- then putting it up as ‘‘trending news’’ others virtually word for word without gation to consider and vote on his nominees, so that the false news, now being driv- giving them credit. That is known as just as Republicans would have that obliga- en by the thousand social media folks tion to Mrs. Clinton’s choices. No doubt, plagiarism. Hopefully, that issue will there would be Democratic voices demanding in some building and the botnet, is am- get a fair amount of attention and be that their Senators mimic the Republicans’ plified to the degree that it is now examined closely. shameful example. But the Constitution asks scrolling on your Facebook, looking The next article I am going to read is more of us than that. In the next Congress, like very legitimate news. We know the in the Sunday Review, December 24,

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.136 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2277 2016, entitled ‘‘The Stolen Supreme be for Mr. Trump to renominate Mr. Gar- If Antonin Scalia died today, and Donald Court Seat.’’ land. Conservatives will scoff, but they know Trump thereafter nominated Judge Neil he is as qualified for the job as anyone in the Gorsuch as his successor, I might support Soon after his inauguration next month, country. When Mr. Garland was floated as a Judge Gorsuch’s confirmation. Although President-elect Donald Trump will nominate possible choice for the Supreme Court in Judge Gorsuch has not yet established him- someone to the Supreme Court, which has 2010, Orrin Hatch, the senior Republican Sen- self as a jurist of any distinction, he is gen- been hamstrung by a vacancy since the ator from Utah, called him a ‘‘consensus erally regarded as a capable judge with good death of Justice Antonin Scalia in February. nominee’’ and said there was ‘‘no question’’ character. Moreover, although he is a very There will be public debates about the nomi- that he would be confirmed with bipartisan conservative jurist, he will be replacing a nee’s credentials, past record, judicial phi- support. That’s partly why Mr. Obama nomi- justice with a similar ideological disposition. losophy and temperament. There will be Sen- nated him this time, and also why Mr. In such circumstances, just as I supported ate hearings and a vote. McConnell denied him a hearing—he knew he the confirmation of Judge John Roberts to No matter how it plays out, Americans couldn’t prevent a Senate vote once Ameri- succeed Chief Justice William Rehnquist, so must remember one thing above all: The per- cans saw an eminently qualified and reason- too would I be inclined to support the nomi- son who gets confirmed will sit in a stolen able jurist testify on live TV. nation of Neil Gorsuch to succeed Antonin seat. At the very least, Mr. Trump could follow Scalia, even though I strongly disagree with It was stolen from Barack Obama, a twice- President Obama’s example and pick a cen- Gorsuch’s very conservative ideology. elected President who fulfilled his constitu- trist—someone who commands wide respect But Antonin Scalia did not die today. He tional duty more than nine months ago by and operates within the bounds of main- died almost a year ago, and President nominating Merrick Garland, a highly quali- stream legal thought. That would be an ap- Barack Obama nominated Judge Merrick fied and widely respected federal appellate propriate gesture from a man who lost the Garland to succeed him. Chief Judge Garland judge. popular vote by more than 2.8 million votes is a jurist of impeccable credentials and per- It was stolen by top Senate Republicans, and will enter office with the lowest ap- sonal character who is widely celebrated for who broke with longstanding tradition and proval ratings in recent history. his moderate approach to the law. President refused to consider any nominee Mr. Obama The shameful, infuriating actions of the Obama nominated Garland not only because might send them because they wanted to Senate Republicans won’t be ignored in the of his distinguished reputation as a jurist, preserve the court’s conservative majority. history books. In a desperate effort to keep but also because as a relatively moderate The main perpetrators of the theft were a conservative majority in the court, they judge, he should have been more than accept- Mitch McConnell, the majority leader, and rejected their own professed values of pre- able even to the most conservative Senate Charles Grassley, chairman of the Judiciary serving American institutions. There’s little Republicans. In typical Obama fashion, Gar- Committee. But virtually all Republican hope they will come to their senses now, but land’s nomination was an effort to com- Senators were accomplices; only two sup- they and Mr. Trump have the power and the promise in order to win the support of Sen- ported holding hearings. obligation to fix the mess they have created. ate Republicans. The Republican Party line—that it was an That is the article ‘‘The Stolen Su- Chief Judge Garland should have been con- election year, so the American people should preme Court Seat,’’ an editorial from firmed easily. Indeed, every Supreme Court have a ‘‘voice’’ in the selection of the next nominee in living memory with anything ap- justice—was a patent lie. The people spoke the Sunday Review of the New York proaching Chief Judge Garland’s impeccable when they re-elected Mr. Obama in 2012, en- Times. credentials and record of moderation has trusting him to choose new members for the I do hope that there is a path in been easily confirmed by the Senate, without court. And the Senate has had no problem which this damage can be avoided be- regard to whether the Senate was controlled considering and usually confirming election- cause it is enormously significant to by the President’s party or by the opposing year nominees in the past. confirm a Justice when the seat has party. This was true, for example, of such Of course, Supreme Court appointments been stolen. It is enormously damaging Republican nominees to the Court as Warren have always been political, and the court’s to confirm a Justice when the Presi- Burger, Harry Blackmun, Lewis Powell, Wil- liam Rehnquist, John Paul Stevens, Sandra ideological center has shifted back and forth dent’s team is under investigation for over time. But the Senate has given nomi- Day O’Connor, Anthony Kennedy, and David nees full consideration and a vote even when possible collusion with the Russians. It Souter. Even the extremely conservative the party in power has opposed a president’s is enormously a big deal to confirm Antonin Scalia was confirmed by a vote of choice. That is, until this year, when Repub- someone way out of the mainstream of 98–0. licans claimed that though the Constitution judicial thought in America. But not Merrick Garland. In a completely calls for the Senate’s ‘‘advice and consent,’’ So should this progress, should we unprecedented abuse of power, Senate Re- Senators aren’t obligated to do anything. find that there are 41 individuals who publicans, under the ‘‘leadership’’ of Senate Majority Leader Mitch McConnell, refused to This is a bad-faith reading of that clause, will stand up for our institutions and even if there is no clear way to force a vote. confirm, or even to consider, Judge Gar- block this nomination under the fili- land’s nomination. This unconscionable ma- It certainly obliterates a well-established po- buster tradition, the 60-vote tradi- litical norm that makes a functioning judi- neuver was nothing less than a dishonorable cial branch possible. As Paul Krugman wrote tion—60 votes required to proceed—we and dishonest effort to steal this seat on the in his column on Monday, institutions are will have the question of whether we Supreme Court for the right wing. Senator McConnell had the audacity to not magically self-sustaining, and they are going to change the rule or change maintain that the ‘‘people’’ should decide ‘‘don’t protect against tyranny when power- the nominee. And always in the past, who should fill this particular vacancy. By ful people start defying political norms.’’ when the Senate rejected in any fash- employing his duplicitous strategy, he man- This particular norm is of paramount im- ion, including closing debate on a mo- aged to shift this appointment from a Presi- portance because the court’s institutional le- tion to proceed, a nominee by tabling dent who had won the popular vote by a mar- gitimacy depends on its perceived separation them—rejected a nominee by voting gin of five million votes in 2012 to one who from the elected branches—a fragile concept them down—the answer was to change lost the popular vote by a margin of three in the best of times. By tying the latest ap- million votes in 2016. This crass and unprin- pointment directly to the outcome of the the nominee, to protect the integrity of the Court. cipled manipulation of our democracy should election, Mr. McConnell and allies took a not be allowed to succeed. torch to that idea—an outrageous gambit I think the advice in the December 24 Anyone who cares about the proper and le- that, to nearly everyone’s shock, has paid editorial, ‘‘Stolen Supreme Court gitimate functioning of our American de- off. But while Republicans may be cele- Seat,’’ which calls on the President to mocracy must oppose Judge Gorsuch’s nomi- brating now, the damage they have inflicted nominate a centrist, is terrific advice nation, not because he is necessarily un- on the confirmation process, and on the because it may give a chance for heal- qualified, but because of the undermining of court as an institution, may be irreversible. our American democracy by Senate Repub- The slope is both slippery and steep. If Re- ing to take place. But there will be no healing if the seat is filled by Neil licans. Anyone who cares about the rule of publicans can justify an election-year block- law must oppose this nomination. If we fail ade, what’s to stop Democrats in the future Gorsuch—a seat that belonged to Presi- to take this stand, the Senate Republicans from doing the same? For that matter, why dent Obama under the Constitution of will have succeeded in placing a justice onto should the party controlling the Senate ever the United States of America, a seat our highest Court who has no business being allow a President of the opposing party to that was stolen for the first time in there. They will have undermined the credi- choose a justice? Indeed, in the weeks before U.S. history. That dynamic will haunt bility of the Supreme Court as an institu- the election, Senate Republicans were us for a very, very long time. tion, an institution that is critical to the threatening, with the encouragement of This editorial is from January 31 functioning of our Constitution. leading conservative thinkers, never to con- Judge Gorsuch’s nomination should be firm anyone to fill the vacancy if Hillary from Time Magazine, entitled, ‘‘Sorry, withdrawn, and the President should nomi- Clinton won. Neil Gorsuch, the Supreme Court Va- nate in his place a genuinely moderate jus- Can anything be done to repair the harm? cancy was Already Filled,’’ and written tice who is acceptable to Democrats and Re- One step—as obvious as it is unlikely—would by Geoffrey Stone: publicans alike. Only then can we move on

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.138 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2278 CONGRESSIONAL RECORD — SENATE April 5, 2017 with a sense of institutional integrity. Short of shifting the Court’s ideology, so they put What will this mean for the Supreme of that, every decision of the Court decided up a united obstructionist front and never Court? Filling this seat will put a younger by a margin of five-to-four with Neil Gorsuch wavered in saying they would not confirm an conservative in Justice Scalia’s seat. It will in the majority will justifiably be castigated Obama appointee this year. dash liberals’ hope of a new progressive Su- as fundamentally illegitimate. President Obama, as he often does, thought preme Court and likely continue its recent That was in Time Magazine, by Geof- he could break through the Republican wall history as one of, if not the most, conserv- frey Stone, and op-ed opinion editorial by trying to appease them. Instead of nomi- ative Courts in American history. nating a young liberal firebrand or a judicial However, the Court will still have Justice entitled, ‘‘Sorry, Neil Gorsuch, the Su- first, he nominated a well-respected but Kennedy as the swing justice. preme Court Vacancy Was Already moderate, not-young white male: Merrick Obviously, this was written before Filled.’’ Garland. Obama thought Garland, who had the nomination of Neil Gorsuch. It This commentary is from Rolling been praised throughout his career by politi- Stone, entitled, ‘‘Grand Theft Judici- cians on both sides of the aisle, would be notes that if Republicans go nuclear, ary: How Republicans Stole the Su- unobjectionable and would break the logjam. there is almost nothing the Democrats preme Court.’’ It is subtitled: ‘‘Pray The president couldn’t have been more can do to stop it. That is certainly wrong. Without any interest group to that Ruth Bader Ginsburg and her fel- true. We don’t have a mechanism that cheerlead his cause, Garland was quickly for- can prevent this body from reinter- low liberal justices stay healthy and gotten and faded into the distant back- don’t retire,’’ by David Cohen, written preting the application of its rules. ground of American politics. As a result, It happens in a very simple fashion. in November of 2016. there was no movement whatsoever, and Garland’s nomination has lingered with no A Member asks for a ruling of the The Republicans just pulled off one of the Chair on whether the super majority greatest heists in American political his- action longer than for any nominee in his- tory—they stole a Supreme Court justice. tory. provision to close debate applies to Since 1789, there have been 112 justices on During the campaign, Democrats occasion- closing debate on Senate nominees. the Supreme Court. Having the opportunity ally brought up this issue, trying to paint The Chair consults with the Parlia- to appoint a new justice is one of the prize Republican senators as obstructionist and mentarian and probably says: Yes, it opportunities for a president. With the right against good government. But the issue does clearly apply. Then the majority young justice, a president can influence never stuck in Senate races, and Hillary Clinton never really led the charge over the leader challenges the ruling of the American law and society for decades to Chair. If 51 folks vote to overturn the come. For instance, Anthony Kennedy, the Supreme Court either. As a result, according current ‘‘swing justice’’ on the Court, was to an ABC exit poll, of the 21 percent of ruling of the Chair, that is it. The appointed by President Reagan. Since he sits Americans who said the Supreme Court was precedent is then set. The super- in the ideological middle of this current the most important factor in their vote, 57 majority does not apply to Supreme court, Kennedy’s views on the law often de- percent of them voted for Trump and only 40 Court nominees, to closing debate on termine how American justice work. And for percent voted for Clinton. Supreme Court nominees. It is that that, we owe thanks to a president who was Now that Trump is president-elect, he’s going to have the opportunity to fill Justice simple. It is not a change in the rules. last elected 32 years ago and has been dead Scalia’s seat; even though it means the Su- The Senate rules require a super- since 2004. That’s the power of a Supreme preme Court will remain short-handed for majority to change the rules. It has Court appointment. These opportunities are often completely months longer, there’s no chance in hell Re- just not always been helpful. It has unpredictable. Justices are appointed for publicans will do anything to move Gar- meant that the Senate has not ad- life, so they leave their position only when land’s nomination between now and inau- justed to the changing culture of the they retire or die. Sure, a president can guration day. They want their stolen prize, Senate to keep it functional. A lot of make an educated guess about particular and they’ll wait for it. Trump has given a list of 21 possible jus- the time, State legislatures are far justices’ life expectancies or end-of-career tices he would nominate, all of whom have more functional than the U.S. Senate plans, but knowing exactly when a justice is varying pedigrees as conservatives. If he fol- because when they have problems de- going to leave the Court is out of the presi- lows through and nominates someone from dent’s control. velop as the culture changes or people When Justice Scalia died suddenly in Feb- that list, the Democrats could respond with develop new tactics for obstruction, ruary, President Obama was gifted the op- a similar blockade. Though the Republicans they adjust the way they operate in portunity to fill his third seat on the Court. still control the Senate, and thus would be order to make sure they can keep mak- He had previously replaced David Souter able to move the nominee through the judici- ary committee to a floor vote, Democrats ing decisions. with Sonia Sotomayor and John Paul Ste- It is not unusual in my home State in vens with Elena Kagan. Neither of those ap- could try to filibuster. A filibuster requires 60 votes to break, so the 52 Republicans in Oregon for us—that is, the body in the pointments shifted the Court’s ideological house or the senate in Oregon—to con- balance, as in each case Obama replaced, the Senate would not be able to stop it. There are two problems with this plan, broadly speaking, a judicial liberal with an- sider 8 or 10 bills in a day. With a bill though. First, Democrats have been less uni- other liberal. Replacing Scalia, on the other raised, everybody who wants to speak fied in the past when it comes to opposition hand, was going to be a monumental shift in to it for 5 minutes or less gets to speak than the Republicans have been, and the the Court. Scalia was one of the most con- to it. Then there is a vote, it is decided, Democrats would need to make sure no more servative justices in the history of the Su- than seven Senators broke ranks. With sev- and we go on to another. There is more preme Court. An Obama replacement would eral Dems up for reelection in 2018 in very conversation sharing of viewpoints on give the Court its fifth liberal and shift it to conservative states, that’s something that the floor of the Oregon House in the the left in historically significant ways. may be more difficult than it should be. course of a single day than there is a President Obama and Democrats were sali- Second, the Republicans may opt to get rid sharing of views and debate on the vating at the opportunity. of the filibuster altogether. This option, The Republicans, though, were having floor of the Senate in an entire year. commonly referred to as the ‘‘nuclear op- none of it. Through unflinching and unified We have, basically, completely lost tion,’’ would eliminate the filibuster as a obstructionism combined with Tuesday’s tool for Supreme Court nominees. Because of anything resembling a conversation election of Donald Trump, they succeeded in Republican opposition during the Obama about any issue before the Nation here stealing a seat right out from under Presi- years, the Democrats eliminated the fili- on the floor of the Senate. That is a dent Obama’s nose. It was a staggering case buster for lower court justices when they tragic situation. It could be changed if of grand theft judiciary. This all started almost immediately with controlled the Senate. However, they kept it we changed the way that we operate. Scalia’s death, with the Republicans claim- for Supreme Court nominations because they (Mrs. ERNST assumed the Chair.) ing a new theory that a president should not understood just how controversial and seri- The L.A. Times editorial board wrote be able to appoint a justice during an elec- ous such a move would be. an essay titled: ‘‘It’s not Neil Gorsuch’s tion year; rather, the people should be al- The author continues: fault, but we can’t support his ascen- lowed to speak and decide on the direction of I have no expectation that the Republicans sion to a stolen Supreme Court seat.’’ the Court, they said. Never mind that jus- would do the same. They have been laser fo- As we can see from this series of arti- tices have been confirmed regularly through- cused on wrestling this nomination away cles, no one will ever forget that, for out history in election years, and that presi- from President Obama and are not going to the first time in U.S. history, the ma- dents have constitutional authority to ap- let the Democrats ruin their fun. The Senate jority is stealing a seat from one Presi- point judges to the federal judiciary in all rules allow the filibuster to be eliminated four years of their terms, not just their first with a majority vote, and the Republicans dent and delivering it to another in an three, and that the Court would have to (and will probably do so very soon after Trump audacious effort to pack the Court. No continues to) function with only eight jus- nominates his justice and the Democrats an- one should ever forget that, and we tices. The Republicans understood the stakes nounce their filibuster. should come to our senses and end this

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.139 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2279 before the theft is completed by con- publicans can vote to do away with the fili- Get a Hearing Until Merrick Garland is firming the nominee to this seat. buster for Supreme Court nominees entirely. Seated.’’ This article in the L.A. Times, by the Under either scenario, Gorsuch gets his job. There really is—as several of these To be clear, Democrats and Republicans articles have mentioned—a path to editorial board, says: share the blame for the long roll down the A decade ago, The Times urged the Senate slippery slope of polarization and dysfunc- righting this wrong, and that is to go to confirm John Roberts to the U.S. Su- tion of the judicial selection process. (Some back in time, to recognize that Merrick preme Court even though he was a conserv- Democrats have even suggested in the past Garland was not considered by the Sen- ative judge nominated by a conservative that presidents shouldn’t fill Supreme Court ate, and that we need to tell the Presi- president and was likely to pull the court to seats in election years.) As that selection dent that we are not entertaining any the right for decades to come. We backed process has become increasingly politicized, person other than Merrick Garland to him, despite our disagreements with his judi- the court itself has become more ideologi- be in the seat. We will debate whether cial philosophy, because we believe that cally driven as well. Although there are dif- he should be in the seat. We will vote presidents—Democrats and Republicans ferences between Roberts and Justice Sam- alike—are entitled to significant deference uel Alito, for example, on some important on whether he should be in the seat, when they nominate justices to the high 1st Amendment issues, it’s also true that in and thereby rectify this theft—this sto- court, so long as the nominees are well quali- recent years, justices appointed by Demo- len seat theft that will otherwise haunt fied and scandal-free, respect precedent and cratic presidents have tended to vote for this body and haunt the Supreme Court fall within the broad mainstream of judicial ‘‘liberal’’ outcomes and justices appointed by for the rest of our lives and maybe well thinking. Republicans for ‘‘conservative’’ outcomes. through our children’s lives. But we Under normal circumstances, that same That polarization is a bad trend. haven’t committed the crime yet. This reasoning would lead us to support the nomi- The judicial system works best when jus- nation of Judge Neil Gorsuch. Like Roberts, tices are neither rigidly ideological nor bi- theft has not been completed. So we he is conservative but competent, with more ased along partisan lines. To get there, we should all be pondering how to prevent than a decade of experience on the appellate need a less highly politicalized selection that from happening. bench and a ‘‘well-qualified’’ rating from the process, along with a measure of coopera- The article starts out: American Bar Assn. tion, compromise and civility in Congress. As President Donald Trump’s nominee for But these are not normal times. For the moment, though, it is imperative the vacant Supreme Court seat receives pub- Not after the outrageous obstruction of to remind the world of what the GOP did. By lic scrutiny in the coming days, it’s incum- Judge Merrick Garland’s nomination for 10 all means, let’s hear a cri de coeur from bent for us to remember one thing: This seat full months by Senate Republicans. That de- Democrats, even if it is in vain. The Repub- was not Trump’s to fill. bacle began in March 2016, when President lican misuse of power took partisan obstruc- In fact, the U.S. Senate should refuse to Obama nominated Garland, a moderate and tionism to an extraordinary new level and confirm anyone President Trump nominates well-respected appeals court judge, to fill the must not be ignored now as if it never hap- to the Supreme Court—until Trump renomi- seat on the court that had become vacant pened. President Obama’s nominee was nates and the Senate confirms Judge with the death of Justice Antonin Scalia. In- robbed of his right to a hearing, and the Sen- Merrick Garland. stead of doing what the Constitution re- ate Democrats are under no obligation to be It then refers to a Senate filibuster complicit in the theft. quires and offering their advice and, if mer- as the only correct approach. ited, their consent, Senate Republicans re- I do believe it is our responsibility to To recap: The Senate failed to fulfill its fused even to engage in the process. They de- cry out from our hearts that this is nied Garland a confirmation hearing and in constitutional responsibility with this un- wrong. Stealing a Supreme Court seat precedented refusal even to consider Presi- many cases wouldn’t even meet with him— is wrong. Having this deliberation on the hastily fabricated pretext that a dent Obama’s nomination of Garland. Obama president in his final year of office shouldn’t while the President is under a cloud for made the nomination with about a year left be allowed to name a new justice because his team’s potential collaboration with in his presidency, but from day one the Re- . . . well, it was never really clear what the Russians is wrong. And while this arti- publican Senate leadership insisted it would supposed principle was behind this self-serv- cle described Gorsuch as a bit more permanently block it. No one ever questioned Garland’s qualifica- ing position. mainstream, as people have become fa- tions—an impossibility for this brilliant, They stonewalled the nomination until miliar with his opinions—opinions that dedicated public servant. The obstruction Obama was safely out of office and a Repub- were widely criticized by other Repub- constituted an insulting challenge to lican had won the election. And now, with lican jurists, and, in one case, over- Obama’s legitimacy, accompanied by calls Gorsuch subbed in for Garland, their cynical turned by the Supreme Court on an 8- for the people to decide via the election of and dishonorable strategy is about to deliver the next President. The Republicans effec- its rewards. to-0 vote—they have come to the rec- Some people think it’s hyperbolic to sug- ognition that he is way far out on the tively have attempted to steal this Supreme gest that a seat was ‘‘stolen.’’ But how else fringe, not in judicial mainstream. Court seat. If this effort succeeds—as has ap- to describe it? Republicans took the oppor- So how do we fix this? We fix it by peared likely ever since Trump’s surprise tunity to fill the vacancy away from Barack each Senator asking what they would election—it will create a fundamental imbal- Obama without justification and delivered it ance in the third branch of our federal gov- do if the tables were turned and the ernment, the independence and integrity of up instead to Donald Trump. Gorsuch could Democrats had stolen a seat. The Re- now tilt the balance on the increasingly po- which is vital to our constitutional system. publicans would cry out: It was wrong. An essential role of the federal judiciary is larized Supreme Court for the next 30 or They would ask Democrats to join more years, influencing rulings on free to check unlawful actions of the political speech, gay and transgender rights, cam- them in rejecting that theft. I invite branches—Congress and the president. When paign finance, abortion and gun laws, among my colleagues to go through that exer- political actors conspire to distort the make- other subjects. He may not be outside the cise. How would you respond if a seat up of the court, as they did in denying Presi- mainstream of judicial thinking, but he is a had been stolen from a Republican dent Obama his basic constitutional role, we textualist, an originalist and a likely ally of President and delivered to a Demo- the people must demand that the balance be the court’s conservative justices. restored. cratic President? How would you re- The confirmation of Garland to the court The Republicans’ underhanded ploy to sub- spond if that Democratic President was would provide perfect justice. This may not vert the Garland nomination has put the being investigated for potential col- be quite so far-fetched as it might seem ini- Democrats in an untenable position. They laboration with the Russians to sway tially. President Trump is likely to have the can now do what would ordinarily be the opportunity to make more than one Supreme right thing do—by going high after the Re- the outcome of our elections? How Court appointment. As Trump is not nomi- publicans went low. They could grumble a would you respond if the nominee was nating Garland this time, the Senate should little bit but then decline to filibuster, or not from the mainstream, but from the keep the current vacancy open until a second they could even vote in favor of Gorsuch—ef- far edge? I am quite confident about seat becomes vacant. It should then confirm fectively capitulating in the quixotic hope how each person would respond because Garland, followed by the consideration of the that an act of good faith would encourage that situation would be outrageous. Trump choice. The only appropriate alter- the Republicans to behave more honorably in We must be able to step into each native—given the constitutional stakes— the future. other’s shoes and say: If we are going would maintain an eight-person or fewer Alternately, they can go down kicking and to preserve this institution, we have to screaming. We say ‘‘go down’’ because no court for four years. I don’t suggest this lightly: I experienced matter how hard they kick or how loud they be willing to recognize when it has firsthand— scream, they seem unlikely to win this bat- gone off course, and it has gone dra- tle. The reality is that without filibustering, matically off course this last year. Again, I am reading this article. So they don’t have the votes to defeat Gorsuch. This article is by Dawn Johnsen and the ‘‘I’’ is the author. The author is And if they do mount a filibuster, Senate Re- is titled: ‘‘Trump’s Nominee Shouldn’t Dawn Johnsen.

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.141 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2280 CONGRESSIONAL RECORD — SENATE April 5, 2017 I don’t suggest this lightly: I experienced nominee to be considered for the seat The Democrats have been put in a terrible firsthand the personal toll of the Senate re- that came open under President bind. Do they take the Republican bait, de- fusing to vote on my nomination to head the Obama’s control of the Presidency—his clare the seat stolen and launch a filibuster? Department of Justice’s Office of Legal time in office. Or do they roll over, brand themselves pat- Counsel in 2009 and 2010. One Republican sen- sies and allow Trump to appoint a Scalia ator sought to reassure me it wasn’t per- The LA Times January 31 editorial clone? What message do the Democrats send sonal; it was politics, how the game was said—the title kind of sums it up: if they allow themselves to accept this theft played: ‘‘You do it to us; we do it to you.’’ ‘‘When the GOP stole Merrick Gar- supinely without exacting any punishment? My husband, two sons, and I spent more than land’s Supreme Court seat, they set the How should they fight if the nominee is truly a year in confirmation limbo, in a rented stage for a miserable battle.’’ That is outside the mainstream? And what if he or house far from home, awaiting the Senate pretty much the situation we are in. she is a conservative who is well-respected vote repeatedly predicted for the next week, The previous article I read laid out an and competent—what strategy makes sense then? It’s an awful predicament and it’s hard next month—but that never came. idea of a way around it at this point, in Of course, the politicization of a presi- to see how it ends well. dential appointment is wrong. Each of the which we leave the Scalia seat empty Frankly, the Democrats are not in a ter- president’s nominations ordinarily should be until there is a second seat, and then ribly strong position. They don’t have a ma- assessed on its individual merits. Notwith- Merrick Garland gets considered for jority in the Senate, and though they can fil- standing Trump’s awful first 10 days in of- the first seat, and if the President ibuster for a while, most Senate Republicans fice, the Senate should continue to offer the wants his nominee to be considered for would sooner do away with the filibuster for president’s executive branch nominees this Supreme Court justices than allow the seat the second seat, he would have to make to sit empty indefinitely. That’s the so- same fair standard of treatment. In par- that nomination, and then the Presi- ticular, Trump’s nominee to head the Office called nuclear option. dent gets his nominee considered for At the end the day— of Legal Counsel—the office to which Presi- dent Obama nominated me and the same of- the seat that came up under his admin- Says this article— fice I headed for part of the Clinton adminis- istration, so suddenly there is no Senate Majority Leader Mitch McConnell tration—should be confirmed expeditiously, longer a stolen seat, and we are on the will probably win this round, thus ensuring as long as the nominee is personally quali- path to a future in which the Supreme the long roll down the slippery slope of po- fied. This president is in desperate need of Court’s integrity is not completely larization and dysfunction continues at an good legal advice. decimated. ever-accelerating speed. He should be, but But this Supreme Court vacancy is dif- This article starts out as follows: presumably is not, ashamed of that contribu- ferent. It exists only as the result of the tion to history. His obstructionism exacer- The outrageous obstruction of Merrick wrongful denial of the legitimacy of Obama’s bated the weakening of governmental insti- Garland’s nomination to the Supreme presidency. It is the breakdown of the very tutions and continued the erosion of bipar- Court—the 10-month-long stonewall by Sen- function of our democracy and a slap in the tisan cooperation and civility. Yet if democ- ate Republicans that not only stymied the face to constitutional norms. It is an at- racy is to work and the nation is to prosper, high court’s ability to do its job but effec- tempted theft that, if permitted, would bring the political system must allow for com- tively stole the nomination of a new justice longstanding consequences. Its end was to promise and rationality even among deter- from President Obama—is now delivering its prevent the court from having a majority of mined opponents. rewards to the cynical politicians who car- justices appointed by Democratic presidents For now, another Justice Scalia or some- ried it out. for the first time since 1969. That’s almost one even more extreme will probably be Having denied Garland even a committee half a century with a court majority ap- enstooled, potentially endangering the rights hearing from the time of his nomination in pointed by Republican presidents, a striking of women and non-whites, threatening back- March until Obama was safely out of office, imbalance that does not reflect the presi- ward movement on same-sex marriage and the GOP-controlled Senate is now smugly of- dential vote: Since 1961, Democratic and Re- abortion, offering more protection for power- fering that opening to President Trump to publican presidents have served equal num- ful businesses and less for the environment. fill. The new president, who has repeatedly bers of years. Even in these difficult days, this disgraceful promised to select a new justice in the mold The flimsy and transparently specious ar- move by Senate Republicans to manipulate a of the late conservative Justice Antonin gument Republicans offered was: ‘‘Let the U.S. Supreme Court seat for partisan pur- Scalia, has said he will announce his nomi- people decide.’’ Of course, the people decided poses stands out as sad and egregious. nee Tuesday evening. when they elected President Obama to a sec- Well, that was the LA Times article ond four-year term. And 3 million more This was written just before the from January 31: ‘‘When the GOP stole Americans decided they preferred Obama President announced Neil Gorsuch as Merrick Garland’s Supreme Court seat, have a Democratic successor rather than his nominee. The article continues: they set the stage for a miserable bat- Trump make this appointment. Those who It’s hard to express how head-shakingly tle.’’ value an independent judiciary, and a Senate unfair this is. Trump will now have an oppor- In the course of conversing about the committed to democracy, can fix this con- tunity to affect the balance of the increas- dilemma we face, I have noted that stitutional problem by insisting on Merrick ingly polarized court for the next 30 or 40 there are three big problems. The first Garland’s appointment to the seat he al- years—influencing rulings on abortion, the ready should be occupying. The pick after is that the seat has been stolen from rights of gay and transgender people, free one President and delivered to another that can belong to President Trump. speech, corporate and union spending on I think that accurately sums it up. elections, labor issues, the separation of in an effort to pack the court. The second is that the nominee from There is an idea embedded in there of church and state, the ubiquity of guns, President Trump is way outside the ju- saying: How about this? How about criminal justice reform and endless other hot dicial mainstream. I have gone through this, fellow Senators—that we suspend button subjects. But Trump never should have been handed many of the cases. the consideration of Neil Gorsuch at this opportunity. The seat was Obama’s to The third is that there is a big cloud this point in time until there is an- fill subject to Senate ‘‘advice and consent,’’ hanging over this administration. The other Supreme Court seat that opens and he fulfilled his constitutional responsi- Trump administration’s connections to up, and at that time, Merrick Garland bility in good faith, only to be kneecapped Russia during the campaign and gets at least considered for the first by a body that would neither advise nor con- throughout the transition are numer- seat, the seat that he was rightly nom- sent but merely gummed up the machinery in a transparent effort to preserve the ous, and we keep learning about pieces inated for. President Trump has his of the puzzle every day. person rightly considered for the sec- court’s conservative majority. The GOP’s feeble justification for its behavior—that an Contact between the campaign and ond seat. That would be a way to heal appointment made by a duly elected presi- Russians or dialogue in itself is not the mess that has been created through dent was somehow illegitimate because he necessarily wrong. But it is wrong if the theft of the Supreme Court seat: had only 10 months remaining in office—was that dialogue was about how to coordi- We have stolen it, but we will not act believed by no one. nate, to basically tilt the playing field on it, and so eventually we will enable The Senate’s misbehavior affected more in favor of Donald Trump and against the same nominee to be considered for than just the court. It also constituted a new Hillary Clinton. that seat. That is an interesting idea, a low in the tit-for-tat cycle of dysfunction in The Russian activity was designed to face-saving idea, an idea that gives Congress, in which each side obstructs its op- ponents wherever possible even if that pro- change the outcome of the election. So, President Trump the opportunity to duces a stalemate that brings the operation that in itself is a problem we have to make the nomination that corresponds of government to a halt. Working coopera- pay a lot of attention to. We have to to a seat that comes open during his tively across the aisle to solve the nation’s understand every piece of how the Rus- administration, and President Obama’s problems has gone out of fashion. sians operated. We have to convert

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.143 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2281 that knowledge into a strategy that Russia unless there is a vast improve- Stone repeatedly claimed throughout prevents it from happening again. ment in the fundamental values of a the final months of the 2016 campaign We certainly have to work with our free and fair society within Russia. that he had back-channel communica- allies to make sure that we help all of There is an enormous amount of evi- tions with WikiLeaks founder Julian the democratic Republics of the world dence that the Trump campaign was fa- Assange, and he knew of the forth- resist such meddling by the Russians. miliar with and in conversation with coming document dumps, which dis- So far, we have a pattern of a lot of Russia. If we pursue the investigations seminated materials that were hacked contacts. That pattern of Trump asso- aggressively, we will find whether by Russia from Democratic computers. ciates misleading the public about there was collusion. He admitted in March 2017 that dur- meetings and relationships with Rus- Paul Manafort, a Republican strate- ing August of 2016, he had been in con- sian officials does raise red flags. If gist and longtime Washington oper- tact with Guccifer 2.0, who was be- meetings were innocent, why not be ator, joined Trump’s campaign team lieved to be tied to Russian intel- forthcoming? That is why we have to last spring. He was elevated to be cam- ligence and was claimed to be behind have a strong set of investigations to paign manager after Corey the hack of the DNC. get to the bottom of this. Lewandowski was fired in June. But August 10, Stone tells a local Repub- We have to understand and recognize with just 3 months to go until the Pres- lican Party group in Florida: I have ac- that what Russia did in their strategy idential election, Manafort resigned tually communicated with Julian was equivalent to an act of war on the amid questions over his campaign role Assange. United States. They were attacking and his extensive history of lobbying August 12, Stone says on a podcast our core institution, the bedrock of our overseas, particularly in Ukraine, that he believes Assange has emails de- democratic Republic, our election sys- where he represented a pro-Russian in- leted by Clinton aides Huma Abedin tem. That is unacceptable. terest. and Cheryl Mills. He adds that he If anybody conspired with the Rus- Manafort also worked as an adviser knows he has them, and they should be sians, that is treasonous conduct, and on the Ukrainian Presidential cam- expected to drop in the next 3 months. we have to get to the bottom of it. We paign of Viktor Yanukovych and his ‘‘In fact, I know [Assange] has them,’’ certainly should get to the bottom of it Party of Regions during the same time Stone said, ‘‘and I believe he will ex- before this Supreme Court seat con- span—from December 2004 until Feb- pose the American people to this infor- versation continues. The subsequent ruary 2010, the Ukrainian Presidential mation within the next 90 days.’’ handling of the investigation by the election—even as the U.S. Government August 14, Stone engages in direct House Intelligence Committee and the opposed Yanukovych because of his messages with the DNC hacker, actions taken by the chair of that com- ties to Russian leader Vladimir Putin. Guccifer 2.0, according to direct mes- mittee, Representative NUNES, under- Manafort was hired to advise sages reported by the Washington score how serious the situation is. We Yanukovych months after massive Times and the Smoking Gun. Stone definitely have to get to the bottom of street demonstrations, known as the tells the hacker he was delighted that what happened. Orange Revolution, overturned Twitter had reinstated his account. That fact only emphasizes how seri- Yanukovych’s victory in the 2004 Presi- A day later, Stone says that he has ously the Senate needs to consider dential race. According to a 2008 U.S. communicated with Assange, and slowing down, setting aside, pressing Justice Department annual report, forthcoming material will be related to the pause button on the debate regard- Manafort’s company received about the Clinton Foundation. ing the nomination of Judge Neil $64,000 from Yanukovych’s Party of Re- A day after that, Stone tells radio Gorsuch. Until the FBI and Congress gions over a 6-month period for con- host Alex Jones that he has back-chan- complete the investigation of these sulting services. That was in 2008. contacts, the ongoing coverup con- In 2010, under Manafort’s tutelage, nel communication with Assange, who firming President Trump’s lifetime ap- the opposition put the Orange Revolu- has political dynamite on the Clintons. August 18, Stone says in an interview pointment to the Court is premature. tion on trial, campaigning against its On top of possible collusion, it is also leader’s management of a weak econ- on C–SPAN that he has been in touch worth remembering why it is so trou- omy. with Julian Assange through an inter- bling that President Trump has gushed Returns from the Presidential elec- mediary, someone who is a mutual about Putin’s leadership while turning tion gave Yanukovych a narrow win friend. WikiLeaks would later tweet in some of our longest and most strategic over Prime Minister Yulia response: ‘‘We are happy to hear true relationships on their heads. Putin op- Tymoshenko, the leader of the 2004 information from everyone. But so far, erates a repressive regime, one that demonstrations. Yanukovych owed his we have not heard from Mr. Stone.’’ cracks down on freedom of expression comeback in the Presidential campaign On August 21, Stone tweets that it and whose opposition leaders fre- to a drastic makeover of his political will soon be Podesta’s time in the bar- quently perish in mysterious and sus- persona, and this makeover is credited rel. Stone later says his tweet was picious ways. Someone carrying an to Paul Manafort. about Podesta’s business dealings. On item up to their apartment magically From 2007 to 2008, Manafort was in- the same day, Stone denies that falls and dies or is shot down near the volved in investment projects with Guccifer 2.0 is connected to the Rus- Kremlin or a whole host of different Russian oligarch Oleg Deripaska and sians. ways. Ukrainian oligarch Dmitry Firtash. August 26, in an interview with The actions of Putin are not the ac- The Associated Press reported that Breitbart radio, Stone says: I’m almost tions of a friend of America. The ac- Manafort negotiated a $10 million an- confident Mr. Assange has virtually tions of Putin are not actions that re- nual contract with Deripaska to pro- every one of the emails that the Clin- flect the values shared by the Amer- mote Russian interests in politics, ton henchwomen, Huma Abedin and ican people. They are not values hon- business, and media coverage in Europe Cheryl Mills, thought that they had de- ored in our tradition. They are not val- and the United States. We are talking leted, and I expect that he’s going to ues embedded in our Constitution. about 2005. drop them at strategic times in the The Putin strongman model is very In 1980, Manafort, along with Roger runup to this race. contrary to our system of government. Stone, were founding partners of the On the 29th, Stone says on local Flor- There are no checks and balances. Washington, DC-based lobbying firm ida radio of Assange and the Clinton Those who rise up in the streets are Black, Manafort, Stone and Kelly. Foundation: ‘‘Perhaps he has the likely to be cut down in the streets. Roger Stone—what do we know about smoking gun that will make this hand- Those who cry out for justice are likely him? He is a former Trump adviser, a cuff time.’’ to be silenced. Those who march to im- self-described master of political dark September 16, Stone says on Boston prove things may well find themselves arts, and has been labeled as the dirty Herald radio that he expects Assange behind bars. That is Putin. That is trickster of delegate fights. He has and WikiLeaks to ‘‘drop a payload of Russia. worked with the campaigns of Richard new documents on a weekly basis fairly We should not have a significant im- Nixon and George H.W. Bush and Ron- soon. And that of course will answer provement in our relationship with ald Reagan. the question of exactly what was

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.145 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2282 CONGRESSIONAL RECORD — SENATE April 5, 2017 erased on that email server.’’ Assange T. Flynn was forced to resign once it cratic leader made in a floor speech on has been in touch with them through was revealed that on December 29, 2016, February 16. These are excerpts of Sen- an email intermediary. the day Obama announced sanctions ator SCHUMER’s floor speech: October 1, Stone tweets: Hillary Clin- against Russia, Flynn discussed the The recent reports about General Flynn ton is done. sanctions with the Russian Ambas- detailing constant high-level contact be- You go back to the comments he was sador to the United States. Flynn had tween members of the Trump administration making, where he seemed to know earlier acknowledged speaking to the and the Russian Government raise serious what was going to happen before it Ambassador but not discussing the doubts about this administration’s com- happened, and we saw it happen. It petence in the realm of foreign policy and sanctions. national security and even graver doubts clearly suggests, from this public The New York Times, on March 2, re- about the sanctity of our democratic proc- record, the appearance there—it is hard ported that Kislyak had met with Mi- ess. to imagine with these conversations chael Flynn and Jared Kushner in De- We do not know all the facts, and in the that there wasn’t some form of collabo- cember 2016 to establish a line of com- coming days and weeks, more information ration about what was going on. That munication with the Trump adminis- may well surface about these disturbing rev- is why we need to get to the bottom of tration. elations, but we already know that some- thing is rotten in the state of Denmark. it. Was there collaboration? Those This is just a series of contacts. What All of us can agree that right now what are kinds of comments are deeply, deeply we need to know is: Did these contacts required are the facts. We have to evaluate disturbing. involve communications for coordi- the scope of Russia’s interference in our elec- We have Carter Page, who worked for nating campaign tactics? Did Russia tion and assess if agents of their government 7 years as an investment banker at release information on Hillary at a have penetrated to the highest levels of our Merrill Lynch. His biography said— time suggested by the Trump cam- government. Throughout the process, we took him to London, New York, and paign? Was there any form of coordina- have to avoid jumping to conclusions or en- Moscow for 3 years in the mid-2000s be- tion? That is why we need this robust gaging in wild speculation. We must seek the fore Trump last year listed him as a truth, the whole truth, and nothing but the investigation now. truth. Once we have the facts at our disposal, foreign policy adviser in response to a We have the investigation in the Democrats and Republicans alike can debate question from the Washington Post. House Intelligence Committee. That what to do next. Page has regularly espoused views at investigation has sputtered and has all Senate Democrats are faithfully com- odds with much of the foreign policy the appearance of going nowhere, and mitted to keeping this issue above partisan community in Washington in par- it has been compromised by the com- politics. The gravity of this issue demands ticular, questioning the U.S. approach ments of the House chair. nothing less . . . I am very hopeful the other toward Russia and calling for warmer There is another investigation on the side wants to get at all the facts, just as our side wants to get at all the facts. relations between the two countries. Senate side, with Senator BURR as the This is an issue on which patriotism must He has expressed views in support of chair and Senator WARNER as the rank- prevail over politics because before we are Vladimir Putin and harshly criticized ing member, and they are working Democrats or Republicans, we are Ameri- U.S. policy. He is frequently quoted on pretty well together. We hope that con- cans, with respect for the rule of law. Russian television as a famous Amer- tinues. I know that they believe that Those are excerpts of Senator SCHU- ican economist. we have a responsibility to get to the MER’s floor speech on February 16, and In September of 2016, U.S. intel- bottom of this issue, and I know there I certainly, passionately, agree with ligence officials investigated alleged are many Members on both sides of the him. contacts between Page and Russian of- aisle who put a high priority on getting This investigation of what went on in ficials subject to U.S. sanctions. Page to the bottom of this issue. the election is one in which patriotism rejected the accusations and said he I applaud the work the Senate com- must prevail over politics because, would take a leave of absence from the mittee is doing, but we all know that above all, we are Americans with re- Trump campaign. the Intelligence Committee is a hard spect for the rule of law. In January of 2017, Page’s name ap- place to get information out of. For ex- I will add that, as leaders in America, peared repeatedly in the leaked Donald ample, when the torture report was here in this Senate Chamber, we have a Trump-Russia dossier containing con- completed, it was extraordinarily dif- huge responsibility to get to the bot- tract intelligence from the former ficult to get that into the public’s tom of this, to urge forward the inves- British intelligence operative Chris- hands. This should not be the only tigation by the Senate Intelligence topher Steele in the employ of a pri- strategy. Committee to make sure the results, as vate American firm. Certainly, we have another strategy appropriately compiled and vetted to In January of 2017, Page is under in- with the FBI, and we had the briefing protect confidential sources, are shared vestigation by the FBI, CIA, NSA, and on the Hill. The FBI Director, a week with the American public so that the ODNI. Page contends that he has done ago Monday, came to speak to the American public can know what tran- nothing wrong. House, and he shared a fair amount in spired and so that we, then, act on that In February 2017, Page said that he terms of confirming that the investiga- information. If that information shows had not met with Russian officials in tions are underway, and it is important that there have been treacherous acts 2016, but 2 days later, he appeared to that the FBI use its talents and assets of collaboration with the Russians to contradict himself and stated he did and connections to find out what really undermine the integrity of our elec- not deny news reports that he met with went on in order to get to the bottom tions, we must pursue it to the full ex- Russian Ambassador Sergey Kislyak of this. tent of the law. during the Republican National Con- I would like to also see us have a spe- This next excerpt is from Senator vention in Cleveland, OH. cial prosecutor who pursues this, who SCHUMER’s speech, on March 6, which This month, Page was called on by puts together a team and specifically called for a special prosecutor: the Senate Intelligence Committee in- drills in to get to the bottom of this. I So my Republican colleagues should under- vestigating the links between the would like to see a bipartisan commis- stand that what they know in their hearts is Trump campaign and Russian dealings. sion—a Watergate-style commission— the right thing to do. Do a strong, impartial Michael Flynn attended a gala in so that some of this could be done in investigation and get to the bottom of this. Moscow in honor of Russia Today, now the public realm and not hidden behind That is where the American people want known as RT, a Russian Government- the veil of classifications. Of course, I them to go. The American people disagree with President Trump and want a thorough owned English language media outlet would like to see a robust investigation and impartial investigation—even 43 percent on which he made semiregular media by the press—by the fourth estate. If of the Republicans. They are right. appearances as an analyst after he re- all of those things happen or if some do A special prosecutor is the best way to en- tired from U.S. Government service. not happen but the others are done sure that an investigation proceeds impar- Flynn was paid $45,000 by Russia well, we will get to the bottom of tially for several reasons. Today for the 2015 talk and provided an this—and the sooner the better. In a conversation with POLITICO, all-expense-paid 2-day trip paid by Rus- I am going to continue by sharing our Democratic leader said on March sia. National Security Adviser Michael some comments that the Senate Demo- 21:

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.147 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2283 You can bet if the shoe were on the other This is a nominee who comes from Intelligence Committee vowed to forge ahead foot and a Democratic President was under the far right of the spectrum, with case by interviewing key players connected to investigation by the FBI the Republicans after case after case—the frozen truck- Mr. Trump and pressing intelligence agen- would be howling at the Moon about filling a er case, the autistic child case. There is cies to provide all relevant information. Supreme Court seat in such circumstances. But their display of collegiality seemed in- It is unseemly to be moving forward so fast case after case in which he finds a way tended primarily as a contrast to the explo- on confirming a Supreme Court Justice with to turn the law to do the opposite of sive and often bewildering statements in re- a lifetime appointment while this big, gray what the law was written to do. cent days from the Republican chairman of cloud of an FBI investigation hangs over the As I have read through those cases the House Intelligence Committee, Rep- Presidency. over the course of the nearly, roughly resentative Devin Nunes of California, whose The Washington Post notes it is un- more than 11 hours, you will see the perceived closeness with the Trump White seemly to confirm Gorsuch amidst an pattern of decision after decision being House has raised doubts about his ability to made for the powerful and the privi- conduct an impartial investigation. FBI probe of the Trump campaign. The chairman of the Senate Intelligence I would like to point out that it is leged, of his writing a dissent from the Committee, Richard M. Burr, a Republican the height of irony that Republicans majority that says this decision by a from North Carolina and a supporter of Mr. held the Supreme Court seat open for labor board was very reasonable and in Trump during the campaign, suggested on nearly a calendar year while President compliance with the law because it ex- Wednesday that he would not retreat from a Obama was in office but are now rush- actly fits the law. Yet Neil Gorsuch process that could damage the reputation of ing to fill the seat for a President wrote a dissent because he wanted to a Republican President. ‘‘This investiga- whose campaign is under investigation find a way to find for the powerful or- tion’s scope will go wherever the intelligence by the FBI. It is unseemly and wrong ganization. leads,’’ Mr. Burr said during a rare joint Here we have these three big factors. news conference. to be moving so fast on a lifetime ap- Asked later whether he had encountered pointment in such circumstances. This is a time when there should never any direct links between Mr. Trump and On March 21, a report on the Hill by be a petition to close debate because Russia’s interference, Mr. Burr was stern. Jordain Carney said: people have a lot to say, and there are ‘‘We know that our challenge,’’ he said, ‘‘is Senate Minority Leader Charles Schumer 100 Members of this body. When they to answer that question for the American is urging Republicans to delay a vote on Neil expend their energies and they are people.’’ Gorsuch, President Trump’s Supreme Court through with their conversations, then The Senate investigation amounts to a nominee, because of an ongoing investiga- ask the question: Are people ready to credibility test for Republicans under the Trump administration—a chance to prove tion into potential ties between Trump offi- close debate? At that moment: Are cials and Russia. their willingness to ask uncomfortable ques- there 60 votes for this nominee? tions of a Republican President, even if the ‘‘It is unseemly to be moving forward so This effort to ram this through not fast on confirming a Supreme Court Justice answers might weaken his or the party’s with a lifetime appointment while this big, only does not fit the tradition of the standing. gray cloud of an FBI investigation hangs Senate or fit the circumstances, but it Democrats are skeptical. But they are also over the Presidency,’’ the Senate’s top Dem- raises a question: Is there an effort to mindful that the Senate most likely remains ocrat said, echoing language used the day be- put this through before information their best hope on Capitol Hill for gathering fore by Republican House Intelligence Com- comes to the surface that might information, making them disinclined to mittee Chairman Devin Nunes. change the outcome? abandon the Senate Intelligence Commit- Schumer’s request, which is unlikely to tee’s investigation. The F.B.I. is also inves- At 11 o’clock last night, we got this tigating. gain traction with Republicans, comes as posting—or, I guess, it was posted at 11 Gorsuch is into his second day before the Ju- On Wednesday, Mr. Burr and his Demo- diciary Committee . . . but the New York p.m. and we got it at about midnight cratic counterpart on the committee, Sen- Democrat argued that it was ‘‘the height of here on the floor—of the article by PO- ator Mark Warner of Virginia, offered some irony’’ that the Republicans blocked then- LITICO. It laid out a side-by-side com- evidence of what they had reviewed so far, President Obama from filling the Supreme parison of language that Gorsuch had saying they had begun to schedule the first Court seat left vacant by Antonin Scalia’s used that was, essentially, lifted from of at least 20 interviews. death . . . but are now rushing to confirm other people’s writings without attri- Mr. Warner drew attention to reports of perhaps 1,000 internet trolls in Russia gener- Gorsuch. bution. Several experts have said that Just before I started speaking yester- ating fake news stories and targeting them this meets the standards of plagiarism in swing States like Wisconsin, Michigan, day evening, the majority leader came because the language was lifted with- and Pennsylvania. ‘‘Russia’s goal, Vladimir to the floor, gave a short speech, and out attribution, and that is what pla- Putin’s goal,’’ said Mark Warner, ‘‘is a weak- said he was filing a petition to close de- giarism is. Others said maybe not. er United States.’’ bate. That is the first time in U.S. his- Maybe it does not quite meet that Mr. Burr noted that the Russians were now tory that a petition to close debate has standard. ‘‘actively involved’’ in the French elections. been filed on the first day of a Senate Is this one of the reasons that we are On Thursday, the committee will hold a pub- debate. Generally, the Senate will, if trying to shove this nomination lic hearing on Russian influence on cam- paigns broadly. people have more to say, go for many through in such an extraordinary way The two also left little doubt that they days—go for weeks—without some- when it is under such a cloud to begin viewed the House’s unruly process as an body’s filing a petition to close and with? Is there more information like afterthought, one that should not reflect on shut off debate. this that needs to come out? their own efforts. Why are we rushing into the comple- This is a guarantee that Senators ‘‘Let me set the ground rules real tion of this nomination in this extraor- would vote against closing debate if quick,’’ Mr. BURR said, ‘‘before taking dinarily inappropriate, condensed, ac- there is the possibility that this is try- questions. We will answer anything celerated fashion when there is so ing to be done fast—to have a vote—be- about the Senate Intelligence Commit- much to consider? fore significant information is put into tee’s investigations. We will not take This is not a nomination in normal the public realm. questions on the House Intelligence times. This is a nomination for a seat (Mr. GARDNER assumed the Chair.) Committee.’’ that has been stolen from one Presi- The New York Times had an article Mr. Burr could not suppress a smirk. Mr. dent and delivered to another. It is the on March 29, 2017: ‘‘Senate Intelligence Warner laughed outright. first time it has happened in U.S. his- Committee Leaders Vow Thorough But the drama in the House has already tory. This is a nomination during a Russian Investigation’’: complicated the Senate’s task, according to moment in which the President mak- Senators leading the investigation into Senate committee members, leading the pub- ing the nomination has a team that is Russia interference in the November election lic to question congressional inquiries across under investigation for potentially pledged on Wednesday to conduct an aggres- the board. conspiring with the Russians to change sive inquiry, including an examination of ‘‘I worry that the chaos on the House side the outcome of the Presidential elec- any ties to President Trump, as they sought has affected the public’s view on whether to distance themselves from the flagging ef- Congress can credibly investigate this mat- tion. That is the big cloud that must be forts in the House. ter,’’ said Senator Susan Collins, a Repub- dispelled and resolved and should be re- In a conspicuous show of bipartisanship lican from Maine and a committee member. solved before this conversation on the during a fractious time at the Capitol, the ‘‘I believe the answer to that is still yes, and floor continues. top Republican and Democrat on the Senate the Senate is the place.’’

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.149 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2284 CONGRESSIONAL RECORD — SENATE April 5, 2017 Lamenting the ‘‘debacle’’ in the House, this month, with Mr. Schiff by his side, he NPR wrote, or it has a piece done by Senator Kamala Harris, Democrat of Cali- announced plans for three former officials to Philip Ewing: ‘‘4 Unanswered Questions fornia and another committee member, said testify, a group that would include Sally Q. About the FBI’s Russia Investigation,’’ she believed ‘‘the public is now shifting to Yates, who briefly served as acting Attorney March 20. us.’’ General and alerted the administration that The Congressional investigations are not Michael Flynn, Mr. Trump’s former National FBI Director James Comey lit the fuse related, but their focuses overlap, leaving Security Adviser, appeared to have lied Monday on a political time bomb and no the Senate panel to defend itself in the face about his contact with Russian officials. one—including him—knows how long it will of Mr. Nunes’s assorted claims. While a vast Last week, Mr. Nunes scrapped that public take to burn or what kind of damage it may majority of Republicans in the House have hearing, arguing that the committee first cause when it goes off. stood by Mr. Nunes amid calls for him to needed more time to question intelligence Comey confirmed to Members of Congress recuse himself, his furtive maneuvering—in- leaders. But on Tuesday he said this hearing that his investigators are looking into pos- cluding bypassing the committee to brief the had been postponed as well—as the Wash- sible collusion between the campaign that White House about relevant intelligence— ington Post reported that White House offi- elected President Trump and the Russian has placed House committee members in a cials had tried to stymie Ms. Yates’s testi- government. In fact, he said, the FBI has difficult spot. mony. Democrats have accused Mr. Nunes of been doing so since last July. And at least one Republican lawmaker, trying to stall not only the investigation but The signs had been there, from press re- Representative Charlie Dent of Pennsyl- also the committee as a whole. ports to the announcement by Attorney Gen- vania, suggested on Wednesday that the Sen- Mr. Warner said on Wednesday he would eral Jeff Sessions that Sessions would recuse ate should take the lead on Congress’s inves- ‘‘like to see Ms. Yates at some point’’ before himself from any such probe. Now, Comey’s tigation into ties between the President’s his committee. disclosure to the House Intelligence Com- orbit and Russia. At the same time, the Senate investigation mittee removes all doubt that the FBI be- The Senate majority leader has long re- has not been blemish-free. lieves there is sufficient evidence to look sisted calls for a special prosecutor or select Well, this can be summed up by say- into the connection between Trump’s one- committee, saying the Senate can do the job ing that each of them are saying that time political aides and the Kremlin. through regular protocol. they are partners and they are working The case that Russia interfered in the pres- idential campaign has been made. The U.S. On the House side, a string of perplexing on this together. And I urge them to decisions by Mr. Nunes has threatened to un- intelligence community laid out an unclassi- ravel the panel’s investigation altogether. continue that work aggressively. fied version in December, and then President Last week, he abruptly announced that he ‘‘I’ll do something I’ve never done: I’ll Barack Obama responded by expelling a had obtained information indicating that admit I voted for him,’’ Mr. Burr said of Mr. group of Russian spies and sanctioning some people associated with the Trump transition Trump. ‘‘But I’ve got a job in the United of its key officials. may have ‘‘incidentally’’ been caught up in States Senate.’’ But details about the role Trump’s team legal surveillance of foreign operatives. He And we have a job to address. We are might have played in the making of that also bypassed the committee’s top Democrat, here at this critical moment, wrestling mischief still are murky, and Monday’s hear- Representative Adam B. Schiff of California, with what to do with this stolen Su- ing did not include much explosive new in- formation. In fact, the panel’s chairman, to brief Mr. Trump. preme Court seat, knowing that if we The President seized on the information, California Representative Devin Nunes, who misleadingly, as evidence for his thoroughly confirm a nominee to this seat and served on Trump’s transition team, and his debunked claim that President Barack confirm and complete the theft, it will fellow Republicans, spent as much of their Obama had wiretapped Trump Tower—an al- damage the Court through the rest of time as they could drawing the focus away legation dismissed not only by senior law en- our lifetimes. It will set a precedent from the Russian collusion narrative. forcement officials like the F.B.I. Director that will cause more turmoil, more The real outrage, Republicans argue, is the James Comey, but also by the heads of the politicization. It will call into question leaking of classified information to the House and Senate investigations, including every 5-to-4 decision of the Court. That Washington Post and other newspapers, espe- Mr. Nunes. cially the identity of former lieutenant gen- Another obstacle to bipartisanship came is our responsibility, to figure our way eral Mike Flynn as having been swept up in on Monday, with the revelation that Mr. out of this. U.S. Government surveillance of Russian Nunes had viewed what he characterized as One of the articles I read earlier sug- ambassador Sergei Kislyak. ‘‘dozens’’ of reports containing classified in- gested a path out of this. It said to I am sure I will be corrected on that formation on the grounds of the White keep this seat empty. Set this aside later, with the correct pronunciation. House. until there is a second seat, and then Flynn resigned after a brief stint as Democrats fumed, their suspicions fueled the nominee, Merrick Garland, who by speculation that the source of Mr. Trump’s National Security Adviser and has should have been considered for the since retroactively registered as a foreign Nunes’s information was a Trump adminis- first seat, would be considered, and the tration official and that Mr. Nunes may have agent for his work representing Turkish in- even coordinated with the White House. second nominee would be whoever terests. Democrats revealed on Friday that While Mr. Nunes defended him by saying he President Trump wants to put forward, Flynn had also taken more than $50,000 in needed to be at the White House to view the and maybe that is the same nominee payments from Russian government entities. Democrats, led by ranking member Adam sensitive documents in question, one can pe- we have now. Maybe it is Neil Gorsuch; Schiff, also of California, used their time on ruse sensitive information at the Capitol and maybe it is somebody else. But the Monday to put Trump and the Russians to- at other spots around Washington. point is you eliminate the stolen seat gether as closely as possible, including in an The story of the House investigation syndrome. extended opening statement by Schiff that melting down continues, and it really Maybe there are other pathways out laid out his theory of the case. emphasizes how important the Senate of this, but proceeding to the comple- Much of Schiff’s statement, however, re- investigation is. I have been very im- tion of this week, in confirming Neil lied on information that is already publicly pressed by Senator BURR and Senator Gorsuch, that is where this week ends. available, which has been called into ques- tion. Monday’s session did not include major WARNER working together to pursue It is truly deeply damaging to the Su- new details about the alleged ways that the that investigation. I feel that more preme Court for the balance of our Trump camp may have worked with the Rus- needs to be done. Yes, the FBI needs to lives. Let us not be partners to such a sian intelligence services. investigate, and the Senate Intel- destruction of a key branch of our gov- But it did raise new questions about the ligence Committee, and the press, but ernment. imbroglio—some of which lawmakers may we should also have a special pros- The damage won’t just be to the Su- answer at a second session now scheduled for ecutor. We should also have a bipar- preme Court. It is also to this body. Be- March 28, and some of which might not be tisan commission. But if each part of cause once this body conspired in the cleared up until the FBI announces the re- this puzzle pursues their work aggres- theft, the wounds here are deep and sults of its investigation. sively and in good faith, we may get to will continue to cause tremendous acri- The first question: the bottom of what went on. It is so mony as we go forward, and it will lead 1. How much evidence is still to be discov- important to hold people accountable, to future acts in the Senate—perhaps ered? And how reliable is what’s now public? balancing out the first theft with a sec- Schiff crafted a narrative about the Rus- and if traitorous crimes have been sians’ first exploration of the presidential committed, they need to be pursued to ond theft—and so on and so forth, in candidates to a critical period from July to the full extent of the law. which nobody wins. August of 2016. If Moscow began by trying The article goes on: So let us come to our senses and not simply to learn more about the potential Democrats have also chafed at Mr. Nunes’s have this week end in the manner in next U.S. president, it shifted to trying to shuffling of the hearing schedule. Earlier which it has been predicted that it will. hurt the likely Democratic nominee, Hillary

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.150 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2285 Clinton, and then helping her opponent—or and Republican aides on Capitol Hill have and that starts by honoring our insti- so the argument goes. shown continued willingness to carry water tutions. So I am going to heal this rift. Schiff relied on information that has ap- for the White House in responding to press I am going to end this theft by nomi- peared in press reports and some that ap- reports or handling inquiries like those on nating Merrick Garland. Sixteen pears in a controversial dossier passed from Monday. a former British intelligence officer to But charges against Trump aides, or new times—the President could have said— Comey by Sen. John McCain, R-Ariz. NPR revelations about collusion between the 16 times in the history of our country, and other news organizations have refrained campaign and Russian agents, would change there has been an open seat during an from reporting such details because of the all that—and fast. Democrats may never for- election year on the Supreme Court. unknown providence of the dossier—but does give Comey for revealing just before Election And we already know the past; that is, Schiff’s use of it in the public hearing indi- Day that the FBI had resumed inquiries into 15 times the Senate considered the cate that at least some of the information Hillary Clinton’s private email server, which nominee and either confirmed or re- has been verified? Clinton and Democrats say threw a close jected them but always considered The Democrats’ case also rests on con- election to Trump. Now the president, the them—except with Merrick Garland. versations between Trump advisers and peo- White House and their Republican allies on We are going to heal that damage, ple connected to the Russian military intel- Capitol Hill are under a similar Sword of the President could have said, and so ligence service, the GRU, or other top Rus- Damocles. first we will put forward Merrick Gar- sians. But how much more detail exists The fourth question: about what was said in those meetings? How land. Then when a seat opens legiti- How will Russia respond to the investiga- much effort are congressional or FBI inves- mately on my watch, I will put forward tions and their outcome? tigators making to interview Trump’s cam- a nominee I would choose according to Comey, National Security Agency Director paign advisers? Michael Rogers and other top U.S. intel- the principles I laid out in my cam- So the first question in the NPR re- ligence officials have taken care not to say paign. But I am not going to damage port is, How much evidence is still to whether they believe Russia succeeded in in- the Supreme Court for generations to be discovered and how reliable is what fluencing the outcome of the 2016 election— come by participating in this strategy is now public? only that they’re confident Moscow con- of packing the Court. The second question in this report: ducted an influence campaign. If the President had given that Will Russian President Vladimir Putin 2. Might Trump aides have colluded with speech, that would have been an im- turn out to have invested wisely or to have Russia without knowing it? pressive moment—a moment of bring- been the dog that caught the car? If Putin One new thread that emerged from Mon- ing this country together, of saying wanted the U.S. to relax the Obama-era day’s hearing came as part of an exchange that he is the President not of the Re- sanctions imposed after Russia’s invasion of between Comey and Illinois Democrat Mike Ukraine, that ship may have sailed—the publican Party but of the United Quigley, who asked whether it’s possible for scrutiny of Trump’s connections to Moscow States of America, which has these Americans to help a foreign power and not may have now made even the appearance of beautiful key branches of government, know about it. Yes, Comey answered cautiously—an any deal impossible. coequal branches—the executive And American military deployments in American might give information to some- branch, the legislative branch, the ju- Eastern Europe, including of armored units one he legitimately believes is a Chinese re- dicial branch—bringing all three of along NATO’s frontier with Russia and ships searcher and isn’t aware is actually a Chi- those together in that conversation with aircraft in the Black Sea, have contin- nese intelligence officer. Or an America and saying: What the legislative ued. might fall in love with someone and not real- None of this means, however, that Putin is branch did sets the stage to damage ize he or she is in a relationship with a for- finished meddling in American politics, the Supreme Court, and as President, I eign agent: ‘‘Romance could be a feature,’’ Comey warned. He told members of Congress won’t participate in it. I will solve it. I he said. on Monday that the Russians, for their own will bring people together. I am the That could explain denials by people at the purposes, likely are satisfied with their center of the Trump-Russia imbroglio, in- great negotiator. I know how to make work—having sowed confusion and undercut cluding former Trump campaign manager a deal. Right now, the only deal is a faith in the U.S. democratic process—and Paul Manafort, who resigned after reports bad deal that damages all three may try it again. about his connections to pro-Kremlin gov- branches, a deal that was crafted with- ‘‘We have to assume they’re coming back,’’ ernment factions in Ukraine. The New York he said. in a few minutes following the death of Times referred to Manafort in a story in Feb- Antonin Scalia, on the same day the ruary about U.S. intelligence officers docu- We have to assume they are also majority leader came to the floor and menting many alleged connections between working to undermine the elections in said: We are going to do something the Trump camp and Russians. other democratic countries, and we never done before in American history. Manafort called the report ‘‘absurd’’ and need to be working with our allies and told the newspaper: ‘‘It’s not like these peo- We are going to steal a seat. fellow democracies to fully understand Of course, those are not the words he ple wear badges that say, ‘I’m a Russian in- and thwart this Russian strategy of un- telligence officer.’ ’’ used. His words were: We are not going Manafort’s comment caused head-scratch- dermining the foundation for our to have any Senate action on this ing at the time it appeared, but Comey and democratic Republic’s elections. nominee, the nominee the President Quigley’s exchange on Monday created the The NPR article raised very good will put forward for this seat. prospect for a story about Russia not nec- questions—questions to which we don’t If only at that moment the Senate essarily using Trump campaign aides as have answers. But just the breadth of had been the cooling saucer. That is agents, but dupes. the questions shows how significant the idea that Washington reputedly put The third question in this NPR arti- this situation is. forward, considered to be apocryphal, cle: I understand the Sun is coming up but it is a nice image that sums up the 3. What did Trump know—and when did he behind the Supreme Court. I was difference between the House and the know it? struck just how beautiful the weather Senate—the Senate elected for 6 years, If Comey’s investigation results in no was yesterday, while the weather in- seats rotating every 2 years. And when charges or no new information about ties be- side this building was so dark and there are wild ideas crafted in the pas- tween Trump’s camp and Russia, the White gloomy. Mother Nature gave us a beau- sion of the moment, the Senate comes House would get rid of an albatross that has tiful, beautiful day. The partisan poli- been around its neck for months. But if the along and says: We will bring a little FBI charges former Trump campaign offi- tics gave us a very, very ugly setting more experience and thoughtfulness. cials or reveals links between the Trump here in the Senate Chamber as we We will bring a little more delibera- camp that haven’t already been aired pub- started debating over a nominee nomi- tion, and we will craft something that licly, that could escalate quickly and land nated to fill a seat which did not open will strengthen America, strengthen the president or his top campaign aides in up under President Trump’s watch and our institutions, not destroy them. hot water. which he has no right to propose a But we didn’t have that reaction on Trump never retreats and never apologizes nominee. This is a seat stolen from the that day when Antonin Scalia died. In- and so far has mounted a brash defense. He flits between sometimes acknowledging the Obama administration, delivered to stead, we had not the cooling saucer, Russian mischief during the presidential President Trump. but we had the immediate rush to a race and sometimes dismissing it as a fiction Wouldn’t it have been something if principle that will do so much damage. created by Democrats to excuse their loss. President Trump said: I talked a lot And I say ‘‘principle’’ only in the con- That strategy has continued to be workable, about bringing this country together, text of an asserted argument; that is,

VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.153 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2286 CONGRESSIONAL RECORD — SENATE April 5, 2017 an argument that, well, it is an elec- trol of the Federal judiciary, the fact Clearly, the groups like the Koch tion year, so we really shouldn’t con- that we left the end of the last year brothers believe that their interests sider someone. It should go to the next with 30 Federal judicial nominees on are deeply connected to the decisions President. There was no principle be- the Senate calendar, nominees who had made in this body. And they have in- hind it and no history behind it. As I received a bipartisan vote in the Sen- vested vast resources into the cam- pointed out, 15 seats were open during ate Judiciary Committee? They were paigns, so it is not just that they said: the election year in the history of our left unresolved, unvoted on, when the Well, let’s go down and talk to people country, and the Senate acted on every Senate went out of session. Does the in the Senate about our particular in- one until the 16th, when Antonin Senator from Oregon see as I do, a pat- terests as coal and oil billionaires. No, Scalia died, and within just a couple tern of conduct on the Republican part they decided to change the makeup of hours, the majority leader announced when it comes to filling the courts? who sits in this body. In 2014, the in- that we will do what we never did, and Mr. MERKLEY. As my colleague has vestment involved going into Lou- that is, fail to honor the advice and pointed out through his question, the isiana and Arkansas and North Caro- consent responsibility of the U.S. Sen- challenge we have with the appropriate lina and Iowa and Colorado and Alaska ate. treatment of our advice and consent re- and several other States, including my Mr. DURBIN. Mr. President, will the sponsibility isn’t simply a problem State, the State of Oregon. And they Senator from Oregon yield for a ques- with the Supreme Court nominee, but won most of those States that they in- tion without yielding the floor? with strategies to prevent the consider- vested in. Mr. MERKLEY. I will do so. ation of judges from our former Presi- Then they sent a message in January Mr. DURBIN. As I recall, there was a dent—both at the district court and at 2015 by saying: In the next election, we moment in 1988, in the last year of the circuit court levels—leading to the are prepared to spend the better part of President Reagan’s Presidency, when circumstances you describe. a billion dollars. That was heard very there was a vacancy on the Supreme Mr. DURBIN. Is the Senator from Or- loudly in this Chamber, and the first Court. This Republican President was egon aware of the fact that President bill up was a Koch brothers’ bill. You in his last year—his so-called lame- Trump, during his campaign, released see their influence in all kinds of ways, duck year, as many Republicans have the list of 21 names of potential nomi- indeed. now characterized it. At that time, the nees for the Supreme Court, and then I believe the reason we are here Senate was in the control of the Demo- thanked the Federalist Society and the today in this conversation is in large cratic Party. Of course, the Senate Ju- Heritage Foundation for preparing that part because those who invested in cre- diciary Committee, I believe, was list? The Federalist Society—a Repub- ating the majority that we now have in chaired by Joe Biden at that time in lican advocacy group here in Wash- this Chamber wanted to make sure 1988. ington, DC—now brags that every that there was a Supreme Court that President Reagan sent the name member of the Supreme Court ap- would sustain the Citizens United rul- ‘‘Anthony Kennedy’’ to the Senate to pointed by a Republican President has ing that allows this dark money of fill a vacancy on the U.S. Supreme either been a member of or cleared by which the Senator speaks. Court and the Democratic Senate held the Federalist Society before they took Mr. DURBIN. I ask the Senator from a hearing and a vote and sent Anthony the bench. Oregon through the Chair again: Dur- Kennedy to serve on the U.S. Supreme Mr. MERKLEY. I am aware of that, ing the course of the Senate Judiciary Court, where he continues to serve. So and it disturbs me that the responsi- Committee hearing, Senator SHELDON those who argue on the other side that bility of the President to find the right WHITEHOUSE raised this question about everybody is doing it, that ‘‘you would person to place on the Court was dark money with Neil Gorsuch, the do the same thing, if you could’’ and farmed out, essentially, to these two nominee for the Supreme Court, and that sort of thing, I believe that is groups the Senator mentioned. asked if he was aware of the fact that belied by the history—the recent his- While often people will say: Did the millions were currently being spent on tory—when the Democrats were in the President ask the nominee a particular ad campaigns and mail campaigns majority in this Chamber. question about how they might rule on across the United States to promote So the Senator from Oregon is saying XYZ, I am sure that it is quite likely his nomination—and whether Neil that this is not the only time in his- that these groups did ask all sorts of Gorsuch felt that the source of this tory this has occurred, and Senator questions in developing their list of 21 money should be disclosed. As far as we MCCONNELL ignored this and decided potential Justices. could bring the judge on this subject, not to even have a hearing or vote on Mr. DURBIN. I wonder if the Senator he said: Well, someone should ask Merrick Garland—something that has from Oregon will yield for another about where the money is coming from. never been done in the history of the question through the Chair. That, I guess, is a pretty bold state- Senate, which brings us to this mo- I ask, when it comes to the Fed- ment because many Republicans don’t ment. Is that the point the Senator is eralist Society—of course, like so believe that it is fair to even ask where making? many of these dark money organiza- the money is coming from. Mr. MERKLEY. My colleague from tions, they refuse to fully disclose their There was a time when even the Sen- Illinois is absolutely right. In the mid- donors. They say it is to protect their ate majority leader used to say: I am dle of the night somewhere, a few hours identity from harassment. It is also not going to complain about the ago, I pointed out that this evidence of protecting the American people from amount of money. I just want to make different style of action didn’t just de- the truth. sure it is all disclosed. Well, he is com- pend on the history books because you Three that we do know have been ac- pletely vacating that position. He can look a few hundred yards here from tively involved would be the Koch doesn’t want disclosure. He doesn’t the Senate out at the Supreme Court, brothers—a well-known group sup- want the American people to know where Justice Kennedy sits and had porting Republican candidates—the where the money is coming from. gone through the process, just as the Richard Mellon Scaife family founda- I don’t know if the Senator from Or- Senator had described. tion, as well as the Mercer family, now egon noticed the television advertising Mr. DURBIN. I would ask the Sen- merging with millions and millions of here in Washington, where there is a ator from Oregon, as well, through the dollars supporting these Republican lot on an issue like this before us. But Chair, in this situation where Senator causes. the television screens—at least for MCCONNELL, as the Republican Senate I ask the Senator: Is it a leap of faith those morning talk shows—were inun- leader, has exercised his so-called nu- for me to think that they would not be dated with advertising in favor of Neil clear option to stop Merrick Garland, working so hard to put someone on the Gorsuch from groups like the 45 Com- President Obama’s choice, from filling Court, unless they felt that person was mittee, Judicial Justice Committee. the vacancy on the Supreme Court, going to rule along the lines that they They make up these names right and does the Senator from Oregon believe, believed? left. as I do, that this is part of a concerted Mr. MERKLEY. I think that would I ask the Senator: When it comes to effort by the Republicans to take con- not be a leap of judgment or analysis. decisions like Citizens United, does

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And in issue of dark money and having a per- States owned by the Green family—the Hobby Lobby, the corporation gets reli- son on the Court who will sustain that Green family had their own special per- gious rights, if you will—the right to flow. That Citizens United decision was sonal religious beliefs when it came to overrule, not just express them a 5-to-4 decision. Four Justices laid out family planning and birth control. So through the benefits they provide to the case that these unlimited funds— they refused to provide for their 13,000 their employees, but to trump the reli- and often secret funds—are corrupting employees across the United States gious choices of their employees. It is our American political system. And if any health insurance plan that pro- kind of a super religious power, if you one wants an example of that corrup- vided for methods of birth control, will, choosing the corporation over the tion, simply look at the vast change— which they found personally offensive. people. In both cases, there is this ele- within a short period of years—of the They said that this was a corporate po- ment of choosing the corporation, pro- position of our colleagues on the right sition they were taking—a company moting it, exalting it, over the rights side of the aisle in regard to the envi- position. of individuals. ronment. So it was Neil Gorsuch, with others Jefferson made a comment in a letter We had many colleagues who were on the Tenth Circuit Court, who de- where he talked about the philosophy very concerned about carbon pollution cided to expand the definition of of the mother principle. The mother coming from the extraction and burn- personhood—again to include closely principle said that the only way our ing of fossil fuels. They wanted to held corporations like Hobby Lobby. government will proceed to fulfill the make sure that we had a sustainable The net result was that the owners— will of the people is if each citizen has planet to pass on to our children—our the Green family—were able to say: We an equal voice—not vote, but voice. children’s children. It was following a are going to stand up for our religious ‘‘Vote’’ was a big piece of that, but he Republican tradition of being involved beliefs when it comes to family plan- chose the word ‘‘voice,’’ as did Presi- in things like the Environmental Pro- ning. And to say to 13,000 employees dent Lincoln on another occasion. The tection Agency creation with President that those employees’ personal be- point he was making is that you have Nixon and the Clean Water Act and liefs—the religious beliefs of each em- to have a place where everyone can Clear Air Act. ployee—really made no difference from weigh in, more or less, in equal fashion. In a short period of time, like a shal- the viewpoint of Judge Gorsuch. Once The opposite of that is Citizens low pool beneath a hot sun, it just the owners of the company had decided United, where an individual who is a evaporated. That concern for the envi- what was good, principled religious multibillionaire can weigh in mas- ronment just disappeared and dis- conduct, they could impose that on sively by buying up the air waves, the sipated. The result is that today, we their employees. radio waves, the television waves, the have virtually no support to take on So there is a parallel here where Citi- web advertising, the social media, this major environmental threat in a zens United said a corporation is a per- scrolling and so forth—all of these bipartisan fashion, and that cor- son. Judge Gorsuch and Hobby Lobby tools that didn’t exist at the time they responds to this flow of dark money said that a closely held corporation is were formed. So there is this ability for from the oil and coal billionaires into a person. And in the Citizens United the wealthiest to do a citizen sound the campaigns for the Senate in the case, he said this person—corporation equivalent of a stadium sound system United States of America. that drowns out the voice of the peo- So it is a deeply disturbing situation person—has the right of free speech. In ple, just as you have this situation in in which absolutely a lot of the expla- the case of Hobby Lobby, Judge Hobby Lobby where the religious pref- nation as to why we have a stolen Su- Gorsuch said this corporation has the erence of the corporate entity can preme Court seat and why we have this right of freedom of religion to exert nominee and why he is being rushed their sincerely held religious beliefs. trump the religious preferences of the through in a way that no Supreme So I say to the Senator from Oregon: employees. Mr. DURBIN. If the Senator from Or- Court seat had been rushed through It is clear to me that they tested Judge egon will yield further, when I started ever before. Gorsuch in the Tenth Circuit, and he Yesterday—Tuesday—just shortly be- came out ahead when it came to the trying to find out the source of the fore I started speaking last night, the basic principle that corporations money for these television ads that majority leader came to the floor and should somehow be treated as persons support Neil Gorsuch for the Supreme said that he was filing a petition to when it comes to rights under the Con- Court, I went to something—the 45 close debate. That is the first time in stitution. That to me is hard to imag- Committee, I mentioned to you. I had U.S. history that has been done on the ine. never heard of it before. I looked it up. first day of the debate. That is the type I just can’t fathom how they could There was a committee that sounds of, I guess, completely focused effort to stretch the meaning of person to in- just like this. It is hard to keep track complete the theft that began last clude corporations when it doesn’t say of them. The largest donor by far in year. so expressly in any of the statutes that terms of money was Sheldon Adelson, a Mr. DURBIN. I ask the Senator from were referenced here. I haven’t seen a man out of Las Vegas who has become Oregon if he will further yield. lot of corporations pleading guilty and rather celebrated, if not notorious, for Neil Gorsuch, the judge from the being sent to prison. It doesn’t happen putting millions of dollars into those Tenth Circuit who has been nominated much. political efforts on behalf of candidates for the Supreme Court, has had some So my question to the Senator from from the right—some say from the ex- noteworthy opinions. One was the Oregon is, when it comes to the clear- treme right. Hobby Lobby case. It is an interesting ance of Neil Gorsuch for the Supreme I would also ask the Senator from Or- parallel between Hobby Lobby and Citi- Court seat—this open seat on the Su- egon if, during the course of his review zens United. In Citizens United, the Su- preme Court—whether they found the of Judge Gorsuch’s record, he came preme Court said: We believe that Hobby Lobby decision something that across the TransAm Trucking case, money is speech. And we believe that said to them: This man would believe which was really explored at length in the protections of the First Amend- in Citizens United had he been on the the Senate Judiciary Committee. Many ment extend to corporations who Court at the same time. of us felt this was such a clear defini- should be treated like persons when it Mr. MERKLEY. I say to my col- tion of the values of Neil Gorsuch, who comes to their right of free speech. league from Illinois that we will prob- tends to rule on the side of big business In the Hobby Lobby case, Neil ably never know the full vetting that and corporate elites over and over Gorsuch, who is headed for the Su- took place and the conversations that again.

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So he against that truck driver who faced being raised and how they were being got on his cell phone and he called his that terrible choice in his life, but he answered, I saw in the course of those dispatcher, and his dispatcher said: did not think for a moment what a rea- hearings a trajectory in which many Whatever you do, stay with that truck sonable, ordinary man would do under colleagues found, as they looked into and trailer. The repairman is on the the circumstances. He reduced the situ- the heart of these decisions, that there way. ation to the absurd and decided to rule was an absence of heart reflected in the So he waited a while. No one showed for the trucking company, for the cor- decisions. up. He fell asleep. By the time he woke poration. The ability to understand the full up to a phone call from a member of When you consider that this Roberts context of which something happened his family, his legs were numb and he Supreme Court has ruled on the cor- is so important. When I was a freshman was having trouble breathing. It turned porate side, the U.S. Chamber of Com- in college, I had a course, a freshman out there was no heater in the cab of merce side, 69 percent of the time, it is seminar, and that seminar was taught the truck. So there he was, facing pretty clear why they have this fond by an esteemed professor of the law hypothermia and freezing in his truck. feeling for Neil Gorsuch as the next Su- school. She would have us read the cir- Again, the dispatcher told him: Stay preme Court Justice. cumstances of a case, and then say: there. Don’t leave the truck. Does the Senator from Oregon see How would you have ruled on this case? He decided that the idea of dragging the linkage here between what the Re- We would write up our little memos, this trailer down the interstate was publicans are looking for in a Supreme our short little memos, not really dangerous and the idea of staying in Court nominee and what they would based on law because we didn’t know this truck could threaten his own life, find in this TransAm Trucking deci- the law but on common sense or what- so he made what I consider to be a rea- sion? ever life experience would have sonable decision: He unhitched the Mr. MERKLEY. My colleague from brought to bear. trailer, took the truck to the gas sta- Illinois brings up the frozen trucker Then the next week, we would read tion, filled it with gas, warmed up, and case, as it has often been referred to, the Justice’s opinions, their decisions came back to the trailer. For that con- and how it demonstrates an effort to on what they had found to be the duct, he was fired by TransAm Truck- really twist the law away from its case—did they sustain the argument ing. Because he was fired, he was original purpose in order to find for the for the defense or otherwise, and what blackballed from ever driving another powerful over the individual. arguments did they bring to bear? I was always struck that William O. truck. In this particular case, when he Douglas seemed to have the best grip This man, whom I happened to meet wrote his viewpoint, Neil Gorsuch re- on being able to place himself into the in my office a few weeks ago, Alphonse vealed a whole lot because here was a mindset and the situation of folks who Maddin, then did not know which way law specifically crafted to protect were bringing grievances forward to be to turn. He couldn’t make a living. He truckers from being fired if they oper- addressed. I think a lot of that came was a hard-working fellow out of De- ated for personal safety or the safety of from his life experience and the life ex- troit. the public. perience in which he had basically Somebody said: You can go to the Clearly, for him to have driven that lived in the wilderness part of the time. Department of Labor, and you can file trailer down the road, a fully loaded He had hung out with hobos, and he a complaint for unfair dismissal. trailer without brakes because the had ridden the rods underneath the I see the Senator has a photograph of brakes were frozen, would have been in- railroad cars to get from one place to Mr. Maddin there. credibly dangerous to all kinds of peo- another. He had experiences that were He told me he went to the Depart- ple. To stay in that cab freezing to not just inside the bubble—the billion- ment of Labor. They handed him the death was dangerous to him. You can aire bubble, the elite bubble, the gated form. With a ballpoint pen, he filled it interpret the concept of operating a community. in as to what happened to him, pro- truck, and the law said refusing to op- The opposite of that is the situation testing this dismissal and firing. He erate a truck. Well, does refusing to op- when I was in New York back in 2008 said he was shocked a few months later erate a truck mean that you refuse to and I was speaking to someone about to get a letter in the mail that said: operate it in exactly the manner that campaigning for the Senate. The indi- You win. You are right. They shouldn’t you were told to? Does it mean driving vidual said: I don’t understand why you have fired you. the cab without the trailer or the cab are so concerned about healthcare. Ev- Well, he thought that was a pretty with the trailer? erybody has healthcare—everybody. good thing and that he would get some Gorsuch zeroed in on the fact that, Well, in his world, in his bubble, every- backpay out of it. But then the appeals well, he did not refuse to operate be- body had healthcare and everybody was started, and it went in the Federal cause he drove the cab. He was oper- wealthy, but that is not the entirety of court system. By the time it got to the ating. Well, no, he was not operating in the world. Tenth Circuit, where Judge Neil any common person’s understanding. So it is so important to have people Gorsuch sat, seven different court He left the trailer there. He wasn’t on the Court who can get inside the ex- judges and administrative judges had driving it down the road. But he perience that others have and that di- considered the case of Alphonse Maddin searched for that slight little way that verse experience. You don’t see that re- as to whether it was fair to fire him he could say: Well, that does not quite flected in decisions that have been under these circumstances. Only one fit, and therefore I can find for the cor- written by Neil Gorsuch. judge out of the seven said it was the poration. I thank my colleague from Illinois. right thing to do—Neil Gorsuch, the It just fits case after case after case The Guardian wrote an article titled man who aspires to be on the Supreme in which the nominee who is before us ‘‘The Guardian view of Trump’s Russia Court. now stretched the law, twisted the law, links: a lot to go at.’’ I will share this One of my colleagues—and I think it tortured the law, in order to try to find particular article, but before I do so, was Senator FRANKEN—said to Judge a victory for the powerful over a per- let us remember that we are here at Gorsuch: What would you have done if son. this moment with three substantial you were sitting in that truck? What Mr. DURBIN. I thank the Senator issues. would you have done if you faced freez- from Oregon for yielding for questions. One issue is the fact that for the first ing to death or dragging a disabled Mr. MERKLEY. I thank my colleague time in U.S. history, a Supreme Court trailer out on a busy interstate, endan- from Illinois for coming down to help seat has been stolen from one Presi- gering the lives of others? focus on some of those cases. I appre- dent and delivered to another—the first

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The type of system where an had a vacancy in a Presidential year, did the FBI announce it was reopening an in- autistic child who, under the law, is and 15 times the Senate has acted to vestigation into Hillary Clinton—when it supposed to be receiving an appropriate consider the nominee, in some cases re- was silent about its probe into Mr. Trump’s education receives that education, but Russia ties? jecting them, in some cases—in most When the president’s own staff turn up in he didn’t get that fair square justice cases confirming them, but always act- Washington to publicly rebut his accusations from Neil Gorsuch. ing until last year. that he had been wiretapped by his prede- We are a nation of laws, but we are The second big issue is this Russia cessor, it’s not good news for the White also a nation of justice, and it sets us investigation, the investigation of the House. Yet the longer the director of the apart from so many other countries— links between the Trump campaign and Federal Bureau of Investigation, James that concept that average citizens, or- the Russians, this big cloud hanging Comey, and MIKE ROGERS of the National Se- dinary people have a way to pursue jus- over the legitimacy of the Presidency. curity Agency appeared in front of a com- tice. mittee of Congress, the worse it got. Since It needs to be resolved. That certainly During his confirmation hearing last last July, Mr. Comey said, the president’s month, Judge Gorsuch put on a great affects whether it is legitimate to be campaign has been investigated for colluding considering at this moment the Presi- with Russia to influence the 2016 election. show, kind of a friendly, everyday-man dent’s nominee before that cloud is dis- Donald Trump’s election machine is coating show, but when it came to making de- sipated or resolved because this indi- his White House with sewage. cisions, the ordinary person lost out on vidual, whoever is confirmed for this Yet Donald Trump, with the insouciance of these decisions time after time after seat, will quite likely serve for many a Bourbon monarch, shows no sign of taking time. decades. When it is a younger nominee, any notice of the facts. Nor, it seems, will he We have a far right, extremist judge retract false claims, nor will he be held ac- as it is with Neil Gorsuch, that could outside of the mainstream who, in case countable for his dissembling. Mr. Trump is after case, has twisted the laws to deny be five decades. It could be an exten- prepared to carry on in disgrace. He spent sive length of time with decisions that average Americans the justice they de- the minutes after his own intelligence offi- serve. He is so far out of the main- stretch far into the future. cers called him out for peddling falsehoods Rather than rush through this in a by trying to create a bizarre counter nar- stream that he would be the most con- few days, we should be setting this rative with the @POTUS twitter account servative Justice on the Supreme aside until these issues are resolved to that stretched his credibility so far it Court—further to the right than Jus- make sure that we have established the snapped. tice Antonin Scalia or Justice Clarence legitimacy of the President’s role in of- Well, this article continues to go into Thomas, according to an independent analysis by the Washington Post. The fice and gotten rid of this cloud hang- how just an amazingly absurd situation Post came to this conclusion by exam- ing over him. this is at this moment. The third, of course, is the nominee I was really struck that what seemed ining the Tenth Circuit’s opinions that himself. I so much appreciate my col- to have transpired just a few days ago have been delivered since Gorsuch league from Illinois proceeding to, was that the White House, some key joined the Court in 2006. The Post con- cludes: through his questions, raise a number advisers in the White House, some very of the points about Neil Gorsuch’s top advisers, called up the chair of the The magnitude of the gap between Gorsuch House Intelligence Committee and and Thomas is roughly the same as the gap record. There is the case of the frozen between Justice Sotomayor and Justice Ken- trucker. We did not talk about the case said: Hey, come over here to the White nedy during the same time period. In fact, of the autistic child, but that is very House. We want to brief you on some our results suggest that Gorsuch and Justice similar, where the law—and it is simi- information that shows that maybe Scalia would be as far apart as Justices lar in this sense—the law was quite there was some intelligence picked up Breyer and Chief Justice Roberts. clearly written to promote a particular on Trump in the course of other intel- We can see this extremism by exam- resolution of a challenge, and that is ligence activities. ining some of Judge Gorsuch’s signifi- that every child, despite their dis- So the chair goes over to the White cant cases. ability, would have the opportunity to House, gets briefed, comes back to the Earlier, my colleague from Illinois have an appropriate education. Neil House, holds a press conference, and came in and spoke about the frozen Gorsuch managed to reduce that down says that he has this information from trucker case. Alphonse Maddin was a to mere improvement over de minimus; a whistleblower, and he has to go back truckdriver who was transporting that is, basically a tiny little bit of im- over to the White House to brief the cargo through Illinois when the brakes provement over doing nothing. That President. on his trailer froze because of subzero was the Neil Gorsuch standard. The whole thing was phony. The in- temperatures, and he did the respon- That standard went to the Supreme formation came from the White House. sible thing. He got off the road. He Court. The Supreme Court just re- The whole thing was set up to look as pulled over. He refused to drive under cently issued its decision, and it was though there was some magnificent hazardous conditions, and he called for not a confirmation that it is OK to new information that somehow con- help. have just a mere improvement over firmed some theme or line the Presi- After reporting the problem to the doing nothing, it was a wholesale rejec- dent was advocating. I mean, this was company, he waited 3 hours in freezing tion, because the law is very clear, and Keystone Cops. That is the place we temperatures for a repair truck to ar- Neil Gorsuch tormented it and twisted have come to in this administration. rive. He couldn’t even wait in the cab it and tortured it to produce a position So those are certainly the concerns of his truck to keep warm because the that you can do nothing and meet the that I have. auxiliary power unit was not working. standard of the law that says you have I think it is important to continue After those 3 hours, his torso went to do quite a bit. focusing on the Gorsuch nomination. numb, and he began having difficulty So it was 8 to 0. It was not six out of Let us recognize the setting in which breathing. He couldn’t feel his feet. So eight or seven out of eight, but eight this is happening. he unhitched the truck—that is the out of eight. Every Justice, no matter Certainly we have a nominee who trailer, the loaded trailer, and left it where they were in the ideological seems to want a 19th century judicial there. He drove the cab, seeking to find spectrum, said: That is an absurd find- philosophy for the 21st century. The a place he could get warm, and then he ing and overthrew the Neil Gorsuch de- preamble to our Constitution states: returned to the truck when the repair- cision. ‘‘We the People of the United States, in man was arriving. (Mr. BARRASSO assumed the Chair.) Order to form a more perfect Union, es- The law is specifically written to say So we have these three substantial, tablish Justice.’’ That is a vision that that you can’t fire a truckdriver for re- major issues to consider, and that is reminds us that we are a nation of fusing to operate a truck in a fashion why this conversation should be set laws, where individuals like the frozen that will cause dangers to others. And aside until we resolve the Russia inves- trucker can go to the authorities and that is what he did; he refused to keep tigation. get a fair, square deal, a deal that re- driving with those frozen brakes in I will read ‘‘The Guardian view of flects the fact he was unfairly fired, order to avoid causing danger to oth- Trump’s Russia links.’’ It says: but he didn’t get that from Neil ers.

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On March 22, Judge erating a cab unhitched from a trailer ing progress in generalizing skills, ap- Gorsuch’s ruling was overturned by the is not the same as operating a truck plying skills he learned at school to eight members of the Supreme Court. with the trailer. The purpose of the other environments. Despite his appro- It wasn’t a 5-to-3 or 6-to-2 or 7-to-1 de- driver is to deliver the goods. priate social interactions at school, he cision; it was 8 to 0. So, quite frankly, he did exactly often had severe behavioral problems They felt that the standard Gorsuch what he should have done for his per- at home and public places, including put forward was totally incompatible sonal safety and the safety of others. violence. The public school’s inability with the way the law was written. That He was fired for it, which is what the to meaningfully improve Luke’s ability is a very telling situation to have eight law is written to stop. Everyone else to generalize basic life skills put enor- Justices, through a large spectrum, see got this, but not Neil Gorsuch. mous stress on the family and exposed that the world is quite different from Neil Gorsuch looked for a strategy the limitations of what the school was the world of Neil Gorsuch, where the that he could possibly find to favor a able to provide. law gets twisted to find for the power- company over an individual, and that His parents found a program designed ful over the individual. is really of great concern. for children with this form of autism, a Judge Gorsuch’s ruling was over- In his dissent—Neil Gorsuch was not place that specialized in that, a place turned through a unanimous vote in in the majority. He wasn’t making the that knew how to approach it. They the case of Endrew F. v. Douglas Coun- decision. He wasn’t writing the major- worked at getting him admitted, and ty School District during the final days ity opinion. He had a dissent. they succeeded. It was a great oppor- of Judge Gorsuch’s confirmation hear- He strained the reading of the stat- tunity for Luke to not only learn im- ings, March 22. In that case, another ute. He went out of his way to mini- portant life skills but to be able to autistic child, who also has attention mize the words ‘‘health and safety’’ in apply them outside the classroom. deficit disorder, had been removed the law. He stated that finding for the Luke got in, and he began to flourish, from public school since the fifth driver was improperly using the law getting the attention and specialized grade. Like Luke, he went on to make ‘‘as a sort of springboard to combat all instruction that his condition merited. great progress in a private school. His perceived evils lurking in the neighbor- So Luke’s parents, knowing that the parents said the education plan that hood’’ and that the objective to pro- IDEA requires that children with dis- the public school created was not help- mote health and safety was ‘‘ephemeral abilities are entitled to a free edu- ing, and they sued the school district and generic.’’ cation, applied to the school district to compel them to pay for the private Well, clearly the finding that a for reimbursement of the new school’s tuition. It was basically a mirror ex- trucker who was fired because he re- tuition, but the school district said ample of Luke’s case. fused to operate the truck—the cab and they wouldn’t fund that because they In speaking for the Court, Chief Jus- the trailer—in unsafe conditions be- could meet the goals of Luke’s updated tice John Roberts said that Judge cause the brakes were frozen, when the education plan. But the problem was, Gorsuch’s de minimis standard was too law says you can’t fire a trucker for re- they couldn’t. That experience had al- low and that the Federal law demands fusing to operate a truck in unsafe con- ready occurred, and the district had more, that it requires an educational ditions—that is about not providing a fallen short. program that is reasonably calculated very specific danger to the community. At the due process hearing, the State to enable a child to make progress ap- How do you get from that to say that level hearing, Luke’s parents prevailed. propriate in light of the child’s cir- finding for the driver was a framework They laid out their case. The hearing cumstances. ‘‘to combat all perceived evils lurking compared the situation to the law and Chief Justice John Roberts went on in the neighborhood’’? As if somehow the requirements in the law, and to say in his majority opinion that it deciding the case on the pure merits Luke’s parents won. cannot be right that the IDEA gen- and the pure law, finding a case on be- It went up to the Federal district erally contemplates grade level ad- half of an individual was somehow court. Again, looking at the case, look- vancement for children with disabil- opening a Pandora’s box of bad deci- ing at the law, the parents prevailed. ities who are fully integrated into the sions that would affect other situations At each level, a hearing officer judge regular classroom but is satisfied with where maybe corporations that made a determined that Luke wasn’t getting merely more than de minimis progress. mistake would have to pay a fine. That the help he needed at the public school. No. The IDEA contemplates grade would be unacceptable. They concluded that, by failing to help level advancement, and it cannot be I don’t know what he meant by ‘‘a him generalize his skills, they failed to squared with the standard that Neil sort of springboard to combat all per- provide him with the free appropriate Gorsuch put forward in his saying ceived evils,’’ but I know it is totally education he was entitled to under the ‘‘merely more than de minimis.’’ disconnected from the pure facts of the law. Speaking in front of the Court, the frozen trucker case and the law that Each looked at the facts and said: Solicitor General specifically noted guided it, and that is why the court Only the specialized residential school that Judge Gorsuch’s interpretation of found in the trucker’s favor. could provide the education he needed, the IDEA’s requirement is not con- In short, in reaching his conclusion, and the school district must reimburse sistent with IDEA’s text or structure Judge Gorsuch took an extremely nar- the family. with this Court’s analysis or with row view of the statute, remarking Well, the school district appealed all Congress’s stated purposes. Basically, that it only forbids them from firing the way up to the Tenth Circuit— that is the outline of the autistic employees who refuse to operate a ve- Judge Gorsuch’s Tenth Circuit. And child’s case. hicle out of safety. That is exactly, of what happened on the Tenth Circuit? Let’s turn to the Utah en banc re- course, why he did it. Well, writing the opinion for the ma- quest, the Planned Parenthood Asso- I think that all along that case, you jority, Judge Gorsuch stated that ‘‘the ciation of Utah v. Herbert. saw common sense, a clear view of the educational benefit mandated by IDEA In August of 2015, Gary Herbert, facts, and a clear view of the law on ev- must merely be more than de mini- Utah’s Republican Governor, ordered eryone’s behalf, except for one indi- mis.’’ A way to translate that, ‘‘merely the State to strip $272,000 in Federal vidual, and that individual was Neil more than de minimis’’ means a tiny funding from the Planned Parenthood Gorsuch, who is before us. bit more than nothing. That is the Association of Utah in response to a se- Let’s turn to the case of the autistic standard. That is the Gorsuch stand- ries of hidden camera videos that were child. Luke P, a young child with au- ard. In effect, Judge Gorsuch argued released by the Center for Medical tism, began receiving special education that you meet the law designed to in- Progress. They were attacking Planned

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Yet takes a little longer. no merit, Governor Herbert stood by Judge Gorsuch said: No, we should His world view really began to take his order to cut Planned Parenthood’s have the entire group of judges recon- shape at Columbia when he cofounded funding. Utah’s Planned Parenthood sider this—a judge pushing this for- the Federalist, which was the school Association decided to fight back by ward when the defendant did not even newspaper, and a magazine called the filing for and temporarily receiving a push it forward. He was willing to ig- Morningside Review. In writing for the restraining order against the State. nore court practice and custom, to publications, Judge Gorsuch defended In spite of his continued claim—that mischaracterize facts in law to ensure social inequality, saying it allows men is, the Governor’s claim—that strip- that Utah’s Republican Governor could of different abilities and talents to dis- ping funding was not to punish the or- eliminate funding for Planned Parent- tinguish themselves, as they wish, ganization for its stance on abortion hood. without devaluing their innate human but was in response to the videos, Gov- He made a reference to kind of the worth as members of society and argu- ernor Herbert eventually admitted, deference to elected opinion. That, in ing that a responsible system requires while responding to Planned Parent- itself, is very strange. Isn’t your job to a governing class that is comprised of hood’s motion for a preliminary injunc- find out whether the circumstances fit men of exceptional political ability and tion, that the events in the videos in- the law and, if someone has been short- spirit of concern who craft laws and volved other Planned Parenthood af- changed, to rule for him and not to run the government. filiates in other States, not Planned defer to someone because he has the When I read this, it made me think of Parenthood in Utah. There was not title of ‘‘Governor’’ before his name? Plato’s ‘‘Republic.’’ In Plato’s ‘‘Repub- even an accusation that Planned Par- In the majority’s opinion, Judge lic,’’ he lays out a vision of the guard- enthood in Utah had strayed beyond Mary Briscoe wrote separately to high- ians, kind of this superior group of men the law. light the troubling nature of Judge who find just the right solutions. It The organization in Utah does not Gorsuch’s dissent. She noted first how sure sounds like that—a responsible participate in that research program unusual and extraordinary it would be system that requires a governing class that was attacked in that video. There for the Tenth Circuit to have one of its that is comprised of men of exceptional was no connection—not geographically own make a motion for an en banc re- political ability, spirit, and concern, to Utah and not through the substance view when neither party to the litiga- who craft the laws and run the govern- issue of a tissue research program. tion sought such a review. Second, ment—in other words, a government by None of the Federal funds that go Judge Briscoe emphasized that Judge the elite. Through his decisions, we see through the State’s health department Gorsuch repeatedly mischaracterized that it is not just by the elite and by to Planned Parenthood fund abortions, this litigation and the panel at several the powerful, it is for the elite and for which is an important point. turns. the powerful. That is a long way from Let me reemphasize that the accusa- Another judge in the majority point- equality under the law, and that is a tions made by the videos about ed out that none of the parties asked long ways from justice for all. And he Planned Parenthood and its affiliates for a rehearing within the time per- characterized efforts to fight racism as were false. mitted and that there was no justifica- ‘‘more demand for the overthrow of What the Governor’s response has tion for polling the court on that ques- American society than the forum for made clear is that he was, in fact, pun- tion at all. Apparently, an unidentified the peaceable and rational discussion ishing Planned Parenthood of Utah for judge had requested that the judges be of these people and events.’’ its constitutionally protected advocacy polled. We have a substantial amount of rac- and its services that include abortion. So we have here—as we have in the ism still embedded in our Nation, and That is a very, very small part of what case of the autistic child, as we have in we see it come out in unexpected ways. it does. the case of the frozen trucker—another The first I was really aware of the rac- A three-judge panel on the Tenth Cir- case of twisting the law to try to come ism that we have in our society was cuit Court of Appeals granted a pre- out with an outcome that is not mer- when I was a 19-year-old and I was an liminary injunction to Planned Parent- ited by the facts of the case or the intern for Senator Hatfield here. I was hood, concluding that Utah’s Planned plain language of the law. That really assigned to open all of the letters each Parenthood was operating lawfully and is a significant concern. morning because I was the last of the that the Governor’s personal opposi- Judge Gorsuch has been a lifelong three summer interns to arrive, and tion to abortion could likely be dem- ideological warrior. The quote from that job went to the last person. I onstrated as a motivation for blocking Henry Kissinger that he used in both started opening these letters, and the Federal funds. Therefore, the Governor his high school and Columbia year- job was to sort them, to get them into was targeting a health organization, in books might have been intended as different piles according to topic for violation of its constitutional rights. joke, but it warrants some consider- the different corresponding legislative We have these basic concepts, like ation in light of his record: correspondents who would then write equality under the law. You cannot The illegal we do immediately. The uncon- replies. But as I read the letters, I just choose and pick, basically, whom stitutional takes a little longer. would read one letter and there would you like and dislike. In light of these cases, where in case be an attack on Seventh Day Advent- Here is what happened. In spite of after case he stretched the law, tor- ists. In another there would be an at- that Tenth Circuit’s finding of those tured the law, twisted the law to find tack on African Americans. In another, three judges, who all found on the side for the powerful—the Constitution has there was an attack on immigrants, of Planned Parenthood, Judge Gorsuch a vision of equality before the law. Our and so on and so forth. There were at- dissented from the court’s denial and Constitution has this vision of justice tacks on Mormons. There were attacks requested that it be considered en for all so that when a judge does not on every possible group. banc—that is, by the entire Tenth Cir- pursue equality before the law, does It made me think about how Oregon cuit set of judges. This is very unusual not pursue justice for all, then that was at one time a territory that ex- because the Governor who lost the case really is kind of a venture into the un- cluded African Americans, and at a was not asking for it to be reconsid- constitutional. That is exactly what later date it came to have the largest ered, and Planned Parenthood was not happened in the case of the autistic Ku Klux Klan in the Nation—Oregon. asking for it to be reconsidered. It was child, where the Court said: Your deci- You wouldn’t imagine that. I saw no a done deal. The arguments that the sion was unconstitutional. Your deci- signs of this racism growing up in the Governor had brought basically fell sion to say that a little bit more than suburbs of Portland or down in

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For of are still deeply wedded to racism and Commission fined employer Encompass some, religion provides an essential source of guidance both about what constitutes wrong- discrimination, and they have kind of Environmental because the company ful conduct and the degree to which those come out and made themselves more failed to properly train Chris Carter, a who assist others to commit wrongful con- publicly available. They have kind of worker who was electrocuted. He did duct themselves bear moral culpability. shared their thoughts more readily, not recover. He died. What that case really amounted to and they have engaged in more racist Chris joined the construction project was saying that religious preferences of acts against others. a week after it had begun. Because he the employer—a corporation—trumped So we have more people who have was not trained in that specific work, the religious choices of the employ- been attacked in parking lots because he brought a piece of equipment in con- ees—the individuals. That is the scary of their race, or we have more situa- tact with an overhead line. This was thing about Hobby Lobby—giving cor- tions where graffiti has been scrolled specifically something the company porations expansive control while you on the side of buildings. We have had trained others to avoid, but he diminish the realm of private rights. mosques that have been burned. We wasn’t trained in it, and the result is The Hobby Lobby decision has al- have synagogues that have been de- he died. ready been invoked—not only sup- filed. We have individuals who look to The Tenth Circuit on which Neil porting curtailing employees’ access to be Middle Eastern being attacked be- Gorsuch serves upheld the fine against reproductive healthcare but also to jus- cause they are looking like they are the company for the failure to train, tify noncompliance with child labor Middle Eastern. saying that it was ‘‘undisputed that laws, anti-kidnapping laws, and anti- So, clearly, as to racism, we are not Encompass did not give this employee discrimination laws. discussing this challenge in America, any instruction on the fatal danger As a lawyer, Neil Gorsuch wrote a pondering how we come to a full re- posed by the high voltage lines located brief in Dura Pharmaceuticals v. spect for each and every individual in in the vicinity of the work area.’’ Broudo, urging the Court to ignore the our country. That cannot be character- The company’s own job hazard an- statutory legislative history of the Se- ized as a demand for the overthrow of nouncements found a fatal danger from curities and Exchange Act and advo- American society, unless your concept the high-voltage power lines involved cating that the Court limit the avail- of American society is one that is a and recommended training for employ- ability of those who confronted the White supremacist viewpoint, and then ees that would instruct them to keep corporation to band together to seek respect for everyone else perhaps is an at least 20 feet away from those power redress. overthrow of society. lines. A lot of the employees got that In a 2005 article, Gorsuch launched Now, I am not saying that Neil training, but Chris Carter didn’t, and into an attack on plaintiffs’ lawyers Gorsuch was coming from that par- he died. for such cases. The lawyers were just ticular viewpoint, but he certainly While all of the Tenth Circuit upheld looking for a free ride to vast riches, he shows in his quote that he has great the fine against the company, Judge concluded. They involved frivolous difficulty considering a conversation Gorsuch dissented. He said that, as to claims, taking an enormous toll on the about racism to be a legitimate and the Occupational Safety and Health economy and on virtually every cor- important conversation for making Review Commission, which fined the poration in America at one time or an- America a better place, embracing the employer, that fine was yet another ex- other, costing businesses billions of strengths of all of our citizens who ample of an administrative agency dollars in settlements. come from diverse backgrounds. It wielding remarkable powers and penal- So Neil Gorsuch has taken positions can’t be that this is ‘‘more demand for izing a company where no evidence ex- making it more difficult for class ac- the overthrow of American society isted. If it had been up to Neil Gorsuch, tion lawsuits to proceed. than a forum for rational discussion of Encompass Environmental would not Well, what is a class action lawsuit these people and events.’’ It is a discus- have had to pay this fine. It would and why is it so important in our sys- sion that we need to have. never have been accountable for the tem to have class action lawsuits? Judge Gorsuch is absolutely coming negligence that ended in this tragic, Imagine that you are in a situation into the Court with a view of expansive unnecessary death. where, for example, maybe a tele- rights for corporations. It is striking to me that despite the communications company gets in- For a long time in our Nation’s his- fact that the company itself knew volved in slamming charges onto your tory, our biggest businesses and cor- about this hazard, and the company bill that you never asked for, and porations certainly ruled the roost, and itself trained other employees to avoid maybe that costs you $10 a month for we had the barons who came from Big the hazard but failed to provide the some service put on your long-distance Oil and Big Railroad and Big Copper, training in this case, Neil Gorsuch bill or on your cable bill or on your and their wealth and their station in really somehow believes that there was worldwide net band bill, and you pro- life ensured that they really had a lot no error made by the company; that, ceed to notice this, but they put this of power over the people around them. somehow, it is unfair if you are penal- on without you authorizing it. Yet it is Over time, we gave and developed izing the company. $10. You can’t possibly afford to go to standards so that people couldn’t be ex- The ultimate example of Gorsuch’s court to take on this predatory con- ploited to the extent that they were ex- efforts to expand the rights of corpora- duct of charging you for something you ploited under these barons. We had de- tions came in the Hobby Lobby case, never ordered, but when you realize veloped labor and safety standards, and which held that corporations are per- there are often tens of thousands of we had developed minimum wages and sons exercising religion under the pur- other people who have also been the 40-hour workweeks and overtime—real- poses of the Religious Freedom Res- victims of this illegal predatory action, ly quite an amazing transformation of toration Act. Therefore, according to then a class action lawsuit gives you the workplace. We made great strides the ruling, closely held, for-profit sec- the ability to band with those other in the course of the 20th century. We ular corporations could deny their fe- folks to take on that predatory con- recognized that American workers are male employees the legal right to con- duct by the corporation, and that helps entitled to be treated with respect in a traceptive coverage as part of their to dissuade a corporation from being safe working environment. employer-sponsored health insurance involved in predatory conduct to begin But there are other cases other than plans. with. the frozen trucker case where Judge The Tenth Circuit upheld this posi- This can be involved in all sorts of Gorsuch has put the interest of the tion, but that wasn’t enough. In a sepa- things. It could be misrepresenting a company or the corporation above the rate opinion he couched this expansion product that is being sold, a physical

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.164 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2293 product, or not warning about its hav- the harassment, and Judge Gorsuch Judge Gorsuch, unlike his two col- ing a danger that any rational person found with the majority. leagues, dissented from the decision. should have warned you about, or mis- Judge Paul Kelly’s majority opinion He would have decided the case could representing stocks in some type of a concluded it was Pinkerton’s perform- not have gone to a jury, arguing that a scheme where thousands of people are ance, not discrimination, that resulted reasonable juror could have found that sold something, but what they buy is in her termination, but the dissenting Strickland was a victim of sex dis- not what they were promised, and so opinion said that it should be a jury crimination. He himself decided the es- forth. who decides at what point Pinkerton’s sence of the case rather than giving her So class action is a powerful tool for failure to report the harassment be- an opportunity to have her day in justice, but you see in case after case comes unreasonable, that the termi- court, in spite of the substantial evi- after case, complete disdain by Neil nation just days after the investigation dence she brought forward. He would Gorsuch for class action lawsuits. He was completed raised a genuine issue of have denied an employee the oppor- sees them as a burden on the corporate fact about her claim of retaliatory dis- tunity to hold a corporation account- enterprise of America. charge, especially considering that the able for their mistreatment. Well, I believe that it is important to State department of transportation We see the theme in these cases, one stop illegal predatory conduct, and in testified that the most serious error after the other. When fellow judges cases where you can’t possibly afford leading to Pinkerton’s firing was an al- found that a person had a reasonable to go as an individual, class action is legedly mishandled call from an em- right to make their case, he dissented an important strategy. ployee’s daughter that happened 4 and worked to block a chance for an in- In one case, Shook v. The Board of years earlier, and the director tried to dividual to have their case heard. County Commissioners, he prevented a get Pinkerton another job with the There is a list of cases we have been group of inmates with mental illnesses State department of transportation going through, but I want to go back who were not receiving proper care only months before she was fired. But and recap why we are here in the Sen- from joining together to request that Judge Gorsuch joined the majority and ate hearing this nomination and decid- the jail meet its constitutional obliga- did not give Betty Pinkerton the ing whether to confirm this individual, tion to provide medical care. Shook chance to confront her employers in a Neil Gorsuch. This story is one that may not have involved a corporation, court of law in front of a jury. In other really begins with the death of Antonin but the same legal reasoning Judge words, she wanted her day in court to Scalia. Gorsuch applied in that case can be make the case. Antonin Scalia died in February of used to limit class action lawsuits The minority in that case said: Yes, last year. Within hours, the majority brought against companies and against she should get her opportunity to make leader had decided to pursue a strategy corporations. There were a number of her case. There is enough evidence, and of asking the Senate—really, demand- other cases in that category, and there it should be presented. She can make ing the Senate—ensuring that the Sen- are cases that essentially highlight her case and the department can make ate not fulfill its constitutional advice their case—not to preempt the oppor- issues of discrimination and sexual and consent responsibility. If only at tunity for her to have her day in court. harassment and Judge Gorsuch’s views that moment my colleague the major- But that is where Judge Gorsuch ended on that. ity leader had thought: This is a big In Pinkerton v. Colorado Department up. deal. Asking the Senate to not exercise Then there is Strickland v. United of Transportation, Judge Gorsuch its advice and consent responsibility— Parcel Service, UPS. In this case, joined an opinion discounting Pinker- that is a big deal. Maybe I should wait Judge Gorsuch concurred in part, while ton’s evidence of discrimination and a day and think about this. also dissenting in part from an opinion But no, there was a rush to the floor concluding that her performance, not holding that Strickland provided to lay this out, and that became the discrimination, resulted in her termi- ample evidence that she was regularly path this body has been on ever since. nation. outperforming her male colleagues, A month later, in March, the Presi- Betty Pinkerton was an administra- and yet she was treated less favorably dent did his job under the Constitution: tive assistant. She alleged that her su- than they were. He nominated Merrick Garland, and it pervisor had made inappropriate, sexu- Carole Strickland was a female driv- was forwarded over here to the Senate. ally explicit remarks to her over a pe- er for UPS who alleged sex discrimina- The normal thing would be for the Sen- riod of several months and that she tion and quit under pressure. Two ate to start hearings, but the Repub- was fired when she reported the harass- judges on the Tenth Circuit panel over- lican majority leadership said: No. No ment. Pinkerton specifically alleged turned a lower court decision granting hearings in the Judiciary Committee. that her supervisor asked her whether UPS judgment as a matter of law. In Why not? It is our responsibility to she had sexual urges and asked about doing so, they emphasized that Strick- provide advise and consent on nomina- the size of things that a boss should land provided ample evidence that she tions, and there is no nomination more not ask about, and he actually com- was regularly outperforming her male important than the nomination to the mented on a whole series of things colleagues, and yet she was treated less Supreme Court of the United States of which I don’t think I will read into the favorably, including direct testimony America. It isn’t someone who just RECORD but which were totally inap- of several of her coworkers that she serves for a couple of years in the ad- propriate in a workplace setting. was treated poorly or worse than oth- ministration or maybe for a full 4 years After her supervisor asked to go to ers. of the administration; it is somebody her house for lunch, Pinkerton called Strickland’s coworkers testified that who serves for life. And it is not some- the internal civil rights administrator supervisors treated her differently one like a district judge or a circuit and complained and then made a for- from her male colleagues. She met 93 judge who can write an opinion but mal written complaint 7 days later. An percent to 104 percent of her sales then have it overturned at a higher investigation that followed led to the quotas, was outperforming some of her level; the Supreme Court is the higher supervisor’s removal, but shortly after coworkers on every measure, and yet level. It is the highest level. The buck the supervisor was fired, Pinkerton was she was singled out to attend indi- stops with the Supreme Court. also fired. She sued, claiming that the vidual meetings—the only one who had Given the lifetime appointment and department of transportation was lia- to make written sales commitments enormous power to set precedent for ble for the hostile work environment even though no one was at the 100-per- what the meaning of our Constitution imposed by the supervisor and that she cent quota level. is makes the Supreme Court nomina- had been fired because she had raised One of the men in her office had tion fantastically important. So it is this issue and this conduct. lower performance than Strickland in shocking that we failed to do our job as There was a divided panel that af- almost every sales measure but was a Senate—to hold hearings, to hold a firmed a summary judgment in favor of not required to attend these meetings vote, and to send the issue to the floor the Colorado Department of Transpor- to discuss work performance and was and hold a debate on Merrick Garland. tation, which held that Pinkerton had not counseled on failing to reach 100 Some Members said: This is in keep- waited too long—2 months—to report percent. ing with tradition for an election year.

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.165 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2294 CONGRESSIONAL RECORD — SENATE April 5, 2017 Well, no, it is not in keeping with seat and get away with it, the tempta- the team of individuals who make this tradition. We have had 16 nominations tion next time is to steal another body work in order to provide for the during an election year. A few of them seat—either to double down on the opportunity for extended debate, some- came after the election. Yet there was strategy or rebalance the first crime times here under extraordinary cir- still a nomination, and the Senate still against the Constitution. And each and cumstances. Because I have been here acted. On others, the vacancy occurred every time, it will deepen the divisions, through the night speaking, one of before the election, and the President and it will diminish the legitimacy of those extraordinary circumstances was chose not to fill or not to produce a the Court. In the 5-to-4 decisions that this night that has just passed. The nominee until after an election, and we see in the future from the Supreme stenographers, the Parliamentarians, still the Senate said there is time to Court, we are looking to say every sin- the pages, our doorkeepers, our caucus act. In nine other cases, the vacancy gle time that it is Justice Merrick Gar- staff, the bill clerks, and others who came before the election, the nomina- land’s stolen seat—President Obama’s staff the desks in the offices in the tion came before the election, and in stolen seat. Every time that person is Democratic and Republican cloak- eight of those nine, the Senate acted. in the positive side—the winning side rooms—I am excited to see the set of In 15 cases out of 15 cases before of a 5-to-4 decision—the Court would smiles on the pages’ faces. I don’t know Antonin Scalia died, the Senate decide it differently if the seat weren’t if the same pages were here all night or acted—confirming most, rejecting a stolen, if the Court weren’t packed. not. Well, they will hopefully really get few, but they acted. They exercised ad- That decision doesn’t really have legit- a lot out of this opportunity to serve vice and consent. Then last year the imacy because it was the result of here. But thank you to all the staff Senate failed for the first time—the court-packing. That is not the way we members who have labored during the first time in U.S. history—to act. want to be viewing the Supreme Court. wee hours of the night and into this We can think of this as a kind of We want to have a Court of wise, morning. lengthy, lengthy filibuster of a Su- thoughtful individuals with great I was summing up the issues that we preme Court nominee. Some of my col- depth and knowledge of the law, com- labor under and noting a significant leagues have said: It doesn’t seem right bined with a terrific diversity of life one is the stolen Supreme Court seat that a minority—41 Senators—can stop experience. They can put themselves and the damage that completing that us from getting to a final vote. But it into the position and identify with the theft will do to our institutions. I have is right. It is a tradition that a 60-vote challenges faced in an authentic man- been going through a number of cases standard to approve a nominee to the ner. That is important. That strength- that are related to the far-right, anti- Supreme Court is essential to make ens the Court. But it weakens the we-the-people vision of Neil Gorsuch, sure that a nominee has bipartisan sup- Court to have a Court packed as a from the frozen trucker case, to the au- port, that they are from the judicial crass, political tactic and to do it tistic child case, to the worker suf- mainstream, that they have judicial through a stolen seat. fering sexual discrimination or gender temperament, and that they fit this So that is why it matters—that it discrimination at work—all of these very important role, this task which hurts the integrity of this body and it cases that have come forward. they are going to be assigned to do and hurts the integrity of the Court. It in- We have the third issue, of course, which they might do for many, many volves the participation of the Presi- being that cloud that is hanging over decades to come. That is why we have dent because the President provided a the Presidency because of the inves- a 60-vote standard. nomination, and that hurts the integ- tigations underway at this moment What happened last year was a com- rity of the executive branch. In other into the role the Trump campaign may plete refusal to act and 290-plus days of words, it is a lose-lose-lose proposition. have played in communicating with or failure to act—plenty of time to act to There is still time to take this train off collaborating with the Russians in fulfill our responsibility. It would be the tracks and not result in this very their extensive strategy to interfere different and we would be having a dif- unfortunate potential outcome. with our Presidential election. So ferent discussion today if the Senate The second reason we are at this there are a lot of concerns. had considered the nominee and re- point is that this nomination is just This should be the last case where we jected the nominee. being rushed through as quickly as pos- are cutting short the debate by filing a So why didn’t the majority leader sible—brought to the floor imme- petition to close debate on the opening simply say: We don’t like this nominee, diately after the committee vote. day, but there it is—another first, an- so we are going to probably have a de- Then, for the first time in U.S. history, other degradation of the institution. bate and we are probably going to vote not only was it brought to the floor the Dahlia Lithwick wrote in November: the nominee down. The reason why is day after the committee vote, but it We are already hearing from Republicans everyone loved Merrick Garland. He was brought to the floor and then im- and Democrats in leadership positions that was right down the middle. He had it is incumbent upon Americans to normalize mediately a petition was filed to close and legitimize the new Trump presidency. great quotes of support from both sides debate. For the first time in U.S. his- We are told to give him a chance, to reach of the aisle. He didn’t have a history tory, on the first day of debate on a Su- across the aisle, and that we must all work like the history I am describing with preme Court nominee, that a petition hard, in President Obama’s formulation, to Neil Gorsuch, which raised eyebrows was filed to close debate. That petition, make sure that Trump succeeds. But before time and time again, or where he was under our rules, forces a vote on you decide to take Obama’s advice, I would kind of legislating from the bench. He whether to close debate on Thursday, implore you to stand firm and even angry on didn’t do that the way Neil Gorsuch long before the Senate has had a full this one point at least: The current Supreme Court vacancy is not Trump’s to fill. This has done. chance for everyone to make all of So that is the big issue, that we have was President Obama’s vacancy and Presi- their points and thoughts. dent Obama’s nomination. Please don’t tac- a strategy of stealing a Supreme Court Mr. President, a point of Parliamen- itly give up on it because it was stolen by seat in order to pack the Court. It has tary inquiry—— unprecedented obstruction and contempt. In- never been done before, and we are in The PRESIDING OFFICER. The Sen- stead, do to them what they have done to us. the middle of it now. And if this week ator will please state his inquiry. Sometimes, when they go low, we need to go goes as the majority leader said he was Mr. MERKLEY. What is the agreed- lower, to protect the thing of great value. going to make sure that it went, then upon schedule to resume the normal I don’t love the way that is phrased, the theft is going to be completed by activities of the floor? that is for sure. Because in my mind, Friday. The PRESIDING OFFICER. The Sen- the point here is to guard our institu- So I have been here through the ate has a previous order to stand ad- tions and make them work better. night talking about this, to say how journed when the Senator is finished That is the high road. That is not going important this is that we not do this— speaking until 9:30 a.m. lower; that is going higher. We must that to proceed to fill this stolen seat Mr. MERKLEY. I appreciate that strengthen and defend these institu- will damage the Court for decades to clarification. I am going to make this tions that are being torn asunder by come and will damage the Senate for comment now, in case I might forget this strategy of stealing a Senate seat. decades to come. If you can steal one later. I want to give special thanks to That is an article from the Slate.

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.167 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2295 The Miami Herald says: ‘‘Supreme Let’s be clear. We have had 16 vacan- tional malpractice with lasting con- Court Nominations Will Never Be the cies in the course of an election year sequences’’. So one question we have Same.’’ during our 200-plus years of history, not talked about too much in this de- The story of the Supreme Court in 2016 can and never before did a majority refuse bate through the night is how voters be summarized in a statistic: It’s been 311 to exercise their advice and consent re- view this GOP maneuvering to push days since Justice Antonin Scalia died on sponsibility under the Constitution, ar- through Trump’s ultraconservative Su- February 13, and his seat remains unfilled. guing that it is a lameduck President. preme Court nominee. This is a na- That is not the longest Supreme Court va- tional survey of likely voters by Green- cancy in the modern era, but it’s about to That is not embedded in the Constitu- enter second place—and it will become the tion. It is not embedded in the Senate berg Quinlan Rosner Research. It notes longest if Donald Trump’s nominee isn’t con- rules. It is not embedded in history. It the following: firmed about the end of March. is not embedded in any logic. When you In the wake of President Donald Trump’s This striking fact will be front and center elect a President, you elect him for 4 nomination of Neil Gorsuch to the U.S. Su- when the history of the court in 2016 is writ- years. preme Court, a new national poll shows that ten, but what really matters isn’t the length Obama was elected, not by a small voters believe that the nomination has real of the vacancy. It’s the election in the mid- consequences for the direction of the coun- dle of it. The Republican Senate changed the margin, not by an electoral victory try. Voters strongly oppose efforts by the rules of confirmation drastically by refusing combined with a citizen majority loss. Republicans to change the rules in order to even to consider Judge Merrick Garland’s No, he won the citizen vote massively, push through Trump’s ultraconservative nomination. And against the odds, it paid off as well as winning the electoral col- nominee. for them. lege. He won it twice. You can’t look Americans see this as a fight that It is interesting because we talk for a better endorsement for the role of matters to them. When presented with about the nuclear option of changing a President and an affirmation in the potential consequences and rulings the rules, but in a very de facto mat- face of the determined effort to ensure that could result from Gorsuch’s con- ter, the nuclear option went off the day he did not get a second term. firmation, including overturning Roe v. the majority leader came to the floor So that lameduck argument is lame. Wade and leaving the flow of special in- and said that we are going to conduct The argument that the President was a terest money in politics unchecked, ourselves in a totally different way lameduck so, therefore, his Supreme large majorities of voters say they are than the Senate’s ever conducted itself. Court nominee should not get a hear- more likely to oppose the nominee. Unlike every other time in U.S. his- ing is disingenuous and irresponsible. Key findings from the poll conducted tory, when there was a vacancy during Mr. Obama had a year left in his term, January 27 through 31 on behalf of election year and the Senate acted, we and Presidents have their full constitu- NARAL Pro Choice America Founda- are not going to act. We are going to tional authority until noon on inau- tion, Every Voice, and End Citizens essentially engage in stonewalling the guration day. They must perform all of United, include: President’s nominee—no hearing, no their duties until then. Voters overwhelmingly believe that discussion. That was a nuclear option. Granted, a President must nominate Trump’s nomination will have a real impact So, certainly, I think that is a point justices the Senate can reasonably be on the country’s future. Fully 72 percent of well made by this article. asked to confirm. You can’t ask a Sen- voters think the nomination will have a big difference in the direction of the country. The history of the confirmation process is ate dominated by the other party to Voters across the political spectrum agree central to the history of the court. There confirm someone whose judicial philos- on the importance of this nomination, with have been some important landmarks in the ophy could appeal only to someone who 76 percent of Democrats saying it will make last century. Louis Brandeis was the first shares the President’s politics. He a big difference, along with 75 percent of Re- justice to have a confirmation hearing. Felix must, when facing such a Senate, publicans and 64 percent of Independents. Frankfurter was the first justice who had to testify at his confirmation. choose someone in the middle. Mr. So, in short, basically roughly three More recently, the confirmation process Obama did that. He did his job. He out of four Americans recognize that it for Robert Bork in 1987 had epochal con- picked the very judge Senator HATCH is a very big deal because out of this sequences. For the first time, judicial philos- said would be a moderate choice. discussion could come a confirmed ophy was a focus. The Senate did not do its job. Its re- nominee, a ninth vote on the Supreme That was 1987. fusal to confirm Judge Garland was not Court, and that 5-to-4 votes of the Su- No one disputed Bork’s intelligence or based on any flaw in the nominee’s preme Court steer the country in very qualifications. Instead liberals, including character, any deficit in his abilities, different directions, depending on how law professors like my colleague Laurence or even any disagreement with his ju- that 5-to-4 voting occurs. Tribe, criticized Bork’s conservatism, as op- risprudence. It was pure partisan poli- If you are adding to the Supreme position to fundamental rights. tics. Senate Republicans wanted to let Court spectrum of conservatives who Well, there is a whole host of com- a Republican President fill the va- have this view of Merrick Garland and mentary from all across America. Let’s cancy, and they are going to get their antipathy toward the ability of citizens turn to the Pittsburgh Post-Gazette. way. But this refusal of the Senate to to pursue justice through class action ‘‘The Senate’s shame: Merrick Garland do its duty cost a good man a fair hear- lawsuits, and an effort to always kind deserved a hearing for Supreme Court.’’ ing, and, more importantly, it cost the of torture the law in order to find for Judge Merrick Garland is returning to his Nation a potentially fine justice, one corporations over the individuals, and work on the Court of Appeals for the D.C. more faithful to the law than one of Circuit, his nomination for the Supreme a love of arbitration agreements, and Court killed without a vote by a Republican the political parties or particular judi- even inventing them as we heard last Senate majority more concerned with par- cial ideology. night—inventing an arbitration agree- tisan politics than with doing its job. As a result of this abdication of re- ment where none exists—in order to The behavior of those who disposed of his sponsibility, it will be harder to get prevent an issue from going forward in nomination stands in sharp contrast to his Justices like that in the future. Indeed, the courts—all of that is a real handi- own record and reputation as a nonideolog- the Senate has established a terrible cap for Americans in the future. So ical judge. precedent that makes it less likely Judge Garland is a moderate jurist with a Americans understand this is a big reputation for careful reasoning. Mere days that any President will be get a Senate deal. before President Barack Obama announced controlled by the other party to con- Americans strongly object to any GOP at- Merrick Garland’s nomination, Senator firm his or her Supreme Court nomi- tempts to use political tactics to strong-arm Orrin Hatch, a Republican from Utah, told a nees, however wise and well-qualified. Trump’s nominee through the confirmation conservative news site that if the President This was a study of Washington poli- process. After hearing balanced messaging, wanted to pick a moderate, he ‘‘could easily tics at its worst—political and con- seven in 10 (69 percent) oppose Republicans name Merrick Garland, who is a fine man.’’ stitutional malpractice—and it will changing the rules to prevent a filibuster But Senate Majority Leader Mitch McCon- and allow the Senate to confirm a nominee nell had already announced, in February, have a lasting consequence. with just a simple majority instead of the re- that his caucus would block any Obama Well, there is still time to change quired 60 votes, with 54 percent strongly op- nominee. ‘‘This vacancy,’’ he said, ‘‘should course and not have this legacy, as posing this proposal. In fact, even 4-out-of-10 not be filled by this lame-duck President.’’ characterized by the Pittsburgh Post- Trump voters (39 percent) oppose Repub- So the Senate refused even to hold hearings. Gazette, of ‘‘political and constitu- licans trying to change the filibuster rules.

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.169 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2296 CONGRESSIONAL RECORD — SENATE April 5, 2017 Highlighting potential actions and rulings to his influences rather than his issuances. election year. I am going to go through that could result from confirming Trump’s Among them is Justice Anthony Kennedy, them so that it becomes absolutely Supreme Court nominee makes voters much for whom he clerked. While Judge Gorsuch clear what we are talking about here. more likely to oppose him. Large majorities and Justice Kennedy may share a bond, they There were three seats where the va- of voters say they are more likely to oppose part ways on several issues. One lesser cancy occurred after the general elec- Trump’s nominee when they hear a diverse known but critically important point of po- set of issues that could be impacted by a tential disagreement surrounds a somewhat tion. So the general election was in nominee like Gorsuch. Actions that create nebulous legal principle critical to lesbian, early November. One seat opens in De- strong opposition include: gay, bisexual, and transgender, or LGBT, cember in an election year, one in No- Upholding the Citizens United decision to rights: the dignity of free persons. vember, another in December—three allow corporations, unions, and wealthy do- For decades, the Supreme Court has re- seats that opened up after the election nors to spend more money on elections. peatedly affirmed that individuals’ due proc- and for which the nomination was put Overturning the Roe v. Wade decision that ess right to liberty also protects their dig- forward. made abortion legal. nity—and shields them from indignity. The There wasn’t a lot of time. In these Eliminating or weakening environmental concept of dignity encompasses an individ- regulations that protect air, water, and land cases, the President was still ual’s innate value as people and their right transitioning in March, rather than in from pollution. to live free of interference; their right to Refusing to uphold or eliminating rights make important personal decisions; and January, so there was a little more and protections for LGBT individuals. their entitlement to social recognition or time than you might anticipate. We Failing to protect voting rights and mak- protection from discrimination. This notion shortened that with a later constitu- ing it more difficult for Americans, particu- of human dignity is at the heart of the tional amendment. larly the poor and people of color, to vote. Court’s three landmark LGBT rights cases: Here, the President put forward a Weakening the ability of labor unions to Lawrence v. Texas, United States v. Windsor, nominee within 3 days. Grant put for- organize workers to negotiate for better and Obergefell v. Hodges. wages and working conditions. ward a nomination within about a Judge Gorsuch’s writing—both on the week and just a single day for Hayes to Voters strongly support legal abortion and bench and in his book against ‘‘assisted sui- oppose a Trump nominee they believe could put forward a nomination. cide,’’ based on his Oxford dissertation—sug- So here you are after the election. put that right at risk. Seven out of 10 voters gests he is, at a minimum, skeptical of the (69 percent) support a woman’s right to principle from which the right to dignity de- The passions of the campaign are start- choose, and they recognize that Trump’s Su- rives: substantive due process. To be clear, ing to settle down. You know who the preme Court nominee jeopardizes the Roe v. substantive due process, which protects indi- next President is going to be. There is Wade decision that made abortion legal. viduals from having their fundamental not a lot of time, but there is enough More than half of voters (52 percent) think it rights violated without justification, has time for the Senate to act, and it did in is very or somewhat likely that Roe v. Wade been part of Supreme Court jurisprudence for all three cases. will be overturned if Trump’s nominee is more than 100 years. In all three of these cases where the confirmed. This possibility raises strong op- In one case, Judge Gorsuch made a point of position for voters, with 61 percent who say seat became empty after the election, incorporating criticisms of substantive due even then, the Senate found there was they are more likely to oppose a nominee process. He noted that ‘‘some’’ believe if who wants to overturn Roe v. Wade. such a concept existed, it would reside else- time enough to act. In all three of Voters have strong negative reactions to a where in the Constitution. ‘‘Others,’’ he of- these cases, that action was a con- Supreme Court nominee who will continue to fered, question whether substantive due firmation of the nominee—three out of allow corporations and special interests to process ‘‘should find a home anywhere in the three. So that is one set. use money to gain influence and drown out Constitution.’’ This critical aside, while John Jay was nominated by Presi- the voice of individuals in politics. Opposi- mild, is unusual. Judge Gorsuch hews to dent Adams. Ward Hunt was nominated tion to a nominee who wants no spending precedent on substantive due process only by President Grant. Williams Woods limits for corporations and wealthy individ- grudgingly, after conceding that ‘‘the Su- was nominated by President Hayes, but uals in elections is broad and deep. Overall, preme Court clearly tells us’’ that sub- 78 percent are more likely to oppose a nomi- in one of those interesting little twists, stantive due process does have a home in the in this case, the nominee actually de- nee (56 percent much more likely to oppose), Constitution. including 92 percent of Democrats, 84 percent In his book, Judge Gorsuch went so far as clined it after he had been confirmed. I of Independents, and 59 percent of Repub- to criticize the Supreme Court for adhering don’t know that we have seen that very licans. Three quarters of voters express a de- to substantive due process precedent in often in the history of Supreme Court sire for their Senators to oppose a Supreme ‘‘case after case.’’ He also proposed an alter- Justices. Court nominee who was ruled in favor of al- native relevance for dignity, based in equal Then there is that set of cases in an lowing campaign contributors to spend more protection, that could restrict rather than election year where the vacancy oc- money in politics. protect individual rights. The recognition of Voters recognize this Supreme Court nomi- curred before the election but the innate human dignity is the foundation for President, for a variety of reasons, nation is crucial to the direction of the coun- equality, Judge Gorsuch claimed, and equal- try and they strongly oppose any efforts by didn’t nominate until after the elec- ity makes ‘‘assisted suicide’’—termed ‘‘death tion. So you are kind of back in the Republicans to skirt the rules to push with dignity’’ in those states that permit through Trump’s ultraconservative nominee. it—unacceptable because all people created same situation—a short amount of So the date of that Greenberg Quin- equal enjoy an inalienable right to life. This time. We have four cases that are in lan Rosner Research poll was February view is troubling, not only in signaling an that category. 1. I think it really highlights that vot- intent to misappropriate the concept of dig- We had the first case in 1828—a va- ers understand that what we are doing nity to restrict individual choice, but also cancy before the election, a nomina- now—this process of considering the because of the implications for reproductive tion afterward. The Senate acts. The potential confirmation of a nominee— access, rights, and justice. Senate didn’t always confirm the nomi- has huge consequences for this country This article continues: nation, but they always acted. In this and has a huge impact on a whole vari- Senators must press Judge Gorsuch to case, they rejected the nomination by ety of issues—environmental issues, commit to upholding Supreme Court prece- tabling it. labor issues, discrimination issues, dent based on the recognition of dignity—or Then we had President Buchanan, admit he would not respect this long-estab- who nominated Jeremiah Black. In consumer issues, commerce issues, a lished, critical principle. whole host of a range of things that the May, the seat became vacant, and the Supreme Court regularly considers. So This goes on in a somewhat scholarly nomination didn’t occur until Feb- there is a lot of concern at this point. fashion. ruary. The President would have trans- Here is another issue, and that is the (Mr. BOOZMAN assumed the Chair.) ferred in March. The Senate again potential impact on LGBT rights. This I want to return to the core premise acted. The Senators of this body acted, is an article by Rebecca Buckwalter- and review the fact that never before and they rejected it. They rejected it Poza entitled: ‘‘Judge Gorsuch Threat- have we had a stolen seat in the United by rejecting the motion to proceed. ens the Dignity of LGBT People.’’ States of America. Salmon Chase, under Lincoln—the It is so important to drive this point vacancy occurred just a month before Judges with Supreme Court aspirations tend to guard their views, avoiding stances home, that there is absolutely no foun- the election in October. The President and statements that could impede a nomina- dation for what happened last year in put forward the nomination a month tion or a confirmation. Judge Neil Gorsuch American history. You have those 16 after the election in December, and the has done just that, leading observers to look seats where a vacancy occurred in an Senate confirmed him.

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.170 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2297 With Eisenhower and William Bren- a terrible precedent. That is the prob- the very existence of the power of the nan, there was a vacancy a month be- lem we are looking at. Senate to block someone of unfit char- fore the election and a nomination that Why is it a terrible precedent? Be- acter would deter a President from ap- basically came 2 months after the elec- cause once the Senate starts stealing a pointing someone of unfit character. tion—getting very close to the transi- seat from one President and handing it What did they mean by unfit char- tion date, yet he was confirmed. to another in an effort to pack the acter? Well, it could mean a host of So those are seven of the nomina- Court, there is no end to the mischief things—that a President might be ap- tions, of which five were confirmed and that follows. pointing somebody who had some con- two were rejected—tabled and the mo- If you can steal a seat in which there flict of interest or who was unaccept- tion to proceed was rejected. Then we was plenty of time to consider in the able, or maybe the President was ap- have the remaining nine. These nine final year of a Presidency, you can do pointing someone who had absolutely are closer—well, one of them is the it for 2 years. We saw this in terms of no knowledge of the issues or maybe seat that became open when Antonin many comments that were made by Re- appointing somebody who had an alco- Scalia died, but the historic additional publican legislators before the Novem- hol problem and wasn’t capable of re- eight seats—those seats are a little ber election. When they thought the sponsibly executing the task, the re- closer to the situation we have with Democratic nominee was going to win, sponsibilities of the office. There were Antonin Scalia dying and the President they were saying: We are going to a host of possibilities, but they nominating Merrick Garland, because make sure that for 4 years, it stays an thought it would be rarely used; that it the vacancy came before the election eight-member Court, that no matter wouldn’t be applied as a tool to con- in these eight cases, and the nomina- that the people will have spoken duct warfare on the executive branch; tion came before the election. through an election, no matter that a that it wouldn’t be used as a tool to be In fact, here we have the first case, nominee has been put forward who is conducted as warfare on the judiciary; under President Jefferson. He nomi- credible, we are simply not going to and it wouldn’t be used as a tool to nated William Johnson. But the va- consider it for 4 years. pack the Court and delegitimize the cancy occurred in January. The nomi- This is a court-packing scheme Court. Yet we have been seeing all of nation occurred in March. It was pret- through the theft of this Supreme that from the past in recent years. So ty close to the situation we faced last Court seat. You can just think about if that really is something that we should year, yet the Senate acted, and they the Court is packed, then when the par- be deeply concerned about. confirmed the nominee. ties are reversed—and it always does go (Mr. FLAKE assumed the Chair.) President Tyler nominated Edward back and forth sooner or later—then We saw, back in 2013, the growing use King. The vacancy occurred in April, does the other party say: We have to of the supermajority as a weapon of the nomination in June, and the Sen- balance back out the Court, restore its mass legislative destruction or govern- ate acted. They rejected the nomina- integrity by stealing a seat back, steal- ment destruction in trying to prevent tion by tabling it. ing it 2 years into a Presidency. the President from having a team with Edward Bradford was nominated by It is terrible not only in terms of its which he could act. The National Labor President Fillmore in July of 1852. The impact on the Senate here because it Relations Board was blocked from hav- following month, the nomination was now makes this incredibly partisan ing its positions filled, and the Labor put forward before the election, and pitched battle out of what was sup- Secretary was unable to get a floor again the Senate acted, but they tabled posed to be an advice and consent re- vote, and the list just went on and on it. sponsibility to deter a President from and on—tons of district court judges So they didn’t confirm in every case, nominating people of unfit character— and circuit court judges, to the point but they acted in every single case. I use the phrase ‘‘of unfit character.’’ that we had to find a way to curb that Melville Fuller was nominated by That is a phrase Hamilton used. In the destructive strategy, and that meant President Cleveland. There was a va- Federalist Papers, he lays out what that we had to go to a simple majority. cancy in March. The nomination was in this advice and consent responsibility But we left in place the supermajority May. He was confirmed. was supposed to be all about. They for the Supreme Court because it has Under President Harrison, there was needed to have a strategy for how they powers no other institution has. It is George Shiras. The vacancy occurred put key appointments into the execu- the decider. in January. Quite a few months passed. tive branch to basically staff the Cabi- One can have a district court make a It was almost 6 months before the nom- net agencies. decision that gets bumped to a circuit ination was put forward in July by the They thought at first: Maybe the court, and a circuit court makes a deci- President. The nomination was con- check will be that we will have the ap- sion, and it goes to the Supreme Court. firmed. pointments made by the Senate. They are ultimately the decider and Justice Brandeis was put forward by So the executive branch will be head- they hold the positions for as long as President Wilson. In this case, two va- ed by the President, but the appoint- they want. So they can hold it for dec- cancies occurred in an election year, ments will be made by, as they referred ades. It is not an appointment to the both before the election—one in Janu- to it, the assembly. executive branch that might be there ary, one in June. The candidate was Then they said: Well, there is a big for 2 to 4 years. That is why it is so in- put forward quite quickly—within the problem with that because one Senator credibly important that we get this month of January and a month later in will get their best friend in one post in right and why people who are observing the case of John Clarke—and both were exchange for some other Senator’s best what is going on are so concerned confirmed. friend in some other post. The public about the damage that is being done. There was Benjamin Cardozo under won’t know why it happened. There This article is from the New York President Hoover in 1932. The vacancy will be no accountability. So that is Times: ‘‘Neil Gorsuch, the Nominee for was in January. The nomination was in not a great idea. a Stolen Seat.’’ So they said: A better idea is to have February. He was confirmed. It’s been almost a year since Senate Re- So those are 8 additional, and we accountability and have the President publicans took an empty Supreme Court seat have now a total of 14. make the appointments. But there is a hostage, discarding the constitutional duty Then we have Merrick Garland. problem. What if the President goes that both parties have honored throughout Obama put forward Merrick Garland. off-track and starts appointing people American history and hobbling an entire The vacancy was in February. The of unfit character? Well, we need a way branch of government for partisan gain. nomination was in March. No action. It to put a check on that. President Trump had a great opportunity is the only time there was no action in So they came up with this idea of the to repair some of that damage by nomi- U.S. history. Senate’s advice and consent, meaning nating a moderate candidate for the va- cancy, which was created when Justice That is why we have all of these edi- that the Senate could block a nominee Antonin Scalia died in February. Instead, he torials from across the country noting if the person was of unfit character. chose Neil Gorsuch, a very conservative that this is a stolen seat, that it has They anticipated this power to be used judge from the federal Court of Appeals for never happened before, and that it sets rarely because of the very nature and the 10th Circuit whose jurisprudence and

VerDate Sep 11 2014 00:17 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.173 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2298 CONGRESSIONAL RECORD — SENATE April 5, 2017 writing style are often compared to those of these battles that are going to come hunting dogs into the Chamber, and the Justice Scalia. over future nominees. The pure par- dashing Texas Senator Sam Houston sat over If Judge Gorsuch is confirmed, the court tisanship, short-term gains, grudges to here to my right; he sat at his desk whittling will once again have a majority of justices wooden hearts for ladies in the gallery. Seat- appointed by Republican presidents, as it has be remedied rather than the advice and ed at his desk in the back row, Massachu- for nearly half a century. For starters, that consent vision that was in our Con- setts Senator Charles Sumner was beaten spells big trouble for public-sector unions, stitution—the vision that Hamilton violently over the head with a cane wielded environmental regulations and women’s ac- laid out which might have to be used by Representative Preston Brooks of South cess to contraception. If Trump gets the rarely because it would deter Presi- Carolina, who objected to Sumner’s strongly chance to name another justice, the con- dents from making nominations of peo- abolitionist speeches and the vituperation sequences could be much more dire. In nor- ple of unfit character. that Sumner had heaped upon Brooks’ uncle, mal times, Judge Gorsuch—a widely re- Senator Butler of South Carolina. I am disturbed about where we are The Senate first met here in 1810, but, be- spected and, at 49, relatively young judge headed. There are many policy issues with a reliably conservative voting record— cause our British cousins chose to set fire to would be an obvious choice for a Republican that seem important at the time as the Capitol during the War of 1812, Congress President. they come to this floor, and they are was forced to move into the Patent Office These are not normal times. important. They are issues related to Building in downtown Washington, and later The seat Judge Gorsuch hopes to sit in the ability of workers to get fair wages into a building known as the Brick Capitol, should have been filled, months ago, by for the value they bring to the develop- located on the present site of the Supreme Merrick Garland, the chief judge of the ment of the products they make. There Court Building. Hence, it was December 1819 Court of Appeals for the District of Columbia before Senators were able to return to this Circuit, whom President Barack Obama are certainly key issues about our restored and elegant Chamber. They met nominated to the high court last month. transportation infrastructure and key here for 40 years, and it was during that ex- Judge Garland, a former federal prosecutor challenges on healthcare. But a single hilarating period that the Senate experi- and 20-year veteran of the nation’s most im- Supreme Court seat can change policy enced its ‘‘Golden Age.’’ portant federal appeals court, is both more on a huge spectrum of issues with the Here, in this room, the Senate tried to deal moderate and more qualified than Judge Supreme Court as the final arbiter. with the emotional and destructive issue of Gorsuch. If we have a pivot point in which slavery by passing the Missouri Compromise of 1820. That act drew a line across the That meant nothing to Senate Repub- dark money—unlimited amounts of licans, who abused their power as the major- United States and asserted that the peculiar ity party and, within hours of Justice funds—are injected into the national institution of slavery should remain to the Scalia’s death, shut down the confirmation campaigns forever more, well, we are south of the line and not spread to the north. process for the remainder of Mr. Obama’s never going to heal and get back to the The Missouri Compromise also set the prece- presidency. There would be no negotiations point of the Senate being a great delib- dent that for every slave state admitted to to release this hostage; the sole object was erative body, because that dark money the Union, a free state should be admitted as to hold on to the court’s conservative major- will own this body and control this well, and vice versa. What this meant in ity. The outrageousness of the ploy was body, much as it does now after the practical political terms was that the North and the South would be exactly equal in vot- matched only by the unlikelihood that it entry of the Koch brothers into the na- would succeed—until, to virtually everyone’s ing strength in this Chamber, and that any shock, it did. tional campaign contests. settlement of the explosive issue of slavery The destructive lesson Senate Republicans That is the impact of a single Su- would have to originate here in the Senate. taught is that obstruction pays off. Yet they preme Court decision. It has huge im- As a result, the Nation’s most talented and seem to have short memories. After Senate pact on who serves here and what deci- ambitious legislators began to leave the Democrats refused to attend votes on two of sions they make. It has huge impact on House of Representatives to take seats here Mr. Trump’s cabinet picks on Tuesday, Sen- whether we are a ‘‘we the people’’ gov- in the Senate Chamber. Here, they fought to ator PAT TOOMEY of Pennsylvania said, ‘‘We ernment or a government by and for hold the Union together through the omni- bus compromise of 1850, only to overturn did not inflict this kind of obstructionism on the most powerful. President Obama.’’ Even absent such dishon- these efforts by passing the fateful Kansas- esty, any Democratic impulse to mimic the It might be interesting at this point Nebraska Act of 1854. Republican blockade by filibustering Judge to go back in time to sections of a The Senators moved out of this room in Gorsuch would be understandable. But Sen- speech by Senator Robert Byrd. Sen- 1859, on the eve of the Civil War. When they ate Democrats should be wary of stooping to ator Byrd was still in the Senate when marched in procession from this Chamber to the Republicans’ level, especially because I came here in 2008. He was one of four the current Chamber, they marked the last any such effort is likely to prove futile, since Senators that were in the Senate when time that leaders of the North and South Republicans have the votes to simply elimi- I was an intern in 1976. would march together. The next year, the South seceded, and Senators who had walked nate the use of the filibuster. . . . He says in his speech, delivered De- You know, I think about the fact shoulder to shoulder here parted to become cember 15, 1998, in the Old Senate military officers and political leaders of the that it has been bandied about with Chamber: Union and of the Confederacy. such lack of gravity that the Senate Clio being my favorite muse, let me begin This old Chamber that they left behind is majority may change the 60-vote re- this evening with a look backward over the not just a smaller version of the current quirement for the Supreme Court. It is well-traveled road of history. History always Chamber. Here, the center aisle divides the an immediate tactical victory to do so, turns our faces backward, and this is as it two parties, but there are an equal number but it may turn out to be a tactical should be, so that we might be better in- of desks on either side—you will count 32 on mistake in the bit longer term. Presi- formed and prepared to exercise wisdom in one side and 32 on the other, not because the two parties were evenly divided, but because dent Trump may have a single oppor- dealing with future events. ‘‘To be ignorant of what happened before there was not room to move desks back and tunity to put in place a Supreme Court you were born,’’ said Cicero, ‘‘is to remain forth, depending on the size of the majority, Justice, and the next President, who always a child.’’ as we do today. That meant that some mem- might be a Democrat, might have So, for a little while, as we meet to- bers of the majority party had to sit with many chances to nominate a Supreme members of the minority. It did not matter gether in this hallowed place, let us to them. The two desks in the front row in Court Justice. So lowering the stand- turn our faces backward. ard from the 60 votes designed to have the center aisle were not reserved for the Look about you. We meet tonight in the a judge down the middle could lead to majority and minority leaders as they are Senate Chamber. Not the Chamber in which now, because there were no party leaders at very different consequences depending we transact our business daily now, but the that time. No Senator spoke for his party; on when various judges retire, who Old Senate Chamber where our predecessors every Senator spoke for himself. There were they are, and where they are in the wrote the laws before the Civil War. Here, in recognized leaders among the Senators, but spectrum—something that none of us this room, Daniel Webster—he moved about only unofficially. Everyone knew, for exam- can predict. So it is certainly a strat- the Chamber from time to time—Daniel ple, that Henry Clay led the Whigs, but he egy that has simply just been asserted Webster orated, Henry Clay forged com- would never claim that honor. Clay gen- as this: Well, we will just do it. promises, John C. Calhoun stood on prin- erally sat in the last row at the far end of Not only does it have high tactical ciple. Here, Henry Foote of Mississippi the Chamber so he could talk to Senators as pulled a pistol on Thomas Hart Benton of they came in to vote. risk, but it just is another blow of the Missouri. Senator Benton ripped open his The Senate left this Chamber because it ax, felling the trees in the forest of the coat, and said, ‘‘Let the assassin fire!’’ And, outgrew the space. When they first met here integrity of the Court and the integrity ‘‘Stand out of the way.’’ Here the eccentric in 1810, there were 32 Senators. So many of the Senate. It sets the stage for all Virginia Senator John Randolph brought his states were added over the next four decades

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.174 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2299 that when they left in 1859, there were 64 tended. We as legislators have a responsi- the national interest. There are very worthy Senators. Yet, while the Senate increased in bility to work with the chief executive, but examples in Senate history. size, it was essentially the same institution it is intended to be a two-way street. The When I came to the Senate in 1959, artists that the Founders had created in the Con- Framers did not envision the office of Presi- were at work painting five porthole portraits stitution. Today, another century and four dent as having the attributes of royalty. We in the Senate reception room. The Senate decades later, and having grown to 100 Sen- must recognize the heavy burden that any had appointed a special Committee chaired ators, it is still essentially the same institu- President bears, and wherever and whenever by Senator John F. Kennedy to select the tion. The actors have changed; the issues we can, we must cooperate with the chief ex- five most significant Senators in Senate his- have changed; but the Senate, which ecutive in the interest of all of the people. tory. This was no easy task, because there emerged from the Great Compromise of July But let us keep in mind Madison’s admoni- were many potential candidates. 16, 1787, remains the great forum of the tion: ‘‘Ambition must be made to counteract In setting the criteria, the Committee states. This is so, largely, because as a Na- ambition.’’ looked to Senators who had stood firm for tion, we were fortunate to have wise, cau- As Majority Leader in the Senate during principle, who had not blown with the winds, tious people draft and implement our Con- the Carter years, I worked hard to help and who made personal sacrifices for the na- stitution. They were pragmatists rather President Carter enact his programs, but I tional good. They were not saints, nor were than idealists. James Madison particularly publicly stated that I was not ‘‘the Presi- they perfect men. Daniel Webster’s personal financial deal- had a shrewd view of human nature. He did dent’s man’’; I was a Senate man. For exam- ings left an eternal blot upon his record; yet, not believe in man’s perfectibility. He as- ple, in July 1977, I opposed President Carter’s he deserved to have his portrait in the Sen- sumed that those who achieved power would plan to sell the AWACS (Airborne Warning ate reception room, not simply as a great or- always try to amass more power, and that and Control System) to Iran. Iran was then a ator, but as a man who sacrificed his own po- political factions would always compete out military ally of the United States, but I was litical standing by endorsing the com- of self-interest. In ‘‘The Federalist Papers,’’ troubled over the potential security risks in- promise of 1850, which was deeply unpopular Madison reasoned that ‘‘in framing a govern- volved with the possibility of compromising in his home State of Massachusetts, but ment which is to be administered by men highly sophisticated technology in this vola- which he realized was the best chance to tile region. I was concerned that the sale ran over men, the great difficulty lies in this: hold the Union together. You must first enable the government to contrary to our national interests in main- In my almost 46 years in Congress, I have control the government; and, in the next taining a stable military balance and limited seen other courageous Senators. place, oblige it to control itself.’’ Madison arms proliferation in the Middle East. Both I have already referred to the courage dem- and other Framers of the Constitution di- Houses of Congress had to vote disapproval onstrated by former Senator Howard Baker vided power so that no one person, no single resolutions to stop the sale. I enlisted the during the Panama Canal debates. Without branch of government could gain complete support of then Republican Minority Leader Senator Baker’s support, the Panama Canal power. As Madison explained it: ‘‘Ambition Howard Baker. Senator Baker was someone Treaties would never have been approved by must be made to counteract ambition.’’ who could rise above political party when he the Senate. We needed two-thirds; we were However, ambition has not always counter- believed that the national interests required swimming uphill. The odds were against us. acted ambition, as we saw in the enactment it, just as he did in the Panama Canal de- The killing of American servicemen in Pan- by Congress of the line-item veto in 1996. bates. The Carter administration chose to ama would have gone on, but Senator How- Just as the Roman Senate ceded its power withdraw the sale of AWACS temporarily. ard Baker threw his shoulder behind the over the purse to the Roman dictators, Sulla Shortly afterwards, the Iranian revolution wheel and helped to construct what he and I and Caesar, and to the later emperors, thus occurred and the Shah was replaced. Had referred to as leadership amendments, surrendering its power to check tyranny, so that sale gone through as planned, those so- amendments which protected U.S. interests did the American Congress, the Senate in- phisticated aircraft would have fallen into in that region, and we both worked shoulder cluded. By passing the Line-Item Veto Act the hands of an unfriendly government. As to shoulder against great odds, as indicated the Congress surrendered its control over the so often has happened in our history, indi- by the polls. purse—control which had been vested by the vidual courage and character again char- We did so because we believed, after care- Founding Fathers here in this legislative tered our course. ful study, that the treaties were in the best branch. I want to return to Senator Byrd’s interests of the United States. There were This brings me to the first point I would point about Republican Minority Lead- people in my own State of West Virginia who like to leave you with this evening. It is this: er Howard Baker. It says: ‘‘Senator still don’t believe that. But I was convinced The legislative branch must be eternally of it. vigilant over the powers and authorities Baker was someone who could rise Howard Baker knew what my old majority vested in it by the Constitution—eternally above political party when he believed leader, Mike Mansfield, and all students of vigilant. This is vitally important to the se- the national interests required it, just the Senate’s institutional role know. curity of our constitutional system of checks as he did during the Panama Canal de- Political polarization—too much emphasis and balances and separation of power. bates.’’ The debate over those treaties on which side of the aisle one sits, is not George Washington in his Farewell Address was intense because they were a valu- now, and has never been, a good thing for the Senate. I am talking about politics when it of September 17, 1796, emphasized the impor- able asset controlled by the United tance of such vigilance: It is important like- becomes gamesmanship or when it becomes wise that the habits of thinking in a free States. Many thought of them as a pos- mean-spirited or when it becomes overly ma- country should inspire caution in those session of the United States, and we nipulative, simply to gain advantage. intrusted with its administration to confine were turning them over to Panama I am not talking about honestly held views themselves within their respective constitu- after a long period of negotiations. But or differing political positions. Those things tional spheres, avoiding in the exercise of to be able to rise above partisanship to enrich our system. Americans have always the powers of one department, to encroach pursue a national interest—that is loved a good debate. And that is what I be- upon one another. The spirit of encroach- what we need now as we face the poten- lieve and wish for now: More substantive and stimulating debate and less pure politics and ment tends to consolidate the powers of all tial of this devastating change in Sen- the departments in one, and thus to create, imagery. whatever the form of government, a real des- ate conduct over the selection of a Su- But I well understand history and its ebb potism. . . . The necessity of reciprocal preme Court nominee. and flow, and I well know that we live in an checks in the exercise of political power, by I hope we can find a way to rise age of imagery. It is simply my wish that, dividing and distributing it into different de- above partisanship or political party sometime soon, the rising tide of imagery positories, and constituting each the guard- and pursue the national interests be- and partisanship will begin to ebb rather ian of the public weal against invasions of cause I have seen so little of the desire than to flow quite so freely. the others, has been evinced by experiments Washington, in his farewell address, to strengthen our institutions. I am warned us against the ‘‘baneful effects of the ancient and modern. . . . To preserve them not optimistic, but I do think it is must be as necessary as to institute them. spirit of party’’ when he said: Each Member of this body must be ever worth noting that it is possible. We ‘‘. . . in governments purely elective, it is mindful of the fundamental duty to uphold could take this train off the tracks— a spirit not to be encouraged. From their the institutional prerogatives of the Senate because of the shadow hanging over the natural tendency, it is certain there will al- if we are to preserve the vital balance which Presidency, because of the far-right ways be enough of that spirit for every salu- Washington so eloquently endorsed. views of Neil Gorsuch, because it is a tary purpose. And there being constant dan- ger of excess, the effort ought to be, by force Senator Byrd continues: stolen seat and we haven’t remedied of public opinion, to mitigate and assuage it. During my 46 years in Congress, and par- that situation with a plan. A fire not to be quenched, it demands a uni- ticularly in more recent years, I have seen Senator Robert Byrd continued: form vigilance to prevent its bursting into a an inclination—I think I have—on the part This brings me to my second point. On the flame, lest instead of warming, it should con- of many legislators of both parties to regard great issues, the Senate has always been sume.’’ a chief executive in a role more elevated blessed with Senators who were able to rise So, I believe that the American people are than the Framers of the Constitution in- above party, and consider first and foremost more than tired of partisan warfare. I believe

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We can rise above the system ought to serve as a harbinger to be be and to do their best. situation in which we have put our- ignored at our peril. On that score, we politicians, as a group, selves, the situation in which one It must be a matter of concern to all of us generally miss the mark. team, for the first time in U.S. history, that all too few Americans look to office- Perhaps it’s because power, whether it be has stolen a Supreme Court seat to holders for inspiration in these troubled and the power of political office, or the power to pack the Court. turbulent times. run giant corporations, or the power to re- To now be in this position of consid- port and analyze events, is a very heady How can we attract the talent needed to ering a Senate nomination at the exact serve in public office in future years if elect- thing. It can lead to arrogance, self aggran- ed officials continue to be held in such low dizement, disregard for playing by the rules, moment that the person making the esteem? and contempt for the people who send us nomination and his team are under in- here. It can lead us to forget that we are vestigation for potentially traitorous Continuing to read Senator Byrd’s servants, not masters. conduct against the United States—but speech in the Old Senate Chamber: Senator Byrd continued: we don’t have the answers yet. I would very much like to see a rekindling In the real world, exemplary personal con- (Mr. PAUL assumed the Chair.) of basic faith in our leaders, and a renewal in Here we are with a nominated judge politics and of public service. But the exist- duct can sometimes achieve much more than ence of inspiring leadership by public offi- any political agenda. Comity, courtesy, char- who is way outside the mainstream, cials is fundamental to a shoring up of that itable treatment of even our political oppo- and we therefore have a challenge. It is faith. sites, combined with a concerted effort to exactly what the filibuster was de- In fact, I think the American people are in not just occupy our offices, but to bring signed for—to keep judges who are out- desperate need of some old-fashioned heroes. honor to them, will do more to inspire our side the judicial mainstream from people and restore their faith in us, their Now, it seems, today’s heroes, if we want to being nominated. So that is a lot for us loosely use the term, are merely celeb- leaders, than millions of dollars of 30-second spots or glitzy puff-pieces concocted by spin- to wrestle with in the next few days. rities—rock stars who spout deplorable mes- The New Yorker did an analysis of sages, or sports figures who mass fortunes meisters. advertising baggy clothes at exorbitant These are troubling times for our nation where Neil Gorsuch lies. The subtitle prices. and our people on both the national and says: ‘‘Every sign suggests that he I’m not talking about Sammy Sosa. I’m international fronts. would be at least as conservative a ju- For our country to weather the rough seas not talking about Mark McGuire. They were dicial activist as Samuel Alito.’’ This ahead, we must use our most tempered judg- my heroes, too, as was Babe Ruth in 1927. ment and seek out our best and most noble is a different source, but that is the Not much to look up to here, I say. Not instincts. same basic point, showing an analysis much to build dreams on. Our example here can be a healing ele- that places Neil Gorsuch to the right Look hard at the content of our popular ment—a balm to salve the trauma of distrust side of the right peak in terms of ide- culture. There is really nothing much to in- and disillusionment too long endured by spire and look up to. And regrettably there ology. good people. Let each of us follow his or her also is not much to counter the empty com- Ruth Bader Ginsburg, the diminutive lib- own conscience when it comes to issues, but mercialism which is so prevalent today. It eral colossus of the Supreme Court, has built as we do so, may we be ever mindful that our has become the norm. a distinguished record as a Justice, but her people watching us, and the people who sent legacy as a nominee is more dubious. In her Senator Byrd continued: us here can take us back home again. confirmation hearing before the Senate Judi- So where are we in all of this? What is our Let us be aware of the sublimely uplifting ciary Committee, in 1993, she refused to an- role? What part can we as Senators—author- which the example of simple dignity, de- swer most questions about how, if confirmed, ity figures, statesmen representing the peo- cency, decorum, and dedication to duty can she would rule. In an oft-quoted phrase, she ple—play while we simultaneously endeavor play in the life of a nation. vowed to give ‘‘no hints, no forecasts, no pre- to carry out our 200-year-old mandate, be- Senator Byrd had yet more words to views.’’ Nominees have invoked this stone- queathed to us by some of the most brilliant share. wall ever since. men of their age, or of any age before or Let us also remember that even after two Last week, Neil Gorsuch, Donald Trump’s since? hundred years, the Senate is still the anchor choice to fill the seat of the late Antonin Well, we can show up for our roll call of the Republic, the morning and evening Scalia, proved an especially ardent follower votes, carry out our committee assignments, star in the American constitutional con- of what has come to be known as the Gins- issue the obligatory press releases, dutifully stellation. burg rule. Asked repeatedly by members of follow up on constituent requests, and an- It has had its giants and its little men, its the committee about his views of such cases swer our mail. Websters and its Bilbos, its Calhouns and its as Roe v. Wade and Citizens United, Gorsuch All of these are necessary and to a greater McCarthys. It has been the stage of high not only refused to answer, but went on to or lesser degree important. drama, of comedy and tragedy, and its play- say that his feelings, if he had any, were of But a reemphasis by the Senate on our ers have been the great and the near great, no consequence: ‘‘It’s not a matter of agree- strict institutional role is certainly some- those who think they are great, and those ing or disagreeing. It’s a matter of it being thing which I would like to see. It is a sober- who probably never will be great. the law, and my job is to apply and enforce ing and heavy responsibility all by itself, and It has weathered the storms of adversity, the law.’’ Gorsuch portrayed himself as a its very weightiness tends to cool the over- withstood the barbs of cynics and the at- kind of judicial automaton, obligated to pay heated passions of political demagoguery. tacks of critics, and provided stability and mindless obeisance to the Court’s prior rul- After all, that role is, in a constitutional strength to the nation during periods of civil ings. sense, the reason we are here. The Framers strife and uncertainty, panics and depres- This interpretation of the role of Supreme expected a zealous defense of our powers to sions. Court Justices is, to put it charitably, incor- keep the tyrants at bay. But there is still an- In war and in peace, it has been the sure rect—they can and do overturn their earlier other role—an intangible something—that refuge and protector of the rights of the holdings. And Trump didn’t nominate we who are privileged to sit in this body, and state and of a political minority because Gorsuch simply because he knows how to fol- indeed leaders in the private sector, as well great and courageous Senators have always low precedent. He nominated Gorsuch be- as those who write and reflect upon the been there to stay the course and keep the cause his career resembles a lab experiment news, are called upon to play. I call it the faith. synthesizing every trend in modern conserv- duty beyond our duties. And it can do so again as long as we are ative thought. The duty I am talking about is the duty to ever blessed in this august body with those A ruggedly handsome Coloradan—this endeavor to inspire others and to dem- who hear the clear tones of the bell of duty, President cares a great deal about appear- onstrate, through personal example, that the Senate will continue to stand—the great ances—Gorsuch has an appealing manner and public service of all types ought to be an forum of the constitutional American lib- an impressive resume. He did well in good honorable calling. Contrary to what many erty! schools, held prestigious clerkships, worked believe, it is absolutely the wrong place for That is a lot of good advice. As we sit at a fine law firm, took a senior post in the the slick and the insincere. Department of Justice, and for the past dec- Serving the public in a leadership role de- here in these troubled times and pon- ade has served in the Tenth Circuit Court of mands honesty, hard work, sacrifice, and der how we are going to rise above the Appeals. From his boyhood days as a Repub- dedication from those who dare to ask the passions and politics of the moment to lican Senate page to his decades of volunteer people for such an awesome trust. Those who restore the functionality of the Senate, work for GOP candidates, Gorsuch has been

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.178 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2301 a strong party loyalist. (Like many Repub- cies are now investigating the very legit- Garland nomination, the failure to act lican pols, he refers to the ‘‘Democrat,’’ imacy of the Trump Presidency. Indeed, on the lower court nominations is ex- rather than the Democratic, Party.) Chuck Schumer, the Democratic leader in treme and inexcusable. His background also includes a dose of pro- the Senate, has called for a delay in the corporate, deregulatory libertarianism, as Gorsuch vote until there is some clarity As we noted above, it represents a partisan reflected in his close relationship with the about the Trump camp’s ties to Russia. Last attempt to prevent Obama from exercising billionaire Philip Anschutz, a client turned week, he also promised to lead a filibuster his right, as the Constitution puts it, to ap- mentor. A sampling of authoritarianism can against Gorsuch’s confirmation, but Repub- point judges by and with the advice and con- be seen in Gorsuch’s service in George W. licans, in response, vowed to change the Sen- sent of the Senate. Sabotaging the exercise Bush’s Justice Department, where he helped ate rules to allow them to confirm the nomi- of that authority is offensive, not only be- craft a proposal for the treatment of detain- nee by a simple majority. cause it undermines the Constitution but be- ees at Guantanamo. (The Supreme Court The Supreme Court is, as political sci- cause it perpetuates a partisan grudge match later ruled it unconstitutional.) There’s so- entists like to say, a counter-majoritarian over the Federal courts. cial conservatism, too, evident in his one institution: The President and members of It would be utterly understandable if book, a critique of death-with-dignity laws the Congress must answer to voters; the Jus- Senate Democrats now retaliated by and physician-assisted suicide. ‘‘All human tices, who serve for life, answer only to the making it difficult for President-Elect beings are intrinsically valuable,’’ he wrote, commands of the Constitution. But, in doing so, it’s their duty to speak for those who Donald Trump to win confirmation for ‘‘and the intentional taking of human life by his judicial nominees, especially those private persons is always wrong.’’ It’s easy lack political power. The Trump era has al- to read the book as a coded attack on abor- ready meant trouble for these people—the slotted for seats that Obama had every tion rights. poor, the sick, the dissenters, immigrants— right to fill. Democrats will be espe- To the extent that Gorsuch said anything and Gorsuch, for all his intellectual distinc- cially reluctant to support a Trump of substance at his hearing, he put himself tion, has shown scant regard for their con- nominee to the Supreme Court who across as a mainstream figure. He said he cerns. There’s little reason to believe that he likely would move the court to the participated in some 2,700 cases on the ap- would as a Justice either. right after the Republicans cheated peals court, and had voted with the majority The L.A. Times wrote the story ti- Obama out of his opportunity to shape in 99 percent of the them. This proves only tled ‘‘Another judicial dirty trick from the Court in a more liberal direction by that most cases are routine. (Even the Su- Senate Republicans.’’ preme Court issues unanimous rulings more appointing Garland. One of 2016’s most spectacular examples of than half the time.) The hard cases are the We recognize that the selection of Federal government dysfunction was the U.S. Sen- ones that matter, and it’s reasonable to judges is an inherently political process, one ate’s outrageous refusal to consider Presi- project how Gorsuch would vote in them. He of which both Presidents and Members of the dent Obama’s nomination of Judge Merrick would oppose abortion rights. (Trump prom- Senate consider not only a nominee’s tech- Garland to replace the late Antonin Scalia ised to appoint a ‘‘pro-life’’ Justice.) nical qualifications and legal philosophy but His predilection for employers over em- on the Supreme Court. That dereliction of also his or her ideology and party label. Even ployees is such that it yielded a circuit-court duty by the Republican majority not only so, both parties need to eventually find a opinion of almost Gothic cruelty. When sub- denied the sitting President his constitu- way back to a state of affairs in which a zero temperatures caused a truck driver’s tional prerogative to fill vacancies in the president, regardless of party, will receive trailer brakes to freeze, he pulled over to the court (so that the appointment would go in- prompt Senate consideration of his judicial side of the road. After waiting three hours stead to a hoped-for Republican successor.) nominees and an affirmative vote if they are for help to arrive, he began to lose feeling in It also prevented the court from resolving a well-qualified and not extreme in their phi- his extremities, so he unhitched the cab from handful of cases because of a 4–4 split and losophy (as we fear some Trump nominees the trailer and drove to safety. His employer probably discouraged the justices from ac- might be). That should be the process, re- fired him for abandoning company property. cepting other cases because of the possibility gardless of which party controls the Senate. The majority in the case called the dismissal of a similar deadlock. That is important because denying quali- Less well known is the fact that the Sen- wrong, but Gorsuch said the driver was in fied judicial nominees a vote harms the fed- ate also failed to hold 4 votes on 24 Obama the wrong. eral judiciary—by denying it needed per- As a Justice, Gorsuch would embrace a de- nominees for lifetime federal judgeships who sonnel and by telling lawyers who might as- regulation of campaign finance symbolized had been cleared by the Senate Judiciary pire to the bench that their nominations by the Citizens United decision. (He argued Committee. They are among 59 aspiring judi- could languish for months and ultimately in an opinion that judges should evaluate cial appointees whose nominations will ex- perish not because of any failing on their limits on political contributions using the pire when the 144th Congress fades into his- part but because of partisan gamesmanship. same tough standards that they apply to ra- tory this month. And it isn’t lawyers and judges who suffer. Of the 24 nominees left stranded, three had cial discrimination.) As White House Counsel W. Neil Eggleston been selected to federal appeals courts, two His most famous Tenth Circuit decision told the Washington Post: ‘‘There is a real for U.S. Court of International Trade, and 19 had him taking a side in the culture wars. In impact on real people. There are people and for federal district courts. Some of the nomi- Hobby Lobby Stores v. Sebelius, he ruled companies who are not having their cases nees have been waiting for Senate action for that a multibillion-dollar corporation could heard because there are no judges around.’’ months, including U.S. district judge Lucy withhold federally guaranteed rights to birth Trump can make a significant gesture to- Haeran Koh, who was nominated to the San control from thousands of female employees ward restoring a measure of normality to the Francisco Bay’s U.S. 9th Circuit Court of Ap- because of religious beliefs of the corpora- confirmation process. He should resubmit peals by Obama in February and rec- tion’s owners. (His position was upheld, 5–4, the names of the nominees who received bi- ommended by the committee in September. by the Supreme Court.) partisan support in the Judiciary Committee Sen. Patrick Leahy of Vermont, the rank- In an embarrassing coincidence, on the sec- but were left stranded because of the delay- ing Democrat on the Judiciary Committee, ond day of Gorsuch’s testimony, the Court ing tactics of his fellow Republicans. accused Senate Republicans of setting a unanimously rejected one of his holdings in This article is by Paul Gordon, titled the Tenth Circuit, ruling that it denied ade- record for inaction on judicial nominations. quate educational opportunities to students Whereas the Democratic-controlled Senate ‘‘Gorsuch and the Senate GOP’s Alter- with disabilities. confirmed 68 of George W. Bush’s judicial native Universe.’’ As I am reading Every sign suggests that Gorsuch would be nominees in the last two years of his presi- these articles, let’s not forget the ba- at least as conservative a judicial activist as dency, only 22 nominees had been confirmed sics. The basics are that 16 seats have Samuel Alito. in the comparable period, Democrats note. become open on the Court in the his- It’s also clear what Neil Gorsuch is not: Republicans countered by citing other sta- tistics, such as the fact that Obama has had tory of the United States of America. Merrick Garland. Gorsuch’s nomination is Each and every time, up until last inextricable from its shameful political con- more judicial nominees confirmed overall text. When Scalia died, more than 11 months than Bush did in his two terms—329 to year, the Senate acted on the nominee remained in Barack Obama’s Presidency, but Bush’s 326. put forward by the President. This is 9 Senate Republicans refused to give his nomi- It is also true that the Democratic- of the 16. These are the nine that most nee even a hearing. This departure from controlled Senate ended its business in resemble the situation we had with norms is all the more outrageous because a 2008 without having confirmed 26 Bush Merrick Garland, where the vacancy tactic was used to block a moderate; the Re- judicial nominees. Both parties have a occurred before the election and the publicans denied Obama his constitutional history of refusing to act on highly nomination occurred before the elec- right in order to trade a Justice who might qualified judicial nominees proposed by tion. have been less liberal than Stephen Breyer for one who might be as radical as Clarence a president of the other party. Yet For example, with Merrick Garland, Thomas. LEAHY’s indictment is on point. the vacancy was in February and the Such a turnabout seems especially dis- As with Senate Majority Leader nomination was in March. It is not so turbing given that the FBI and other agen- MITCH MCCONNELL’s stonewalling the different from the first name on the

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.180 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2302 CONGRESSIONAL RECORD — SENATE April 5, 2017 list, William Johnson, under Jefferson, That would get us out of this quag- We have seen transparent and bipartisan when the vacancy was in January and mire. That would protect the credi- selection processes before, and they looked the nomination was in March. bility of the Senate, and it would pro- nothing like what we have seen with the cur- In each and every one of these tect the legitimacy of the Court. rent nomination. For instance, President cases—the cases that occurred where This article, ‘‘Gorsuch and the Sen- Clinton consulted closely with Orrin Hatch, then the ranking Republican on the Judici- the vacancy was after the election and ate GOP’s Alternate Universe’’ is by ary Committee, before making his two Su- the nomination, obviously, was after Paul Gordon. preme Court nominations. And that con- the election as well—there were vacan- In their efforts to get the ultra-conserv- sultation was genuine: Based on Sen. Hatch’s cies before the election but then the ative Neil Gorsuch onto the Supreme Court, advice, Clinton passed over his original first President waited to nominate until Senate Republicans have moved beyond cre- choice, acting transparently and in a manner after the election, and those cases that ating ‘‘alternative facts.’’ They’ve created an to encourage bipartisanship. are more like Merrick Garland, where entire alternative universe. Republicans can posture as a principled, If Gorsuch has earned so little bipartisan both the vacancy and nomination oc- wounded party, forced to trigger the nuclear support that he cannot get the support of 60 option, but that simply isn’t reality. Since curred beforehand. In virtually every Senators (as all six successful nominees of the death of Justice Scalia—indeed, since case—well, actually, in every case, in the past three presidents were able to do), the moment President Obama took office— all 15 cases preceding the death of Mitch McConnell is threatening to change they have time and again escalated their Antonin Scalia, the Senate acted. the Senate rules to allow Supreme Court partisan approach to the selection of judges. Of those 15, they confirmed 11 and nominees to be confirmed by party-line ma- They held Obama circuit court nominees to they defeated 4. That brought us to last jority votes. He and his colleagues portray a 60-vote threshold, then refused to allow year. As you can see on this chart, Judge Gorsuch as mainstream, the absence votes at all on three D.C. Circuit vacancies of consultation as bipartisanship, and them- regardless of who they were, and then re- there is no action for the first time in selves as victims of unprecedented and un- U.S. history. It wasn’t just an alter- fused to even hold a hearing for a Supreme principled partisan obstruction from the Court nominee. native way of doing things. It was a Democrats. Republicans don’t want to trig- Senate Republicans did not enter this pres- strategy to pack the Court, to try to ger the ‘‘nuclear option,’’ they claim idency with clean hands. send the nomination into the future in through crocodile tears, but will have no And while much of the GOP obstruction the hopes that there would be a con- choice but to do so if those mean Democrats since 2009 had nothing to do with the nomi- servative President who would nomi- insist on a 60-vote threshold. nees themselves, Democrats’ opposition to Listening to them, you’d think they were Gorsuch is based on his record. Democrats nate a conservative member of the the injured party. You’d never know that: Court. have not said that they will oppose anyone Republicans refused to even hold a hearing who Trump nominates. In fact, as Senate Mi- I think most folks who are partici- for Merrick Garland, President Obama’s pating in this Court-packing scheme nority Leader Chuck Schumer has said nu- nominee for this very vacancy. To justify merous times, if Gorsuch cannot earn 60 this unprecedented move, they claimed that didn’t really think it would work be- votes, the solution is not to change the rules, it had been decades since any president was cause it wouldn’t have worked if Demo- but to change the nominee. crats won the Presidency or gained permitted to immediately fill a vacancy that It’s clear that Senate Republicans have control of the Senate. They were con- arose in a presidential election year. They created an alternative universe worthy of a were careful not to mention the reason for Star Trek episode. sidered at least to have a 50–50 shot at that: It’s rare for justices to die in office, each. It was a surprise to everyone that and Justice Scalia was the only justice since The Brennan Center for Justice pub- suddenly we were where we are, but 1950 to pass away during an election year. lished an article by Ciara Torres- there was no decision even at that late The refusal to even consider Judge Garland Spelliscy titled ‘‘Neil Gorsuch Under- date after the election that we could for the Supreme Court was unprecedented, a stands Campaign Finance—And That’s have had time to vet and vote on the pure power play that drew wide condemna- The Problem.’’ nominee. tion. It’s Supreme Court prediction season with Republicans insisted on a 60-vote threshold There is a whole set of these nomina- Tenth Circuit Judge Neil Gorsuch’s nomina- for three of President Obama’s D.C. Circuit tion to fill the late Antonin Scalia’s seat by tions that occurred after the election. nominees, regardless of who they were, and President Trump (Or by whomever he It would have been totally possible even announced their demand before any outsourced the job. I’m looking at you, Fed- after the November election to go nominations were made. They made it clear eralist Society and Heritage Foundation.) ahead and still at that point consider that they would block President Obama from Merrick Garland. filling any of the three vacancies on the 11- Now everyone (including me) is poring over We wouldn’t be in this deep, difficult member court. (It was this extreme, unprece- his past decisions to see what they could mean for the laws most in flux before the Su- hole right now had we done so, but we dented, unprincipled, and anti-democratic putsch that forced the Democrats to drop the preme Court. didn’t. It was a deliberate strategy to I’ve hunted for clues about what Gorsuch 60-vote requirement for lower court nomi- pack the Court, which is now on the believes about money in politics. He presides nees.) verge of succeeding if we go through Republicans defended the 60-vote margin at the Tenth Circuit, which covers Wyoming, with the vote this week and if the rules during the Obama years as a safety mecha- Colorado, Utah, New Mexico, Kansas and are changed. nism to encourage presidents to consult with Oklahoma. From a campaign finance per- If the rules aren’t changed, then we Senators of the opposing party and select ju- spective, most of the cases come from Colo- will do what has been done over the dicial nominees with bipartisan support. rado, which has tried to improve its cam- Conservatives claim that Democrats paign finance laws both through statute and decades. If your candidate doesn’t have by amending its state constitution. the votes, they get withdrawn. You should support Gorsuch because his nomina- tion was a culmination of the most trans- Various aspects of the Colorado campaign change the candidate. You don’t parent Supreme Court selection process in finance laws have landed in the Tenth Cir- change the rules. The rule of 60 votes history, since Trump listed his potential cuit, which is not known for being a particu- to close debate is designed to ensure nominations before the election. larly hospitable venue for reformers. One that there is some bipartisan support In fact, this may have been the least trans- 2014 case called Riddle v. Hickenlooper has a for the nominees being put forward. parent selection process in history, designed concurrence written by Gorsuch. So what That is an important issue in terms to lead to an extremist nominee rather than can we learn from this opinion about his of integrity of the Court. We have to one who could garner bipartisan support. style of judging, his views of campaign fi- Trump outsourced his Supreme Court se- nance reform, and what he might do if he is resolve this stolen seat. One way we lection to two of the most influential and elevated to the Supreme Court? can do that is to say: Hey, we are going well-funded right-wing ideological organiza- Riddle v. Hickenlooper involved three can- to put this on hold. We are going to put tions in the country: The Federalist Society didates vying for a seat in the Colorado it on hold until the investigation is and the Heritage Foundation. Their selection House of Representatives. There were two done with the President, and we are process is the one that matters, and it was major party candidates and one write-in can- going to put it on hold until we have a anything but transparent. What conversa- didate. Individual contributions to the Re- second open seat. At that point, the tions did they have with Gorsuch that led publican and Democratic candidates were President could propose Merrick Gar- them to include him on their list? When Sen. capped at $400, while the limit for the write- Blumenthal asked Gorsuch if he’d had any in candidate was $200. The reasoning for the land for one of the seats—the first seat conversations about Rowe v. Wade or abor- law was that major party candidates (typi- where he should have been duly consid- tion in general with the Heritage Founda- cally) have to go through a primary while ered to begin with—and a judge for the tion, Gorsuch only said that no such con- minor and write-in candidates do not. The second seat that is more to his liking, versations had occurred after the election write-in candidates sued, claiming that the off of his list, if you will. (long after he’d been included on the list). lower cap was a violation of contributors’

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.182 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2303 rights under the Fourteenth Amendment’s So let me return to where I started in more than 2,700 cases, writing in the equal protection clause. The district court yesterday evening. We are facing three majority 99 percent of the time and en- dismissed the claim, saying that contribu- very significant problems. The first joying unanimous support 97 percent of tion restrictions were constitutional. But a three-judge Tenth Circuit panel (consisting problem is that for the first time in the time. of two Republicans and one Democrat) history, we are considering a nominee He received the highest possible rat- unanimously reversed the lower court, find- for a stolen Supreme Court seat. That ing from a group the Democratic leader ing that the disparities in contribution lim- alone should be reason for everyone called the ‘‘gold standard’’ for evalu- its were, indeed, a violation of the equal pro- who cares about this institution to ating judicial nominations—the Amer- tection provision. turn down this nominee and to convey ican Bar Association. He has earned Gorsuch took the time to write a separate to the President that the only legiti- high praise from across the political concurring opinion. What’s encouraging mate nominee for this open seat is spectrum, with Democrats and Repub- about Gorsuch’s opinion is that he accu- rately discusses complex campaign law, and Merrick Garland, because as a Senate licans alike attesting to his qualifica- this takes time and skill. Trust me, I’ve read we have a stake in the legitimacy of tions, his fairness, and his impar- plenty of lower court opinions in campaign our work and that of the Court. To con- tiality. He also enjoys the support of a finance cases where the lower court judges firm anyone but Merrick Garland to bipartisan majority of the Senate. Yet . . . can’t follow the ins and outs of the ex- this seat confirms the Senate as the the Democratic leadership is now de- ceptions to the exceptions in campaign fi- thief who took the seat for the first termined to block his confirmation nance law. time in U.S. history and transported it with the first successful partisan fili- These details do not stump Gorsuch. He buster of a Supreme Court nominee in writes thoughtfully and incisively about how to another President in an effort to the Supreme Court has been unclear about pack the Court. American history. They proved that in exactly which level of scrutiny applies to Furthermore, if there is a person con- yesterday’s procedural vote. equal protection objections to differential firmed to this seat other than Merrick Judge Neil Gorsuch is one of the campaign contributions. In the end, he con- Garland, it will cast a shadow over most impressive nominees we have cludes that whether the standard is strict every 5-to-4 decision that individual ever seen. If a widely appraised nomi- scrutiny or intermediate scrutiny, the Colo- participates in, in the years to come. It nee like this can’t get past a Demo- rado law cannot justify allowing major party destroys the public credibility of the cratic filibuster, then no nominee of a candidates to raise twice as much as minor position. It makes the Supreme Court Republican President can. Democrats party candidates. Gorsuch also deserves credit for crafting simply into a political body to which would filibuster Ruth Bader Ginsburg his opinion narrowly and taking the time to clever campaign tactics have delivered if President Trump nominated her. We note the limits of the case’s holding. As he a majority for one ideological vision all know why. The Democrats are bow- wrote, ‘‘[h]aving said this much, it is worth over another. Let’s not enter into that ing to hard-left special interests who pausing to emphasize what isn’t said in these position of destroying the credibility of can’t get over the results of the elec- pages. Nothing in what I’ve suggested or the Senate process and the integrity of tion and thus are demanding complete what the court holds intimates that Colo- the Court in one fell swoop. Democratic opposition to everything— rado must adopt a per-election-cycle rather Second of all, we should not be con- than a per-election approach to the regula- everything this President touches. As tion of campaign contributions.’’ This lim- sidering a nominee from a President the Washington Post just reported, the iting language appears to display sensitivity who is under investigation for con- Democratic leader ‘‘seemed ready to to the fact that Colorado has great latitude spiring with Russia to change the out- endorse every argument activists to choose its own means of election adminis- come of an election. We don’t know made.’’ tration and campaign finance. This shows ju- where those investigations will lead, It seems some Democrats made up dicial incrementalism and a laudable degree but what we do know is that this places their minds long ago to oppose whom- of modesty. a big cloud over the legitimacy of him ever this President nominated. The But there are a few words from Gorsuch’s opinion which should give campaign finance holding the office. Let’s clear up that Democratic leader himself indicated as reformers pause. For one, he wrote, ‘‘[n]o one cloud. Let’s answer the questions that much before Judge Gorsuch was even before us disputes that the act of contrib- were raised when, a week ago Monday, selected. He even mused on a liberal uting to political campaigns implicates a FBI Director Comey came to Capitol talk show about holding the seat open ‘basic constitutional freedom,’ one lying ‘at Hill to talk to the House and say: Yes, indefinitely. So it doesn’t really mat- the foundation of a free society’ and enjoy- those investigations are underway. ter whom this President nominates; a ing a significant relationship to the right to We know what the diabolical prac- Democratic minority is determined to speak and associate, both expressly pro- tices of the Russians were. We know successfully launch an unprecedented tected First Amendment activities.’’ In other words, Gorsuch is maintaining the they created fake news. We know they partisan filibuster regardless. Perhaps link between political money and free had a team of roughly 1,000 people that is why Democrats still have yet to speech. He added, ‘‘[t]he plaintiffs before us sending out contrived social media put forward a cogent rationale to op- don’t complain that Colorado’s contribution messages to comment on the events of pose him—not that that would be easy, limits violate their First Amendment rights the day, to make it look like American you understand. because, say, the limits are too low for ev- citizens were commenting and to make As a longtime Democratic board eryone.’’ one candidate look very good and the member of the left-leaning American This last quote is ambiguous. It is not clear whether there is an inadvertently miss- other candidate look very bad. Constitution Society put it, ‘‘The Sen- ing word ‘‘they’’ before ‘‘say’’ which would Finally, this is an extreme nominee ate should confirm [Judge Gorsuch] be- mean he was attributing this statement to from the far right who does not believe cause there is no principled reason to the plaintiffs in the case. But the way it is in the fundamental vision of ‘‘we the vote no.’’ written sounds like Gorsuch himself is say- people’’ and makes decision after deci- Well, if there is no principled reason ing that contributions are too low for every- sion through tortured, twisted, con- to vote no on this nomination, then one. The limits at issue were $400 for major trived arguments to find for the power- there is certainly no principled reason party candidates and $200 for minor party ful over the people. That is unaccept- to prevent the Senate from taking a and write-in candidates. If this is his true be- able. vote on it at all. But that is just what lief, it would demonstrate hostility to one of The PRESIDING OFFICER (Mr. COT- the basic pillars of campaign finance reform a partisan Democratic minority of the since Watergate: modest contribution limits. TON). Under the previous order, the Senate is threatening to do—for the So the good news is Gorsuch can navigate time until 11 a.m. will be controlled by first time in the nearly 230-year his- his way through a tangle of precedent—a the majority. tory of the Senate. basic qualification for a jurist. The bad news RECOGNITION OF THE MAJORITY LEADER Let me remind colleagues of some- is he may harbor antipathy to regulating The majority leader is recognized. thing I said yesterday. When President money in politics. If Gorsuch is elevated to Mr. MCCONNELL. Mr. President, Clinton nominated Justice Ginsburg, I the Supreme Court, he can help conserv- Neil Gorsuch is eminently qualified to voted to confirm her. When President atives move the goal post to script scrutiny so that Colorado’s and other States’ at- serve on the Supreme Court. He was Clinton nominated Justice Breyer, I tempts to temper the role of money in poli- confirmed by the Senate to his Federal voted to confirm him. When President tics will be far more difficult to justify in judgeship with no Democratic opposi- Obama nominated Justice Sotomayor court. tion at all—none. He participated there and Justice Kagan, I led my party in

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.184 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2304 CONGRESSIONAL RECORD — SENATE April 5, 2017 working to ensure that they received That still sounds very familiar for tion, so that nominees would be af- an up-or-down vote—in other words, this year we are in. forded an up-or-down vote, consistent not a filibuster. I knew I would often At the same time, one major concern with the Senate’s history and practice. disagree with their opinions on the for the hard-left liberal interest groups Well, Republicans exercised restraint Court, and I certainly wasn’t wrong was that President Bush, who they and agreed to step back. Then Presi- about that, but I thought it was the claimed wasn’t legitimate, would be dent Obama became President. Our side right thing to do. able to nominate conservative judges. didn’t like the use of a filibuster for I understand that our Democratic Again, doesn’t that sound familiar? judges, but we also didn’t think there colleagues are currently under a great Senator CORNYN went over some of should be two sets of rules—one for a deal of pressure from special interests this same subject yesterday, but it de- Republican President and one for a on the far left. I think everyone in serves discussion now, and it serves as Democratic President. Common sense elected office can empathize with this a reminder of where we have been be- tells you that is a legitimate position situation they are experiencing. Lis- fore because sometimes the past pre- to take. tening to these hard-left special inter- dicts the future. We defeated two circuit court nomi- ests may seem like the politically ex- So in the spring of 2001, the hard-left nees, one to the Ninth Circuit and one pedient thing for Democrats to do for interest groups went to the Senate to the DC Circuit. Then President their party today, but I would ask Democratic leadership with a plan. Ac- Obama nominated three individuals to them to make their decision based on cording to the New York Times, ‘‘42 of the DC Circuit. Our side denied cloture what they know is right for the coun- the Senate’s 50 Democrats attended a on those three nominees to the DC Cir- try tomorrow. private retreat . . . where a principal cuit. There is still time for them to make topic was forging a unified party strat- the right choice. There is still time for Well, at that point, their side didn’t egy to combat the White House on judi- like playing by the rules they wrote, so them to support a nominee who even cial nominees.’’ Thinking about 2017, longtime Democrats have praised—or, then-Majority Leader Reid took an- doesn’t that sound a little familiar? other unprecedented step. In November at the very least, to not block him At that meeting—Cass Sunstein, with the first successful partisan fili- of 2013, he utilized the so-called nuclear Marcia Greenberger, and Laurence option to eliminate the very tactic buster in American history. Tribe spoke at the retreat and pitched So I hope Democrats reevaluate their they pioneered. The nuclear option be- to the Democrats who were present comes effectively the regroup. position before the important vote we their idea of how this crusade could So that is how the filibuster was first will take tomorrow. I hope they will proceed. used on lower court nominees and later consider what their actions would According to one attendee, ‘‘They eliminated. Senate Democrats took the mean for future Supreme Court con- said it was important for the Senate to unprecedented step to utilize that. firmations. I hope they will consider change the ground rules, and there was Then when it no longer benefited them, what their actions could mean for the no obligation to confirm someone just they used unprecedented means to future of this body more broadly, too, because they are scholarly and eru- eliminate it. because, as we all know, the American dite.’’ people will be watching. History will Well, let’s think about that for a mo- This brings me back to where we are record the decision Democrats make, ment. Why do you suppose they be- today and the rest of this week—talk- and there is simply no principled rea- lieved they needed to ‘‘change the ing about a Supreme Court nominee, son to oppose this exceptional Supreme ground rules’’ for confirming judges? It Judge Gorsuch. Court nominee. is because up to that point you didn’t Everyone knows we had a big debate The PRESIDING OFFICER. The Sen- filibuster judges. You just didn’t. You last year about whether to proceed ator from Iowa. with the Garland nomination. There Mr. GRASSLEY. Mr. President, we heard the majority leader speak to that point in his short remarks this were 52 Republicans who believed we are continuing to debate the nomina- should follow Senate history and tradi- tion of Judge Gorsuch to serve as Asso- morning about how things have changed after more than 200 years. tion and not proceed with the nomina- ciate Justice of the Supreme Court. My tion in the middle of a heated election colleagues on both sides of the aisle Well, as it happened, less than a month after the caucus retreat, Sen- year. have said that this is an important mo- I know it frustrates my colleagues to ment for the Senate. I couldn’t agree ator Jeffords from Vermont switched parties and began caucusing with the hear me say it, but fact is that in 1992, more. when then-Senator Biden was chair- I think it is important to reflect on Democrats. That threw the majority to man of the Judiciary Committee, he why we are here and how we got here. the Democrats for the next 18 months. announced that he wouldn’t hold a Before I turn to the Supreme Court and Then they lost the election of 2002, and hearing to fill a vacancy in the last the current debate, let me take just a in the spring of 2003, Republicans were few minutes to talk about lower court back in the majority. year of President Bush’s term. So last nominees and provide a little bit of his- Now back in the minority, Senate year, we followed the precedent that tory and context, especially for the Democrats went ahead with the plans then-Senator Biden described in 1992 benefit of some of the Senators who that were enunciated at that retreat to for all of the same reasons he dis- weren’t here over the last few years. ‘‘change the ground rules.’’ For the cussed. I am going to start way back in the first time in the history of the Senate, You get back to this commonsense spring of 2001. President George W. they began to systematically filibuster principle: Can you have one rule for Bush had just been elected President. circuit court nominees—not because Republican Presidents and another rule As we all know, it was a close election, they believed the nominees weren’t for Democratic Presidents? We didn’t and it was hard fought. The Senate was qualified. The nominees were qualified. feel you could. And, of course, everyone closely divided, with the Republicans And it was not because they believed in this Chamber knows that if the shoe in control. Given how close the Presi- the nominees didn’t have the necessary were on the other foot, the Democrats dential election was, there were ele- experience. The nominees did have the would have done the same thing, be- ments of the hard left who refused to necessary experience. They filibustered cause they said they would. In fact, accept the results of that election. those nominees because they believed President Obama’s former White House Some blamed Ralph Nader, others they were conservative judges. Counsel admitted as much. She said blamed Governor Jeb Bush, and still So with respect to appellate court she would have recommended the same others blamed the Supreme Court. nominees, Senate Democrats, at the course of action if the tables were Many on the hard left claimed that behest of the far left, took the unprece- turned. President George W. Bush wasn’t a ‘‘le- dented step of using the filibuster in a So now here we are, April 2017, with gitimate’’ President. Liberal interest very systematic way for the first time the nominee before us. Just as in 2001, groups were egging on the Democratic in Senate history. At the time, there we have just had a very contentious leadership to fight the new President was a lot of debate about changing the Presidential election. It was close. It at every turn. rules, dubbed the so-called nuclear op- was hard fought, and frankly, some on

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Mr. President, I ask praised the way she put the ‘‘rule of lead the very first partisan filibuster of unanimous consent that the order for law above everything else.’’ He said a Supreme Court nomination in U.S. the quorum call be rescinded. that she followed the texts of statutes, history. Based on the vote we had yes- The PRESIDING OFFICER. Without ‘‘even when doing so results in rulings terday, it appears 44 Democrats are objection, it is so ordered. that go against so-called sympathetic prepared to follow the minority leader Mr. BARRASSO. Mr. President, I litigants.’’ That was in 2009. Now it is on this fool’s errand. No Supreme come to the floor today because we are 2017, and that is the identical standard Court nomination in our country’s en- at a decisive and consequential mo- Judge Gorsuch has continued to follow. tire history has ever failed because of a ment in the Senate. We are here to Judge Gorsuch pointed out that it is partisan filibuster. There is no getting consider the nomination of Judge Neil his job to apply the law, not to write around that fact. Gorsuch to be a Justice of the U.S. Su- the law. Writing laws is the job of Con- Abe Fortas, whom I have referred to, preme Court. gress. We are not here to select the was subjected to a bipartisan filibuster Will Democrat Senators vote to have 101st Senator; we are here to select a over ethical concerns when President a well-qualified, mainstream Justice Justice for the Supreme Court. We are Johnson tried to elevate him to be who stands for the rule of law, or will selecting a Justice for the most impor- Chief Justice. the extreme leftwing of that party con- tant Court in the land, and it is impor- Justice Thomas was confirmed by a tinue to try to call the shots? That is tant and imperative that we take this vote of 52 to 48. I was here for that a decision Members are going to have decision seriously and that we set aside nomination. A single Senator—any to make. any partisan grudges. Senator—could have demanded a clo- America needs judges who can follow Democrats who want to filibuster ture vote, but out of 100 Senators, none the law, apply the law, have the high- this judge are not arguing any prin- did. Why? For the simple, common- est ethical standards, and value the ciple here. Reasonable individuals sense fact and 200 years of history that independence of our courts. To me, know this nominee deserves to be con- you don’t filibuster a Supreme Court that is a description of Judge Gorsuch. firmed. nomination. That is him in a nutshell. We saw it One lawyer wrote an op-ed in the But today is entirely different. The throughout his career, and we saw it Washington Post on March 8, a board minority is committed to filibustering again at his confirmation hearings in member of the very liberal American this fine nominee in the first partisan the Judiciary Committee. Constitution Society. He wrote that filibuster in U.S. history. Democrats on the committee asked ‘‘there is no principled reason’’ to vote So here we are. The President has him to answer hypothetical questions. against Judge Gorsuch. Well, he is ex- nominated an exceptionally qualified They asked about issues that are prob- actly right. judge to take Justice Scalia’s seat on ably going to be coming before the Su- I listened to the arguments Demo- the Supreme Court. The Democrats preme Court of the land. There are eth- crats made in the confirmation hear- will break new ground again by con- ics rules that say that judges and ing. I was not convinced. If any of my ducting a partisan filibuster of the nominees cannot answer those kinds of colleagues on the Democratic side of nominee. Republicans aren’t the ones questions and, of course, Judge the aisle are undecided about how to breaking new ground here. As a matter Gorsuch followed the rules. That is ex- vote, I suggest they go back and look of fact, the Democrats’ own Vice Presi- actly what other nominees have done and listen to the hearings as well and dential nominee last year emphatically in the past who were nominated by Re- look at what other people have said promised that the Democrats would publican Presidents and Democratic about this nominee. further change the rules to make sure Presidents. A Chicago Tribune editorial said that an expected-President Clinton’s nomi- Ruth Bader Ginsburg did so in her confirmation hearing revealed ‘‘unas- nees couldn’t be filibustered. confirmation hearing in 1993. She said: sailable assurances by Gorsuch that he So at the end of the day, the fact is ‘‘A judge sworn to decide impartially would decide each case on the merits, that if Democrats insist on a filibuster, can offer no forecasts, no hints.’’ She based on the law as written, applied to the Republicans will insist on following said this would display disdain for the the world as it is today.’’ the practice that Senators have fol- entire judicial process. Of course, she The Detroit news agreed. It said that lowed for more than 200 years, and that was confirmed and sits on the Court Judge Gorsuch showed that he is a is not to have a partisan filibuster for today. It has been known as the Gins- ‘‘deeply knowledgeable nominee who somebody going to the Supreme Court. burg standard, and every nominee since should be confirmed by the Senate.’’ We don’t conduct partisan filibusters of her nomination hearing has followed On Monday, USA TODAY had their Supreme Court nominees, and we cer- that same standard. That is what Jus- own headline. It said, ‘‘On the Merits, tainly are not going to start with this tice Gorsuch did. Gorsuch Merits Confirmation.’’ highly qualified nominee. The Democrats on the Judiciary The American Bar Association sur- I hope those that think back 16 or 17 Committee tried to criticize Judge veyed 5,000 people who have worked years—when this meeting of Democrats Gorsuch for some of his opinions that with Judge Gorsuch over the years. in retreat came to the conclusion that they didn’t like. They talked about a These people described him using words you had to break new ground—realize couple of cases where the person who like ‘‘brilliant,’’ ‘‘thoughtful,’’ and that they have poisoned the well of the was on the losing side in the case was ‘‘really, really, really smart.’’ comity traditional of the Senate. I sympathetic. They suggested that the The Bar Association also found that think maybe a lot of them realize that Court should have ignored the law and ‘‘Judge Gorsuch believes strongly in was a mistake, as we realized that was sided with ‘‘the little guy’’ in the in- the independence’’ of the judiciary. a mistake, and it would be nice to get volved cases. Judge Gorsuch pointed This is the Bar Association. The Amer- back to the comity of the Senate that out that judges are absolutely not sup- ican Bar Association predicted that existed on judges prior to 15 or 16 years posed to consider what they think is ‘‘he will be a strong but respectful ago. But that is going to take people sympathetic. They are supposed to rule voice in protecting it.’’ The group on their side who were present at that on the law. Federal judges actually ended up giving him its highest pos- same retreat who are still in the U.S. swear an oath ‘‘to administer justice sible rating. Interestingly, Senator Senate to drill a new well, because the without respect to persons, and do SCHUMER once called this group ‘‘the present one is poisoned, and we need to equal right to the poor and to the gold standard’’ for evaluating judges— get back to the comity that we have rich.’’ ‘‘the gold standard,’’ he called it—and had. Most Senators recognize that judges they have given him their highest pos- I yield the floor. should be impartial. The minority sible rating. So why does the minority

VerDate Sep 11 2014 00:50 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.188 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2306 CONGRESSIONAL RECORD — SENATE April 5, 2017 leader think the gold standard is not ommended to the Vice President that He is not the President’s man, not good enough anymore? Judge Neil Gorsuch of Denver, CO, the party’s man, nor will he represent Judge Gorsuch was even introduced should fill the Scalia seat on the Su- an ideological movement on the Court. at his confirmation hearing by a preme Court. Judge Gorsuch will be his own man, former top lawyer for the Obama ad- I am, of course, very pleased that my following the law where it leads. That ministration. Neal Katyal is a Demo- advice was considered. I offered that is what we should want in a Supreme crat. He served as Solicitor General of recommendation before I had an oppor- Court Justice. Judge Gorsuch’s the United States under President tunity to sit down one-on-one with unshakable integrity explains why he Obama. He called Gorsuch ‘‘one of the Judge Gorsuch, although, in fairness, has earned the unanimous ‘‘well quali- most thoughtful and brilliant judges to we had an opportunity in the Senate to fied’’ rating from the American Bar As- have served our nation over the last review Judge Gorsuch and his creden- sociation. century.’’ Let me repeat. This is some- tials in 2006 when this body voted to I am also enthusiastic about Judge one who served as Solicitor General of confirm him by voice vote to the U.S. Gorsuch because he brings a western the United States under President Court of Appeals where he now sits. perspective to a Court that is des- Obama calling Judge Gorsuch ‘‘one of After spending time with this excep- perately in need of diversity. Mr. Presi- the most thoughtful and brilliant tionally talented jurist and after re- dent, you would surely agree with judges to have served our nation over viewing his performance before the that—that making sure we have those the last century.’’ He even wrote an op- Senate Judiciary Committee, my level who are knowledgeable based on their ed in the New York Times that pre- of respect for him has only grown. experience, of what is like to live in dicted that Judge Gorsuch would ‘‘help Judge Gorsuch checks the box on the West is important. Six of the eight to restore confidence in the rule of every measure of what I am looking for sitting Supreme Court Justices have law.’’ Help to restore confidence. Isn’t in a Supreme Court nominee. Intellec- spent their entire professional careers that what we want as a nation—con- tual capacity, experience, independ- in the Boston-Washington corridor—six fidence in the rule of law? ence, integrity—he has all of these. of the eight. The only sitting Justice I think that any Democrat who has There is no question that he has the in- who came to the Supreme Court from looked at this nominee’s record will tellectual capacity to meet the chal- someplace other than the Boston- find it is an easy decision to confirm lenge. Yes, we acknowledge he is an Ivy Washington corridor is Anthony Ken- him. If there is a Democrat who League graduate from Columbia and nedy, who was elevated from the Ninth reaches the opposite conclusion, I say Harvard Law, and that actually de- Circuit. Judge Gorsuch has, of course, come to the floor of the Senate and ex- scribes many people at the top of the done the ‘‘Washington thing,’’ but his plain why you think our judges should legal profession, but that alone is not home is in the West, and he served for go into a case favoring one side over what makes Judge Gorsuch excep- a decade on the Tenth Circuit in Den- another because one side is more sym- tional. ver. I think that makes a real dif- pathetic than the other. If there is a Judge Gorsuch did something that ference, at least in my book. Member who thinks that a judge most practicing lawyers don’t do. He Appellate judges in the East rarely should make promises about how they went on to earn a doctorate in legal hear cases involving Federal Indian law will rule just to win a confirmation philosophy at Oxford. I think this is and Native American issues. Among vote of a given Senator, I say come to one of the many illustrations of Judge the hundreds of cases that Judge the floor and make your case. If there Gorsuch’s tremendous depth. And Gorsuch has heard, dozens involve Indi- is a Member who thinks a Justice on whatever else my colleagues will have ans and Indian law. In deciding those the Supreme Court should rule based to say about Judge Gorsuch in this cases, he has demonstrated great sensi- on that Justice’s own preferences and contentious confirmation debate, there tivity to the unique role of Indian Na- not based on the law, I would say is no question that he is an intellectual tions under our Constitution. please come to the floor of the Senate heavyweight. I think that explains why Judge and say so. I next look to those who mentored Gorsuch has been enthusiastically en- I don’t think that is what the Amer- Judge Gorsuch along the way, and one dorsed by the National Congress of ican people want. The American people really cannot have better mentors than American Indians as well as the Native do want Justices who are smart. They the late Justice Byron White and sit- American Rights Fund. NCAI is the want Justices who are principled, who ting Justice Anthony Kennedy. Justice umbrella organization for the Nation’s are fair, and who know that their job is Kennedy, we all know, has carved a federally recognized Tribes. NARF is to follow the law, not to write the law niche for himself as the swing vote on an independent, highly respected public and not to legislate from the bench. the Supreme Court. There is a great interest law firm which advocates for The American people know that Neil deal of debate about whether a Justice Native Americans nationally. Neither Gorsuch is exactly that kind of judge. Gorsuch will be more of a Scalia than of these organizations—neither NCAI He is the kind of judge we should have a Kennedy or a White or whether, in- nor NARF—could ever be characterized on the Supreme Court, we need on the stead, he will be a Gorsuch. I suspect as right-leaning. Yet they have en- Supreme Court, and we need on every that he will be a Gorsuch, and that is dorsed Judge Gorsuch after reviewing court in the land. That is why I am fine by me. his track record on cases involving Na- committed to vote to confirm Neil What really matters is that Judge tive rights. I think it is also important Gorsuch to serve on the U.S. Supreme Gorsuch will come to the Supreme to recognize that the Central Council Court. Court with a strong understanding of of the Tlingit and Haida Tribes of Alas- Mr. President, I yield the floor. its dynamics, and there is no question ka has also endorsed the Gorsuch nom- I suggest the absence of a quorum. that he will be effective from day one. ination, which is important for Alaska The PRESIDING OFFICER. The There is no question that he will be his Natives. clerk will call the roll. own man. I want to emphasize that Another example: The Federal gov- The bill clerk proceeded to call the point. ernment controls vast amounts of land roll. Judge Gorsuch made it very clear to in the West and, of course, that in- Ms. MURKOWSKI. Mr. President, I me when we met that he has made no cludes our home State of Alaska. Pub- ask unanimous consent that the order commitments to the President or his lic lands cases tend to originate in the for the quorum call be rescinded. team. And he made it clear at the hear- West, not in the East. It is tremen- The PRESIDING OFFICER (Mr. SUL- ings that if any commitment were dously important that somebody on LIVAN). Without objection, it is so or- sought, he would have gotten up and the Supreme Court have a familiarity dered. walked out. After spending time with with these issues, and Judge Gorsuch Ms. MURKOWSKI. Mr. President, Judge Gorsuch, I believe him. I believe clearly does. like several in this Chamber, I was him on that. His commitment to an Along with the pervasive Federal asked for my input to the President on independent judiciary is resolute, and I presence in the West comes a huge Fed- whom to nominate to the U.S. Supreme think on this issue he will not bend to eral regulatory influence. Mr. Presi- Court. After much reflection, I rec- political expedience, as he should not. dent, you and I know that Alaskans

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So today I offer Judge Gorsuch my the proposition that Federal courts I have seen judicial nominees come most enthusiastic endorsement. I have must defer to agency interpretation of and go over my 14 years in this body, no doubt that before we leave for the law when regulations are chal- but I will tell you, I haven’t seen any- Easter recess, he will be confirmed as lenged. That is a very good thing be- one more intriguing than Judge an Associate Justice of the U.S. Su- cause when a homeowner has to go to Gorsuch with his qualifications. He has preme Court. court to litigate the question of wheth- had a stellar legal career. He is bril- I yield the floor. er the pond in the back of his house is liant. He is a rock star among Federal I suggest the absence of a quorum. The PRESIDING OFFICER. The regulated wetland, the last thing that judges. And that kind of judge is the one law students would compete to clerk will call the roll. the homeowner wants to hear is that The senior assistant legislative clerk clerk for. If this body could step back the scales of justice are somehow proceeded to call the roll. from the politics of all this, he should tipped in favor of the agency on accord Mr. MCCAIN. Mr. President, I ask of a principle known as Chevron def- be confirmed with upwards of 80 or 90 unanimous consent that the order for erence. votes, not subjected to a filibuster. the quorum call be rescinded. I understand—and we all know—that That is the caliber of the person we are The PRESIDING OFFICER. Without there are some interest groups that considering. I honestly cannot fathom objection, it is so ordered. suggest that Judge Gorsuch’s views on why an individual of Judge Gorsuch’s SYRIA Chevron deference means that some- stature would be drug through the Mr. MCCAIN. Mr. President, before I how or another he stands for big busi- mud. I just don’t believe that reflects get into my remarks about the impend- ness and against the little guy. To well on this body. ing action of the Senate with regard to those organizations, allow me to intro- I am known within the Senate for my the so-called nuclear option, I would duce you to an Alaskan named John independence in evaluating judicial just point out that the attacks yester- Sturgeon. nominees. While I was not a part of the day on innocent men, women, and chil- Mr. President, you and I know him Gang of 14 back in 2005 who proposed dren should not have come as a sur- well. Mr. Sturgeon was prohibited from the standard for Federal court nomi- prise. It was in 2013 that the then-Sec- taking his hovercraft, his boat, up a nees, I have pretty much chosen to live retary of State, Secretary of Defense, river in northern Alaska adjacent to by it. Except in the most extraordinary and the head of the CIA recommended National Park Service land. Mr. Stur- of circumstances, I do not believe judi- to the President that we arm the Free geon had to go all the way up to the cial nominees should be denied a Syrian Army and bring Bashar Assad’s Supreme Court to vindicate that right, straight up-or-down vote. I just don’t barbarity to a halt. The President of and, against many odds, he won. believe they should be denied that. I the United States rejected that. Bashar I think it is clear that Federal agen- have practiced that. If one were to ex- Assad used chemical weapons, and the cies can and do trample on the rights amine my record, it is clear that I have President called me and Senator GRA- of the little guy. I will tell you, I find walked that walk. Sometimes it has HAM over to the White House and said: Judge Gorsuch’s views on the question been a walk accompanied by my friend If they cross the redline, I am going to of deference highly refreshing at this the Senator from Maine. In the case of act. We are going to degrade Bashar point in time. Goodwin Liu’s nomination to the Ninth Assad and upgrade the Free Syrian I should point out that I don’t agree Circuit, I was the sole Republican to Army and have regime change. with all of the opinions written by stand up for this principle and vote Then, of course, he backed down. You Judge Gorsuch, but I don’t expect that against a filibuster. I would not have know, there is one thing worse than from a nominee. That is almost an im- voted to confirm Mr. Liu, but I felt doing nothing: It is saying you are possible standard. In fact, Judge very strongly that he had the right to going to do something and then not Gorsuch himself has acknowledged an up-or-down vote. doing it. That sent a signal everywhere that. I do expect that the nominee be So we are at this place today in con- in the world, not just Syria. The fact always true to the law, as Judge sidering not a nominee to the Ninth is, we knew it would happen again. So Gorsuch has demonstrated throughout Circuit but a nominee to the Supreme we have seen this movie before. Unless his career. Court. I would ask my colleagues on we act, we are going to see it again. Finally, from everything I know, the Democratic side to give the same I am encouraged, frankly, that Gen- Judge Gorsuch is a good and a decent deference to Judge Gorsuch. eral Mattis, General McMaster, and the man. He is a husband. He is a father of I also pride myself as one who be- President of the United States have two girls. He is an outdoor person. He lieves in the traditions of the Senate, said that this act of incredible bar- is a person who gives back to the next but it is not the tradition of the Senate barity and cruelty will not go generation. In addition to his judicial to filibuster a U.S. Supreme Court unresponded to. But I can assure my duties, he regularly teaches legal eth- nominee. colleagues this: If we don’t respond to ics and professionalism at the Univer- I do not believe that Judge Gorsuch this, then there will be more use of sity of Colorado Law School. In the is getting a fair shake in today’s Sen- these chemical weapons and weapons of classroom, he is known to have great ate, and as deeply as I care about bi- mass destruction, and there will be respect for his students and their di- partisanship in this body, I will not ac- more innocent people who will die. verse views. quiesce to an effort to deny Judge Eight years of Obama’s failure is In endorsing Judge Gorsuch’s ele- Gorsuch a seat on the Supreme Court. what led to the events that just took vation to the Supreme Court, the Den- I acknowledge my friends on the place that horrified all of us. That re- ver Post suggested that ‘‘While Demo- other side of the aisle who have indi- quires us to stand up to this barbarity, crats will surely be tempted to criti- cated that they will not support a fili- help the Free Syrian Army, establish cize the nomination of anyone Trump buster, and I implore those of my col- safe zones, and make sure that Bashar appoints, they’d be wise to take the leagues who have indicated that they Assad, propped up by the Russians and high road and look at qualifications will filibuster the nomination of Neil the Iranians and the Iranian Revolu- and legal consistency.’’ That is an edi- Gorsuch to reconsider that position. tionary Guard and Hezbollah, is no torial from the Denver Post, published After spending time with Judge longer able to perpetrate these war on January 16 of this year, 2017. Those Gorsuch, after studying his life story, I crimes on innocent men, women, and are pretty wise words. Again, ‘‘Demo- am left with the undeniable impression children. crats would be wise to take the high that Neil Gorsuch has been nominated Mr. President, it is also with some road and look at his qualifications and to a position that he has prepared his sorrow that I regret having to come to

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.193 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2308 CONGRESSIONAL RECORD — SENATE April 5, 2017 the floor to speak once again on the We are in a terrible place. My col- means for the Senate. What goes around issue of eliminating the 60-vote thresh- leagues should understand that this is comes around. And someday, they’re going old on judicial nominations, specifi- a historic moment if we move forward to be in the minority. cally a nominee to the U.S. Supreme with it. Senator BURR said on that same day: Court. It is particularly troubling to do In 2013, then-Majority Leader Harry The American people know what they get so because the nominee in question, Reid changed the Senate rules to elimi- when the minority party is stripped of its fil- Judge Neil Gorsuch, has impeccable nate the 60-vote threshold on most ju- ibuster rights: they get unchecked power by legal credentials and a strong reputa- dicial and executive branch nominees. the executive branch. tion as a fair- and sharp-minded lawyer Those in my party, including me, were He went on to say: and jurist. The American Bar Associa- enraged—rightly so. We warned that If sweeping legislation and lifetime ap- tion and many others of all political the Democrats would not be in control pointments cannot muster 60 votes in the stripes agree that his distinguished ca- of the Senate or the White House for- United States Senate, then it probably is not ever and that they would come to re- a good idea to force either on the American reer as a lawyer and a jurist makes people. him well qualified for the position of gret their actions. We were right. My own colleagues on this side of the Associate Justice on the U.S. Supreme Their actions came back to haunt aisle need to remember our own words Court. them. I believe our actions will haunt and heed our own warnings. We will Regrettably, very regrettably, my us as well. not control this body forever. We will colleagues in the minority have de- In an op-ed on November 27, 2012, not hold the White House in per- cided to filibuster the nomination of Senator MCCONNELL, knowing of the petuity. What we are poised to do at this good, decent, highly qualified man. Democrats’ plans to change the Senate the end of this week will have tremen- Numerous times over the years, the rules in their favor, wrote this: dous consequences, and I fear that Senate has come to a standstill over A serious threat has been quietly gath- someday, we will regret what we are nominees, whether they were judicial ering against one of the most cherished safe- guards of liberty in our government—the about to do. In fact, I am confident we or executive branch. That gridlock has right of a political minority to have a voice. will. inevitably led to threats from the ma- Until now, this has always been the defining Having said that, it is hard for me to jority—whichever party was in the ma- characteristic of the Senate. That’s why all keep a straight face when I hear the jority—to use the ‘‘nuclear option,’’ ba- Senators have traditionally defended the current righteous indignation coming sically changing the rules of the Sen- Senate as an institution, because they knew from the other side. After reading the ate of 200 years to strip the minority that the Senate was the last legislative comments some of my Democrat party of their right to filibuster cer- check for political minorities and small friends made in 2013, it is difficult to tain nominees. states against the kind of raw exercise of have much sympathy for where they I have been privileged several times power large states and majority parties have always been tempted to wield. find themselves today. to be a part of a group of Senators who The threat I’m referring to is the effort by Senator MERKLEY, who was perhaps were able to come together and nego- some Democrats, most of whom have never the biggest proponent of changing the tiate agreements to end the gridlock served a day in the minority, to force a rules at that time, said this: surrounding nominees, avert the nu- change in the Senate rules. clear option, and allow the Senate to Without the nuclear option, Republicans How soon we forget. are going to disable the executive branch. move forward with our work on behalf In fact, Chairman GRASSLEY exactly Ending the abusive filibuster on nomina- of the American people. My work in predicted what is about to happen. In tions is a big step toward restoring the these groups—often referred to as November 2013, he said: functionality of the Senate, and that mat- gangs—has won me both praise and Not too many years ago, my colleagues on ters for all of us. condemnation and has often put me at the other side described their fight to pre- This is a terrific vote for the U.S. Senate. odds with some in my own party. serve the filibuster with great pride. Today Senator UDALL said: the other side is willing to forever change In 2005, I joined 13 of my colleagues I’m just so encouraged now that we’re the Senate because the Republicans have the going to be able to—without filibusters—put in an agreement that allowed for votes audacity to hold them, the majority party of people on the courts in an orderly way. on three of President Bush’s judicial today, to their own standard. nominees who were being filibustered The silver lining is that there will come a Senator WARREN said on November by the Democrats, who were in the mi- day when roles are reversed. When that hap- 13, 2013: nority at the time. Part of that agree- pens, our side will likely nominate and con- We need to call out these filibusters for ment addressed future nominees. It firm lower court and Supreme Court nomi- what they are: Naked attempts to nullify the stated: nees with 51 votes regardless of whether the results of the last election. Democrats actually buy into this fanciful If Republicans continue to filibuster these Signatories will exercise their responsibil- notion that they can demolish the filibuster highly qualified nominees for no reason ities under the Advice and Consent Clause of on lower court nominees and still preserve it other than to nullify the President’s con- the United States Constitution in good faith. for the Supreme Court. stitutional authority, then Senators not Nominees should only be filibustered under only have the right to change the filibuster, extraordinary circumstances, and each sig- Senator ALEXANDER, on November 21, Senators have a duty to change the filibuster natory must use his or her own discretion 2013, when threatened with the nuclear rules. We cannot turn our backs on the Con- and judgment in determining whether such option by the Democrats, said: stitution. We cannot abdicate our oath of of- circumstances exist. This action today creates a perpetual op- fice. In other words, if that nominee is so portunity for the tyranny of the majority be- Senator SANDERS on May 14, 2013, far out of the mainstream that it is ex- cause it permits a majority in this body to do whatever it wants to do any time it wants said: traordinary, only then would they seek to do it. If we bring this nomination to the floor to block the nomination and filibuster. Senator ALEXANDER went on to say: and there is a request for 60 votes, which I have had conversations with col- we’re not going to get, I think it is time for leagues on both sides of the aisle in an In my view, this is the most important and most dangerous restructuring of Senate the Democratic leadership to do what the attempt to once again come up with a rules since Thomas Jefferson wrote them at American people want, and that is to have a way forward and avoid both a filibuster the beginning of our country. majority rule in the United States Senate. of Judge Gorsuch and the nuclear op- On November 21, 2013, Senator I did not make up those last quotes. tion. Sadly, I learned on Monday that SHELBY said: Those are actual quotes. This isn’t fake those efforts had failed and that the Democrats won’t be in power in perpetuity. news. Democrats had secured the necessary This is a mistake—a big one for the long run. Elections have consequences, my votes to successfully filibuster the Maybe not for the short run. Short-term friends. Elections have consequences. highly qualified Supreme Court nomi- gains, but I think it changes the Senate tre- I hope my colleagues on both sides of nee for the first time in our history. In mendously in a bad way. the aisle keep this in mind: Now that response, the majority leader has indi- The same day, on the same issue, we are entering into an era where a cated that he will move to change the Senator THUNE said: simple majority decides all judicial Senate rules and eliminate the ability I think Democrats are playing with fire. nominations, we will see more and of the minority to do so. This is very dangerous in terms of what it more nominees from the extremes of

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That is not a good way to start longer be confident of equal protection awe that seeks to please You in all a process of bringing in a consensus under the law. they think, say, and do. nominee to the Supreme Court of the When then-Majority Leader Reid Lord, surround the families and vic- United States. changed the Senate rules in 2013, there tims of the Syrian chemical attacks To my knowledge, there was no con- was no one more critical of his actions with Your unfailing love. sultation with any Democrats prior to than the Senator who stands before We pray in Your merciful Name. the nomination being made. The reason you now. I fought hard to convince my Amen. why consultation with all Members of colleagues of the damage those changes The PRESIDING OFFICER (Mrs. the Senate is important is that if you would do to this body. I did so because ERNST). The Senator from Maryland. engage in real understanding as to I love the Senate. I revere this institu- Mr. CARDIN. Madam President, I what the Senate—and we represent the tion and the place it holds in our sys- take this time to explain to the people entire country—is looking for in a Su- tem of government. It is imperative of Maryland and our Nation my views preme Court Justice, you have a much that we have a functioning Senate on Judge Neil Gorsuch to be an Asso- better chance of ending up with a where the rights of the minority are ciate Justice of the Supreme Court of nominee who is going to enjoy broader protected, regardless of which party is the United States. support, bipartisan support, real bipar- in power at the time. There is no more important responsi- tisan support in the U.S. Senate, and While what happened in 2013 was in- bility that a Member of the Senate has then the 60-vote threshold does not be- furiating to our side, it was also heart- than the advice and consent of an Asso- come a hurdle. breaking. It was heartbreaking because ciate Justice of the Supreme Court of There is a reason we have the rules it seemed to me that the uniqueness of the United States. Of the many impor- we do in the Senate, and the 60-vote the Senate had been irreparably dam- tant responsibilities we have, this is concept on a controversial nominee is aged and, along with it, any hope of re- one of the most important responsibil- so that we don’t end up with an ex- storing meaningful bipartisanship. ities. treme candidate who would end up I have taken this on to try to under- The unprecedented nature of the being on the Supreme Court of the stand as much as I can about Judge Democrats’ filibuster of a Supreme United States, that there must be that Gorsuch, to understand the dynamics Court nominee has left me in the dif- process that would generate 60 votes. ficult position of having to decide of what his membership on the Su- preme Court would mean, because I So despite my concern about the whether to support finishing what process that was initiated by President Harry Reid and the Democrats started recognize it is not just an appointment for this term of Congress. This is a life- Trump in the nomination, I have tried in 2013 and eliminate the 60-vote to look at all of the opportunities to threshold on Supreme Court nomina- time appointment, and it is very pos- sible that he, if confirmed, will serve understand Judge Gorsuch’s record and tions. I find myself torn between pro- his likely actions as a member of the tecting the traditions and practices of on the Supreme Court for a generation. So his impact on the workings of the Supreme Court. I took the time to the Senate and the importance of hav- meet with Judge Gorsuch, and I found ing a full complement of Justices on Supreme Court is something that is ex- tremely important to each Member of that interview, that process, to be ex- the U.S. Supreme Court. tremely helpful in understanding his I am left with no choice. I will vote the Senate. judicial philosophy. I monitored the to change the rules and allow Judge I think many of us are looking for an hearings that took place in the Senate Gorsuch to be confirmed by a simple Associate Justice who can bring about Judiciary Committee, and I found that majority. I will do so with great reluc- more consensus on the Supreme Court, testimony to be helpful. I reviewed the tance, not because I have any doubts who can try to deal with some of the testimony of experts who had sub- that Judge Gorsuch will be an excel- great divisions in our Nation in a way mitted both verbal and written com- lent Justice but because of the fur- that represents the values of our Con- ments in regard to Judge Gorsuch. I ther—and perhaps irreparable—damage stitution, that will allow our Nation to have reviewed his extensive legal that it will do to the Senate. move forward in a united way. record. We do have an extensive legal Mr. President, I suggest the absence We also recognize that the Senate record that I am going to comment of a quorum. must give an independent evaluation of about that went into my own process The PRESIDING OFFICER. The a Supreme Court Justice. This is not in determining whether I can support clerk will call the roll. because the President of your party The senior assistant legislative clerk nominated someone to the Supreme him. proceeded to call the roll. Court, whether you support or oppose; I came to the conclusion that I could Mr. SCHATZ. Mr. President, I ask it is the independent review process not support Judge Gorsuch to be an As- unanimous consent that the order for that each Senator undertakes to deter- sociate Justice on the Supreme Court the quorum call be rescinded. mine whether the nominee should get of the United States because he is not The PRESIDING OFFICER. Without our support. a mainstream candidate. I am con- objection, it is so ordered. So what I look at is someone who cerned that he would put corporate in- would be a mainstream jurist, who is terests before individual rights. The PRAYER sensitive to the civil rights of all strength of our Constitution is in the Pursuant to rule IV, paragraph 2, the Americans, who would understand the individual. Individual rights should be hour of 12 noon having arrived, the importance of our Constitution, which paramount to special interests or cor- Senate having been in continuous ses- has been a Constitution that has ex- porate interests. sion since yesterday, the Senate will panded rights and not one that we I saw in his legal opinions a hostility suspend for a prayer from the Senate would look at ways to move in the toward environmental interests, wom- Chaplain. wrong direction on extending constitu- en’s health, marginalized students with The Chaplain, Dr. Barry C. Black, of- tional protections—that is, move back- disabilities, and other vulnerable types fered the following prayer: ward rather than forward. of individuals, that had me greatly Let us pray. First, let me start by stating that I concerned. God of the Heavens, who guides am troubled by the process President I was particularly concerned about through the boundless skies the certain Trump followed in nominating Neil whether he could separate his political flight of water fowl, we need Your guid- Gorsuch to the Supreme Court. During views from his legal views. This is an ance in our legislative branch today. his campaign, he talked about a litmus extremely important point. We want Give our lawmakers the wisdom to do test for Supreme Court Justices, that our Justices on the Supreme Court not what is right. May they not put party they must be pro-life in the mold of to be influenced by the politics around before country or partisanship before Justice Scalia. The list that was sub- us.

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But which we thought were only for indi- been settled and the parties had not the Supreme Court—the Justices on viduals. asked to have the case retried. the Supreme Court need to leave their In the Riddle case, Judge Gorsuch an- We talk about activism and that we political views outside of their respon- nounced a strict scrutiny standard to do not want to see activist judges. To sibilities. I was deeply troubled, after political contribution limits that quite me, that demonstrates that Judge reading the opinions of Judge Gorsuch frankly would make the Citizens Gorsuch, indeed, will be an activist and his writings, that he would not be United case even worse and would gut judge in his trying to move a par- able to separate his political views campaign finance law limits. I think ticular political agenda. from his legal views. each of us should be concerned about In Endrew F. v. Douglas County I was concerned about whether he that decision. School District, which is a case that would truly be an independent check Let me move on to the Trans- came in during the confirmation hear- on the Presidency. We know that Presi- American Trucking case. Here, Judge ing process, we had a severely autistic dent Trump is testing the constitu- Gorsuch was in dissent. He was in the child, and Judge Gorsuch was respon- tional reach of his office. We have seen minority. What he basically said was sible for the absurd reading of the de that in some of the Executive orders he that a truckdriver had to sacrifice his minimis benefit of defending against has issued. And I have little confidence life in order to protect his job; other- private placement. The Supreme Court by his responses at the hearings that wise, he could be fired. What I mean by rightly rejected that logic on an 8-to-0 Judge Gorsuch would be an inde- that, as I think many of our colleagues decision. pendent voice toward the President of know, but let me say to those who Justice Roberts wrote the opinion the United States. might not be totally familiar, the about the IDEA law in that there are Let me cite some examples to fill in truckdriver found himself abandoned protections for disabled students in our the blanks on what I am saying. Judge because the brakes of his trailer were school system. Judge Gorsuch would Gorsuch challenges the Chevron def- frozen in subzero temperatures. He con- turn back the progress that we have erence doctrine. In the Gutierrez case, tacted his dispatcher for help and after made on civil rights and on constitu- he indicates that judges rather than several hours recognized that his life tional protection. agencies should be basically admin- was in danger because of hypothermia. As I mentioned earlier, I am very istering our laws. The longstanding He did not have adequate heat in his concerned about whether Judge deference to agencies to interpret our cab. Gorsuch can keep his political views law has allowed agencies to carry out He had one of three choices. He could separate from what he says—how he their mission. Without that authority, try to maneuver the cab and the trailer acts as a potential Justice on the Su- it is extremely challenging to see how with frozen brakes, maybe costing him- preme Court of the United States. I go an agency can carry out the missions self his life or the lives of other people to a 2005 National Review article in of laws we have passed. Judge Gorsuch on the road; he could remain as he was which he wrote: raises questions as to whether that instructed by the dispatcher and per- American liberals have become addicted to document is still relevant. haps freeze to death; or he could do the courtroom, relying on judges and law- Let me make it clear. Who benefits what I think any reasonable person yers rather than elected leaders and the bal- from the Chevron doctrine? The Chev- would do: He disconnected the cab, lot box as the primary means of effecting ron doctrine has allowed agencies to took care of making sure he was safe, their social agenda. . . . This overweening protect workers’ rights, protect our en- warmed himself up, and returned to the addiction to the courtroom as the place to vironment, protect consumers, food trailer in order to complete the mis- debate social policy is bad for the country safety, and the list goes on and on. sion. For that, he was fired, and Judge and bad for the judiciary. Each of our States has examples to Gorsuch said that was acceptable. That I mention that particular case and show how important the Chevron doc- is an extreme opinion and one that quote Judge Gorsuch because we do not trine has been. In my State of Mary- gives us great pause as to how Judge want a judge to side with either being land, the Chesapeake Bay is critically Gorsuch will act on the Supreme Court a liberal or a conservative. We do not important to Maryland’s economy, of the United States. want a judge to say: I have a responsi- critically important to the character of Let me talk about NLRB v. Commu- bility to promote an agenda as a judge. our State we have in Maryland and our nity Health Services, wherein Judge We do not want a judge to be able to future. The protection of the public Gorsuch was again in the dissent. It take a political view and take that health of the Chesapeake Bay has very had to do with backpay for workers. In onto the bench. Whether it is a person much been advanced by the Chevron this opinion, he showed real hostility whom we agree with politically or dis- deference doctrine. to workers and unions—something that agree with politically, we want to have Judge Gorsuch wrote: ‘‘Chevron ap- had me greatly concerned. an independent judiciary. This Na- pears to qualify as a violation of the Another case that received a great tional Review article causes me grave separation of powers.’’ Then he argued deal of publicity in this body was concern as to whether Judge Gorsuch that its ‘‘primary rationale is no more Hobby Lobby. I raise it here for one can, in fact, be that neutral person on than a fiction.’’ Looking at what he principal reason. What the Court was the Court. has said about a fundamental docu- saying and Judge Gorsuch was agreeing Judge Gorsuch appears to be an ac- ment that is there to protect our envi- with was that the religious protection tivist judge and will become an activist ronment, protect workers, protect pub- that is provided under the Constitu- judge and will turn back progress to lic health, versus what Justice Scalia tion—that it is more important for a protect individual constitutional once explained—and I quote from Jus- company to be able to exercise that re- rights. That is something that gives tice Scalia: ‘‘In the long run, Chevron ligious freedom than the employees. me grave concern. It is the reason I will endure and be given its full scope, Once again, one of my principal con- cannot support this nominee to be an because it more accurately reflects the cerns is whether Judge Gorsuch will Associate Justice of the U.S. Supreme reality of government and thus more protect the rights of individuals or Court. adequately serves its needs.’’ In the whether he will side on behalf of busi- Let me turn to process for one mo- Gutierrez case, Judge Gorsuch was ness. Clearly, in the Hobby Lobby case, ment, because it looks as though, showing a more activist conservative he decided on business, to the det- sometime tomorrow, we are going to be agenda than Justice Scalia. riment of women’s rights, the LGBT called upon to vote on a cloture mo- Let me move on to Citizens United. community, and others. tion. I want to comment on that if I We have talked about Citizens United In the Planned Parenthood Associa- might. probably more than any Supreme tion of Utah case, he showed a direct As I said earlier, to me, Judge Court case on the Senate floor. We hostility to Planned Parenthood. Quite Gorsuch is not mainstream. He will put

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In February 2016, after Justice Now Republicans want us to confirm For all of those reasons, it seems ap- Scalia’s death, a nominee was sub- a judge who says that corporations propriate to me that this is why we mitted to us by President Obama who have religious rights. Judge Gorsuch have a 60-vote threshold—to make sure was acknowledged to be mainstream, was a part of the Hobby Lobby decision that we do not take extreme nominees acknowledged to be well qualified, ac- that went before the Supreme Court, in and allow them to be confirmed by a knowledged to be a consensus nominee, which the Tenth Circuit decided that partisan vote. We want to have a and he got the ultimate filibuster. corporate personhood extends to First broader consensus, and Judge Gorsuch Most of the Republicans in the Senate Amendment religious rights, and be- did not earn that broader consensus. would not meet with him. He did not cause the corporation itself—not just There are additional considerations have a committee hearing or a com- the people who own it—has been grant- here, and this goes back a few years mittee vote, and he did not have a floor ed those rights by judges like Neil with the Republican leadership. What vote. That was the ultimate filibuster. Gorsuch, the rights of corporations they did to President Obama’s judicial It was wrong, particularly when we now usurp the health and the rights of nominations must be underscored be- know that he would have received 60 American citizens. That is the problem cause this is not in a vacuum. We did votes. with Judge Gorsuch’s worldview. not get to this place in a vacuum from So you cannot compare Judge It is not just that he is a conserv- what has happened already but in our Gorsuch with Judge Garland because, ative; it is that he actually thinks that going back to President Obama when unlike Judge Garland, Judge Gorsuch corporate entities have the very same his district court nominees were de- does not share the same evaluation of rights as American citizens—rights, by layed—in some cases, totally blocked— being able to be a consensus, main- the way, that do not come with the and required a record number of clo- stream candidate who would receive a same responsibilities that we all have ture motions to have been filed and 60-vote threshold. as American citizens. Yet this judge acted upon—a record number. We had, For all of these reasons, if the major- wants to confer more rights onto cor- as I understand, more clotures and ity leader is going to pursue the clo- porations when we are already past the more filibusters of President Obama’s ture vote on the Gorsuch nomination, I tipping point as a society when cor- nominees by Republicans than we did will not vote in favor of cloture. I porations have more power than peo- in the entire history of the U.S. Sen- would hope that we would be able to re- ple. ate. turn to the comity that is important in We are in the absurd position of ask- There has been a direct effort by the the U.S. Senate, but we recognize there ing: How far are these corporate rights Republican leadership to filibuster ju- are times in which you should have a going to extend? They have been given dicial nominees. That is wrong. It 60-vote threshold. When the President First Amendment rights. They have should not have been done. Yes, there of the United States goes outside of the been given Fourth Amendment rights. are reasons for some but not for the norms and the process has already been Do they get the right to vote next? Do record numbers that were done. You employed by the Republicans, I urge they get the right to keep and bear should be able to allow for the comity. my colleagues to rethink the course arms? How many more constitutional Quite frankly, in 2013, the Republican that we are on. rights are we going to give to corpora- leader told President Obama: No more I yield the floor. tions before we say that enough is DC Circuit Court judges. Let me repeat The PRESIDING OFFICER. The Sen- enough? We are already well beyond that. In 2013—this was the first year of ator from Hawaii. the point at which corporate interests the President’s term—the Republican Mr. SCHATZ. Madam President, beat out the individual, whether it is leader said: No more DC Circuit Court when our country was founded, cor- at the polls or in the workplace. judges. We had 3 vacancies in the DC porations were on the minds of no one. There are a lot of other things about Circuit Court; 8 of the 11 had been They are not mentioned in the Con- Judge Gorsuch’s worldview that I ob- filled, and 3 were vacant, and it had stitution or the Bill of Rights, and ject to, but, at my core, I think I might nothing to do with the nominees. They when the topic finally came up to the be able to get around some of those just said that they were not going to Supreme Court, Chief Justice John things in knowing that the Constitu- consider any of them, and they used a Marshall called corporations a ‘‘mere tion requires the Senate to advise and filibuster to block any filling of these creature of the law.’’ consent, not agree with. Yet his positions. People have certain unalienable worldview regarding corporations as First, I quote from Chief Judge rights. Corporations do not. We estab- people embodies everything that is Henry Edwards when he talked about lished corporate personhood so that going wrong with our country and with the DC Circuit: companies could raise capital and the Court. By the way, it is probably The review of a large, multi-party, dif- enter into contracts, but nobody ever fair to say that almost every nominee ficult administrative appeal is the stable ju- thought that this term that was used— dicial work of the DC Circuit. This long dis- whom we have seen this year embodies tinguishes the work of the DC Circuit from ‘‘personhood’’—actually meant that this worldview. the work of other circuits. It also explains corporations were people. They are not. Time and again, Democrats in the why it is impossible to compare the work of It is not complicated. Corporations do Senate have raised the alarm about the DC Circuit with other circuits by simply not eat. They do not sleep. They do not this administration’s nominees, and we referring to the raw data of case filings. worry about their children or their el- have been overruled. What is the re- Chief Justice Roberts noted that derly parents. They do not get sick. sult? You have Cabinet Secretaries de- about two-thirds of the cases before the They do not retire, and they do not stroying American diplomacy. You DC Circuit involve the Federal Govern- have complex motivations. In fact, have Secretaries trying to ban Muslims ment in some civil capacity. That fig- under the law, they have only one mo- from entering the United States. You ure is less than 25 percent nationwide. tivation, which is to maximize profits. have an EPA Administrator, Scott He also described the DC Circuit’s Any logical person knows that cor- Pruitt, leaving a dangerous product on unique character as a court with the porations are not people, but in Judge the market that has been proven by his special responsibility to review legal Gorsuch’s America, they are. own scientists to hurt children. Why? challenges of the conduct of the na- There is no doubt that he is a very Because they prioritize corporate tional government. smart person, but he, actually, had a rights over people’s rights. My point is clear. This is the second hand in creating this theory that cor- The problem is this: Cabinet Secre- most important court in our land, and porations have the same rights as taries come and go; Supreme Court

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.199 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2312 CONGRESSIONAL RECORD — SENATE April 5, 2017 Justices do not. Let me put it this way: licans will think it is 80/20 on the other even a hearing on President Obama’s This administration’s Cabinet is like a side. The general public may think it is nominee, Judge Merrick Garland. date. It is a really bad date, but at 60/40 or 50/50. I am not sure that mat- As we now consider President least it comes to an end. A Supreme ters anymore. The question of who is Trump’s nominee, Judge Neil Gorsuch, Court Justice on the other hand is not at fault is not the most important we cannot ignore or forget this a bad date; it is a marriage. It is a life- question. The question is, What do we hyperpartisan action. We also cannot time appointment that will have an do next? Will the Senate undermine its ignore how President Trump came to impact on generations of Americans. own authority and strengthen the nominate Judge Gorsuch. President The fact that he is out of the main- power of partisanship? Trump went to two of the most par- stream is absolutely essential for us to I would say this to my Republican tisan, conservative organizations he consider. The fact that he thinks cor- colleagues: Think about what you are could find—the Koch brothers-sup- porations are people is, in my mind, going to do next. Think about what ported Heritage Foundation and the disqualifying—so disqualifying that I this is going to mean the next time you rightwing Federalist Society—and said will vote no on cloture, and I will vote are in the minority party, because it to them: Who do you want on the Su- no on final confirmation if it comes to will not be Senators DUCKWORTH and preme Court? They compiled their that, which brings me to the question CORTEZ MASTO who can’t even get a dream team of 21 ultraconservative of cloture. meeting with a Supreme Court nomi- candidates. President Trump looked at When the Senate votes on cloture, nee, it will be you. the names on that list and asked him- the question before the Senate is, Is it This is about the future of the Senate self which judge could pass the right- the sense of the Senate that debate and the Supreme Court. The nuclear wing litmus tests he had articulated should be brought to a close? option will mean nominees for the Su- during the campaign. His choice was For the Supreme Court nominee, we preme Court will not have to meet with Judge Neil Gorsuch. have rules, and those rules say that or consider minority opinions. It will On the campaign trail, Candidate you need 60 Senators to end debate— mean that the Senate’s habit of being Donald Trump made clear that he was not 59, not 51, not 57. There are 59 Sen- slow—sometimes maddeningly so, but pro-life and would appoint pro-life ators who do not get to decide when to we know it is in the best interests of judges to the Supreme Court. In one end debate; 60 do. If you cannot get 60 the country—will go away for this ap- interview, he was asked about his pro- votes to end debate, you do not have pointment. That tradition allows the life position as follows: cloture. center to hold, and it will be under- So, how important is that issue to you After 2013, there is only one posi- mined. now? When President Trump picks Supreme tion—one appointed position that re- To my Republican colleagues, I am Court justices, would there be a litmus test? tains that 60-vote threshold, and that not asking you not to do this. I am Trump responded: is the U.S. Supreme Court. That is for asking you to take your time. In the It is. It is. a very straightforward reason. It is world’s greatest deliberative body, During the second Presidential de- that we have decided as a body that the there is no reason to rush this decision. bate, Candidate Trump doubled down Supreme Court needs to have bipar- I am asking you to wait. I am asking on this issue. He was asked specifically tisan support; that if a person cannot you to take a few weeks before you de- about Roe v. Wade, the longstanding get 60 votes, you change the nominee, cide to change the Senate forever. Supreme Court precedent establishing you do not change the rules. Take your time. This is probably one of a woman’s right to choose. The ques- We have decided that this position— the most consequential decisions you tion to Candidate Trump was ‘‘Do you this institution, the Court itself, the are going to make in the U.S. Senate want the court, including the justices highest Court in the land—should be because it is about the Senate itself. that you will name, to overturn Roe v. beyond our partisan disputes and dif- This is worth talking about. This is Wade?’’ ferences. That is the foundation of the worth deliberating over. It is worth Trump responded that he would ‘‘be U.S. Senate. It is the way this place thinking over. Go home. Talk to your appointing pro-life judges,’’ adding, works. Without this rule, the reality constituents. If you want to do this, ‘‘Well, if we put another two or perhaps will be grim. Without this rule, if you you can do this anytime you want. You three justices on . . . that will hap- are a Member of the minority party, can do this the Monday we get back pen,’’ meaning Roe v. Wade will be the President’s nominees don’t have to from our spring work period. For good- overturned. listen to you, meet with you, think ness’ sake, there is no reason not to We know from Donald Trump’s own about you. Without this rule, advice think about it for a little bit longer. words that he had a litmus test for Su- and consent is rendered meaningless All we need are three Members of the preme Court nominees on a woman’s for whichever party is out of power. Republican Party to go to their leader, right to choose. That litmus test is I have been here now 5 years, about publicly or privately, and say: We are that he will appoint only pro-life Jus- 41⁄2 years. Even in my short time here, not with you on nuclear yet; give us tices who are committed to over- the door swings both ways in Wash- some time to try to save this impor- turning Roe v. Wade. ington. Remember that today, this tant aspect of the Senate. Otherwise, What about a litmus test on guns? week, for the Republicans it might feel you will make both the Supreme Court During the Presidential campaign, satisfying to use power maximally, to and the world’s greatest deliberative Candidate Trump repeatedly empha- use the greatest authority possible body more extreme and more divided, sized his pro-gun views, which are in under the U.S. Constitution, but with- and I believe you will regret it. lockstep with the National Rifle Asso- out this rule, the Senate itself will be I yield the floor. ciation. He was asked about a litmus undermined by its own Members. I The PRESIDING OFFICER. The Sen- test for the Second Amendment—spe- have never seen any legislative body ator from Massachusetts. cifically, the precedent established in endeavor to diminish its own author- Mr. MARKEY. Madam President, I the 2008 Supreme Court case of District ity, and that is what is going to happen rise to speak in opposition to the nomi- of Columbia v. Heller. In Heller, the this week. nation of Judge Neil Gorsuch to serve Justices ruled 5 to 4 that a common- We can argue about how we got here. as an Associate Justice of the U.S. Su- sense Washington, DC, law banning Was it in 1987 when the Senate rejected preme Court. handguns and requiring other firearms Robert Bork? Was it in 2013 when Lead- Let me begin by making clear my to be stored unloaded or locked vio- er Reid responded to historic obstruc- view that the vacancy on the Supreme lated the Second Amendment. tionism by eliminating most filibusters Court created by the death of Justice Candidate Trump was asked: ‘‘Will on nominees? Was it last year when Antonin Scalia was President Obama’s you make upholding the Heller deci- Merrick Garland was not even given a to fill. In an act of unprecedented ob- sion a litmus test in Supreme Court hearing? We all have our talking structionism that makes a filibuster nominees?’’ points. At the end of the day, both pale in comparison, Senate Repub- Trump answered: ‘‘Yes, I would.’’ sides own some of this mess. I am a licans broke with longstanding Senate The followup question: ‘‘So you won’t Democrat. I think it is 80/20. Repub- tradition and refused to hold a vote or nominate somebody to the Supreme

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Association’s agenda and its unreason- We do know that Judge Gorsuch au- We also know that Judge Gorsuch able and dangerously broad view of the thored the Hobby Lobby decision in has consistently ruled against employ- Second Amendment. which he ruled that corporations are ees in cases involving claims of unsafe From that list of 21 names provided people whose religious beliefs are more workplaces and sex discrimination, and to him by the Heritage Foundation and important than the reproductive rights he has repeatedly sided with insurance the Federalist Society, President and health of women. companies that sought to deny dis- Trump chose Judge Neil Gorsuch, ap- We do know that Judge Gorsuch has ability benefits to employees. parently convinced that he was the questioned the judicial doctrine of Here is something else we know. If man who would pass these litmus tests. what is known as Chevron deference. the first 75 days of the Trump adminis- The Senate Judiciary Committee’s That is the rule from the Supreme tration are a preview of coming attrac- hearings on Judge Gorsuch were an op- Court case of Chevron v. The Natural tions, one thing could not be more portunity for him to dispel doubts Resources Defense Council under which clear: The U.S. Supreme Court’s rule about his independence that President judges must generally defer to expert defending the Constitution will be test- Trump’s selection process had raised. administrative agency interpretations ed as never before: conflicts of interest, Unfortunately, Judge Gorsuch did of laws they are charged with admin- emoluments, Muslim bans, rescinding nothing to address these concerns. In istering. In a speech last year, Judge LGBTQ protections. The list of con- fact, his appearance before the Judici- Gorsuch attacked the modern adminis- stitutional rights the Trump adminis- ary Committee raised more questions trative state that has developed under tration is violating gets longer every than it answered because Judge Chevron, saying that it ‘‘poses a grave single day. Gorsuch was positively sphinx-like be- threat to our values of personal lib- Now more than ever, we need a Su- fore the Senators questioning him. erty.’’ preme Court Justice who is inde- For example, when repeatedly asked What Judge Gorsuch is saying is not pendent and not beholden to ideology. about something as elementary as his some abstract legal theorizing; he is Now more than ever, we need a Justice judicial philosophy, Judge Gorsuch re- attacking the fundamental rules that who will stand up for the rights of all fused to answer. He declined to say protect the health, safety, and welfare Americans against big corporate inter- whether he agreed with the Roe v. of all Americans that are put in place ests. A Justice who would be to the Wade decision, the District of Colum- by agencies like the Environmental right of Antonin Scalia on the issue of bia v. Heller decision, or other con- Protection Agency, the Food and Drug Chevron deference is not a mainstream troversial decisions, such as Citizens Administration, and the Securities and Justice. A Justice who would be to the United, which opened the floodgates to Exchange Commission. In the decades right of Samuel Alito and Clarence unrestricted, secret money in electoral since Chevron was decided, it has been Thomas by a substantial margin—as campaigns, or even the decision in instrumental in courts upholding these professors from Michigan State Univer- Bush v. Gore, which decided the 2000 agency rules that ensure that our air sity and the University of Wisconsin Presidential election. and drinking water are clean; rules concluded after examining Judge Judge Gorsuch also refused to re- that ensure that drugs and medicines Gorsuch’s opinions on the Tenth Cir- spond whether he agreed with other are safe and effective; rules that ensure cuit, and the Supreme Court’s deci- Supreme Court precedents on the right that our automobiles, workplaces, sions reviewing them—is not someone to privacy, the right to counsel in food, medicine, and children’s toys are within the mainstream of American ju- criminal proceedings, voting rights, or not dangerous; and rules that ensure risprudence. same-sex marriage. Contrast that to our financial markets are fair and offer Everything we have seen so far—from Justice Sonia Sotomayor, who during investors a level playing field. Donald Trump’s judicial litmus tests, her confirmation hearing explained Even Justice Scalia supported Chev- to the visible hand of rightwing inter- that she fully understood the indi- ron deference. But Judge Gorsuch has est groups in the selection process, to vidual right to bear arms that the Su- signaled that he would overturn it and Judge Gorsuch’s reticence before the preme Court recognized in the Heller instead allow pro-corporate judges to Judiciary Committee, to his pro-cor- decision. Contrast that with Justice substitute their policy views for those porate bias in cases he has decided— Anthony Kennedy, who during his of the agency experts. If threatening leads me to the conclusion that he will hearing praised the Supreme Court’s the destruction of the regulations that be neither a Justice for all Americans, landmark 1963 decision in Gideon v. protect the health, safety, and welfare nor one on whom we can count to stand Wainwright, which established the of Americans sounds familiar, it up to President Trump. right to counsel in criminal cases. should. It is straight out of the alt- We cannot let Judge Neil Gorsuch be- Even contrast Judge Gorsuch with right, Steve Bannon playbook. And it come the crucial ninth vote on the Su- Chief Justice John Roberts, who at his is a fringe position that is not worthy preme Court. One Justice matters. The hearing affirmed that privacy is part of of representation on our Nation’s high- list of recent 5-to-4 decisions coming the liberty interest protected by the est Court. out of the Supreme Court shows that due process clause. Instead, at his hear- We also know that the Supreme one judge’s vote can forever alter his- ing, Judge Gorsuch repeatedly parroted Court just rejected Judge Gorsuch’s tory. Just remember that Bush v. Gore, that critical Supreme Court decisions harsh reasoning in a disabilities rights Citizens United, District of Columbia v. were precedents of the Court ‘‘that he case. A few years ago, Judge Gorsuch Heller, and the Affordable Care Act, would follow unless and until they are wrote an opinion for the Tenth Circuit were all decided by 5-to-4 votes. overturned.’’ He shed no light on what Court of Appeals in a case under the In- I will, therefore, oppose Judge he felt about those precedents or dividuals with Disabilities Education Gorsuch’s nomination to the Supreme whether he would be inclined or dis- Act. That opinion held that schools Court and support the filibuster, and I inclined to vote to overturn them. across the country must provide edu- urge my colleagues to do so, as well. If Only after considerable prodding did cational benefits to students with dis- Judge Gorsuch cannot muster 60 votes, Judge Gorsuch eventually agree that abilities that must be ‘‘merely more the problem is not with the process, it the decision in Brown v. Board of Edu- than de minimis.’’ But just last week, is with the nominee. If Judge Gorsuch cation, which did away with the doc- in an IDEA case, all eight Supreme cannot get to the 60 votes historically trine of separate but equal and deseg- Court Justices disagreed with Judge required for confirmation to the Na- regated schools across our Nation, was Gorsuch. Chief Justice Roberts wrote tion’s highest Court, I urge President correct. Having to pry out of Judge that the IDEA—the Individuals with Trump to withdraw his nomination and

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.202 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2314 CONGRESSIONAL RECORD — SENATE April 5, 2017 consult with a wide range of Senators— wouldn’t get a floor vote. He got noth- held religious beliefs were, in fact, in legal scholars and others who past ing he was entitled to as a sitting judge conflict with the statute, and they Presidents have sought out before on the DC Circuit. Also, the Senate could get relief from the statute for making a Supreme Court nomination— didn’t exercise the advice and consent doing that. Judge Gorsuch joined the and put before us someone in the mold function that is part of our constitu- ruling, which was later affirmed by the of Merrick Garland, who can enjoy bi- tional job description. Supreme Court. partisan support and be within the Let’s talk about Judge Gorsuch’s What interested me about Judge broad mainstream of American juris- record. Many of my colleagues have Gorsuch in the case was that he chose prudential history. been speaking for hours. I want to to write a concurring opinion. Most Otherwise, the consequences of forc- focus on one aspect of his record. Judge folks know what they are. If you are ing Judge Gorsuch’s nomination Gorsuch was promoted by President not a lawyer—when a panel writes an through will fall squarely on the shoul- Trump as not an activist. And Judge opinion, there is a majority opinion ders of President Trump and his Repub- Gorsuch has written with scorn about that is the ruling in the case. If a judge lican allies in the Senate, if they de- activist judges, saying that judges who feels that it is wrong, a judge will write cide to exercise the nuclear option, for- impose their moral or social pref- a dissenting opinion saying: No, you ever changing the history of the United erences on others can’t square their po- are wrong, and here is why. You are States Senate. sition with the Constitution. He even dutybound, if you think the majority is I urge a ‘‘no’’ vote on Judge Gorsuch. scorned activists in courts, saying that wrong, to write a dissent. I yield back to the Chair. liberals are addicted to the courtroom, A concurring opinion is about as vol- The PRESIDING OFFICER. The Sen- as if somehow bringing constitutional untary as it gets. A concurring opinion ator from Virginia. claims in courts is wrong. is: I agree with the outcome, but I have Mr. KAINE. Madam President, I also So I think it is fair to look at Judge a point I want to make. I can’t con- rise to discuss the Supreme Court nom- Gorsuch by his own standard. Is he an vince the rest of the majority to go ination of Judge Neil Gorsuch of the activist or not? The best definition of a along with me, and I want to make this Tenth Circuit. I take this very seri- nonactivist judge was the definition point. So Judge Gorsuch wrote a concurring ously. given by Chief Justice Roberts during opinion that was incredibly revealing. I started my legal career as an appel- his confirmation hearing. He said: I am It was voluntary, and that shows you a late law clerk in the Eleventh Circuit an umpire. I have no platform. I have little about a person’s philosophy. It Court of Appeals in the South, working no agenda. I call balls and strikes with- was incredibly revealing for two rea- for a spectacular jurist, Judge R. La- out fear of any party, without favor to sons. First, Judge Gorsuch had already nier Anderson III. He taught me about any party. I am an umpire. joined the majority opinion to say that what it was to be an appellate judge: I looked at Judge Gorsuch’s record the employer, Hobby Lobby, could humility, not making a case a personal and talked about a set of cases that de- challenge the employer mandate of the cause, and careful application of the termine whether that is, in fact, true. ACA. He had already joined that, but law. And I have concluded that Judge he stretched beyond to rule that, in ad- I then went on to practice law in the Gorsuch is definitely an activist. He dition, the individuals owning the com- State and Federal courts, the trial and may not be an activist on everything. I pany should be able to sue to challenge appeal courts, including the U.S. Su- don’t think you have to be an activist the employer mandate, even though preme Court as a civil rights lawyer for on everything to be an activist, but I they weren’t the employer. 17 years. When I was the Governor of do believe he is an activist. It shows The ACA mandate applied only to the Virginia, I twice had to appoint mem- through in no area clearer than it employer of the female employees. The bers of the Virginia Supreme Court and shows through in cases dealing with employer was Hobby Lobby. But even grappled with qualifications to serve women’s ability to make their own de- though the mandate didn’t even apply on an appellate bench. cisions about their own healthcare, es- to the Green family who owned the Maybe most especially, my wife was pecially reproductive health. company, Judge Gorsuch said that a judge. So with a judge in the house— There is a famous 2013 case that has they should be able to challenge the she was a judge for 8 years—I spent a been much discussed during these dis- ACA anyway. lot of time also thinking about the cussions and in committee—Hobby I practiced law for a long time. There characteristics of a good judge. Judge Lobby v. Burwell. It was a challenge is a complete separation—there is sup- Gorsuch has some strong characteris- brought up in the Tenth Circuit, where posed to be—between individuals and tics, educational background, and pro- Judge Gorsuch now sits. The legal an incorporated company. You can run fessional experience. These are charac- question before the circuit court was a business and not incorporate it, and teristics that are worthy of respect. pretty straightforward. Under a con- in that case, there is no separation. But I have decided that there is an ad- gressional act designed to protect reli- But as soon as you incorporate it, you ditional characteristic that is very im- gious liberty—the Religious Freedom get all kinds of protections, especially portant—judicial philosophy. Restoration Act—a company claimed that you can protect your own personal And as I have looked at Judge that its religious views conflicted with assets from liability for corporate ac- Gorsuch’s judicial philosophy, I have the contraception mandate of the Af- tions. The Green family had done that. concluded that I cannot support him. I fordable Care Act. And, if so, could But Judge Gorsuch said: Even though have read scores of his opinions. I met they gain protection for their own posi- you voluntarily separated yourself with him in my office. I am so proud of tion? from the company and even though the my colleagues—Democrat and Repub- It was sort of a controversial case be- mandate doesn’t apply to you, you lican—because in 2 months, Judge cause the notion that a company could should be able to file a lawsuit to chal- Gorsuch has enjoyed something that assert religious views was sort of a lenge the mandate. I found that to be Merrick Garland didn’t get in 10 novel theory at the time. But, with highly unusual—a great stretch. I months. Judge Gorsuch has had meet- Judge Gorsuch as part of the majority, asked him about it when we talked. He ings with virtually all Senators. He has the majority in the Tenth Circuit ruled did not give me a satisfactory answer. had a Judiciary Committee hearing, a that, yes, a company could assert a Here was the thing about the Hobby Judiciary Committee vote. He is get- claim based on sincerely held religious Lobby case that was more notable. It ting floor debate, and he will get a beliefs under the RFR statute. And was the way Judge Gorsuch described floor vote. Those are the five things he they could assert that their beliefs con- what the case was about. The majority is entitled to, and he is getting all of flicted with the ACA’s contraception opinion in the Tenth Circuit and the them. mandate. majority opinion in the Supreme Court Judge Merrick Garland was nomi- Then, in 2014, that ruling was upheld described the case the same way. They nated. Republicans wouldn’t meet with by the U.S. Supreme Court—a con- basically said that the owners of this him. They wouldn’t hold a hearing. troversial decision, but the majority company claimed that the contracep- They wouldn’t do a committee vote. agreed with the position that, yes, a tion mandate was contrary to their re- They wouldn’t do a floor debate, and he company could assert that its sincerely ligious views. That is what the case

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.203 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2315 was about. The clash was between the same thing. It is highly rare. The fact report to try to find some straw, to owners’ religious beliefs and the stat- that Judge Gorsuch would do it in two grasp at some straw with which to dis- ute. That is what the case was about. cases—both of which involved women’s agree with his confirmation is pretty But Judge Gorsuch described the case health access—is important. striking to me. completely differently. Here are his Finally, in his confirmation hearing, But last night we saw the latest act words: Judge Gorsuch was asked directly of desperation to try to justify the un- All of us face the problem of complicity. whether he agreed with the decision in precedented partisan filibuster of All must answer . . . to what degree we are Griswold v. Connecticut, the 1965 deci- Judge Gorsuch. For example, it was re- willing to be involved in the wrongdoing of sion that said married couples could ported that a handful of lines in a 2006 others. not be criminalized for using contra- book were borrowed from other He didn’t describe it as a clash be- ception. sources. Well, the timing of this says it tween the owners and the statute. He He said it was a precedent worthy of all. This book has been published for 10 described it as a case about whether respect like all precedents, but he years. The only reason for this allega- you are willing to be complicit in the would not agree—he would not say he tion is a last-minute attempt to try to wrongdoing of others. That wasn’t the agreed with the case. Chief Justice make something, really anything stick legal issue at all. In the Gorsuch con- Roberts, during his confirmation, said to tarnish the character of someone curring opinion in Hobby Lobby, what he agreed with the case. Justice Thom- who will soon serve on the Supreme does that phrase mean—‘‘the wrong- as said: I have no quarrel with Gris- Court. doing of others’’? Who are the others wold. Justice Alito said he agreed with This kind of baseless attack is not he is talking about? He is talking the case. But Judge Gorsuch would not. only disingenuous, it is transparent about female employees of Hobby Griswold v. Connecticut has been and it has absolutely no merit. Even Lobby, who wish to make their own used repeatedly in the last 50 years to the author of the main article alleg- choice from among available and law- basically create a body of constitu- edly plagiarized has rejected that char- ful methods of contraception. Those tional precedent that says the relation- acterization. So this is the person who are the others he is referring to. ships of people—romantic, inmate rela- wrote the article who Judge Gorsuch He is also referring to that choice as tionships—should be free from the in- was claimed to have plagiarized, in es- ‘‘wrongdoing.’’ That is a completely trusion of Big Government. You can’t sence. Well, the author of the main ar- editorial comment that is not drawn criminalize somebody because of their ticle rejected the characterization of from what a lawyer said or what a relationship. I think somebody who is plagiarization. She said that under the plaintiff said. That is his own charac- not willing to commit to that principle circumstances, it would have been terization of the case, and it is com- is somebody who has not earned my awkward and difficult for Judge pletely irrelevant and, I would argue, vote. Gorsuch to have used different lan- insulting. It is a completely irrelevant With that, I yield the floor. Again, I guage. and insulting reference to something thank my friend from Texas. Other academic experts have also re- that was not part of the case at all, ex- The PRESIDING OFFICER (Mr. jected the claim and made clear that cept Judge Gorsuch decided to inject it YOUNG). The majority whip. the preferred methodology for facts is into the case. Mr. CORNYN. Mr. President, Mem- to cite original sources, which is ex- Somebody who looks at women mak- bers of the Senate have been coming to actly what Judge Gorsuch did. Talk ing their own choice of contraception the floor talking about the important about an eleventh-hour baseless at- as the ‘‘wrongdoing of others’’—that is vote we will be casting tomorrow and tack. very telling. then again on Friday which will result The bottom line is this: Instead of The PRESIDING OFFICER. The time in the confirmation of Judge Neil evaluating the judge based on his for the Democrats has expired. Gorsuch as the next Associate Justice qualifications, the sterling reputation The majority whip. of the Supreme Court. he has among people across the polit- Mr. CORNYN. Madam President, if Having served on the Senate Judici- ical spectrum, our friends across the my friend the Senator from Virginia ary Committee since I first came to the aisle are determined to attempt the needs a minute or two to wrap up, I Senate, it has been my honor to par- first successful partisan filibuster of a know it caught him midthought. I am ticipate in the confirmation hearings Supreme Court nominee. That is dis- happy to yield to him for that purpose. in the committee on now five Supreme appointing, but it is also destined for Mr. KAINE. I would appreciate it. I Court Justices, Judge Gorsuch being failure. will take 2 minutes and finish quickly. the latest. Yesterday, I pointed out how we ac- The PRESIDING OFFICER. The Sen- What I have been struck by when it tually got here. Back during President ator from Virginia. comes to Judge Gorsuch is how much George W. Bush’s first term, Senator Mr. KAINE. I thank my friend, the our friends across the aisle—who cast a SCHUMER and others laid the ground- deputy majority leader, the senior Sen- party-line vote in the Judiciary Com- work and then executed a strategy for ator from Texas. mittee against the judge on his con- unprecedented obstruction of judicial I draw support for my conclusion firmation—how much they have been nominees. That was in response to the about that language from two other struggling to come up with even one election of the last Republican Presi- cases that Judge Gorsuch was involved intellectually honest argument against dent. This is in response to the election in in the Tenth Circuit, one case deal- the nominee, in spite of his obvious and of a new Republican President. I think ing with contraception and one case tremendous qualifications and bipar- for him, following the election of the dealing with an effort to defund tisan support. current one, obstruction of a perfectly Planned Parenthood in Utah. For example, I heard our colleague qualified nominee to the Supreme In both cases, the Tenth Circuit from Virginia, my friend Senator Court is just the next step. It actually reached a decision that was pro-wom- KAINE, criticize a couple of decisions represents the ultimate escalation of en’s health, pro-women’s health access. that the judge made. What he left out this weaponization of the filibuster The parties were fine with the deci- is that Judge Gorsuch participated in used in judicial confirmations. sions. They were going back to the dis- 2,700 panel decisions on the Tenth Cir- As I have said before, based on the trict court and they did not apply to cuit Court of Appeals during his 10- merits of the nominee, the justifica- have the cases reheard en banc. But in year tenure there. Ninety-seven per- tions for opposing Judge Gorsuch are both those cases, Judge Gorsuch took cent of them were unanimous. As the paper thin. Our colleagues across the the highly unusual step of trying to get Presiding Officer knows, that means aisle unanimously supported Judge the appeals heard anyway, even though that each of the judges—three judges Gorsuch when he was confirmed to the the parties did not want to have them on the typical panel or in an en banc— Tenth Circuit Court of Appeals just 10 reheard. In my experience as an appel- basically that everyone agreed, wheth- years ago. He got everybody’s vote. It late advocate, that is virtually unheard er they were nominated by a Repub- was a voice vote. This was to the Tenth of. I have talked to litigators in the lican or Democrat. So this whole idea Circuit Court of Appeals, a lifetime Tenth Circuit, and they have said the of cherry-picking the judge’s judicial tenured position. All of them agreed he

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As a result, agen- Court? Well, it is not his track record to serve on the Supreme Court. He has cies have been able to broadly interpret as a judge, that is for sure. As I men- been praised and endorsed by members laws in a way that has allowed them to tioned, of the 2,700 cases he has partici- on both sides of the political spectrum, expand their regulatory authority far pated in, 97 percent were unanimous— the left and the right. beyond what Congress ever intended. 97 percent. As a judge on the Tenth Circuit Fortunately, U.S. judges are begin- One recent analysis put him in the Court of Appeals since 2006, after being ning to question the Chevron doctrine middle of the circuit ideologically unanimously confirmed by this body, and its impact on the separation of speaking, and for a decade he has done Judge Gorsuch has proven he is as powers doctrine relied on by our good, fair work as a judge on the Tenth mainstream as they come. In fact, of Founding Fathers and affirmed in the Circuit—really outstanding work, to be the 800-plus opinions that he has writ- U.S. Constitution. Judge Gorsuch is honest. That should tell you something ten for the Tenth Circuit, less than 2 one of those judges. Regarding Chev- about this judge and this man, but it percent, or 14 opinions, have drawn dis- ron, Judge Gorsuch has written that should also tell you something about sents from his colleagues. In other Chevron seems to be no less than a the opponents of this nominee, many of words, 98 percent of his opinions have judge-made doctrine for the abdication whom, like Barack Obama and Hillary been unanimous. That is even more re- of the judicial duty that prevents Clinton, as I mentioned, supported his markable when you look at the make- American courts from fulfilling their nomination just 10 years ago. The only up of the Tenth Circuit—12 of the constitutionally delegated duty—inter- thing that has changed, the only thing judges were appointed by Democratic preting what the law actually intends. that explains the radical shift of Demo- Presidents, while only 5 were appointed Careful judicial scrutiny and inter- crats in opposition to this good judge, by Republicans. It does not get much pretation of the law will allow courts is that now President Trump is in the more mainstream than that. to rein in agency actions that are in- White House. During his confirmation hearings consistent with the law and beyond the I honestly believe that every excuse last month, Judge Gorsuch again bounds of what Congress intended. they have come up with to engage in proved that he is eminently qualified In his concurrence in Gutierrez- this unprecedented filibuster is com- to serve on the bench of our Nation’s Brizuela v. Lynch, Gorsuch argues that pletely without merit. What they are highest Court. Let me share some of the Administrative Procedure Act really upset about is what happened on his quotes from his hearing: vests in the courts the responsibility to November 8. I don’t believe—if they ‘‘The Constitution doesn’t change. ‘‘interpret statutory provisions and won’t confirm Judge Gorsuch, they will The world around us changes.’’ overturn agency action inconsistent never vote to confirm any nominee of ‘‘I don’t believe in litmus tests for with those provisions’’ and questions this President, period. judges.’’ the idea that Congress ‘‘intended to What we are talking about and all we ‘‘If I’m confirmed, I will do all my delegate away its legislative power to are asking for is an up-or-down vote. If powers permit, to be a faithful servant executive agencies.’’ they want to vote against the nomina- to the Constitution and laws of this Judge Gorsuch takes his duty as a tion, that is their right, but, as every- great nation.’’ judge with the utmost seriousness. He body knows, to get to that, we first One last quote: seeks to interpret the law the way Con- have to get 60 votes to close off debate As a judge now for more than a decade, I’ve gress intended, not in the way an exec- and then get to the majority up-or- watched my colleagues spend long days wor- utive agency wants it to be. down vote. But they will not even rying over cases. Sometimes the answers we His careful and academic approach to reach aren’t the ones we personally prefer. allow us to move to a vote. judicial review is well-suited for our Sometimes the answers follow us home at Nation’s highest Court. I am confident I hope our Democratic friends who night and keep us up. But the answers we are obstructing will reconsider. I be- reach are always the ones we believe the law that Judge Gorsuch will respect and lieve there are four Democrats who are requires. And for all its imperfections, I be- enforce the constitutionally affirmed going to join all of the Republicans in lieve that the rule of law in this nation truly separation of powers doctrine that in voting to confirm this nominee, so he is a wonder. And that it’s no wonder that it’s recent years has been diluted by execu- will enjoy bipartisan support, as he the envy of the world. tive agencies broadly interpreting should. It is clear that Judge Gorsuch is laws, resulting in regulatory over- This judge is a faithful interpreter of qualified to serve on the Supreme reach. This has minimized the role of the law. He believes in an independent Court and that he understands the role Congress in the legislative process. As judiciary and enjoys support across the of a judge: to interpret the law, not to a result, the voices of American citi- ideological spectrum. He will be con- make the law. zens have also been minimized and re- firmed as the next Supreme Court jus- To that end, I would also like to placed with unelected Washington bu- tice, but it is up to our Democratic highlight Judge Gorsuch’s in-depth un- reaucrats who think they know what is friends to determine just how that oc- derstanding of the separation of powers best for all Americans. curs. doctrine, and I am optimistic that Judge Gorsuch is one of the finest I yield the floor. Judge Gorsuch will carefully scrutinize judges our Nation has to offer. The I suggest the absence of a quorum. cases and controversies that involve knowledge and careful deliberation he The PRESIDING OFFICER. The executive overreach. will bring to the Court will result in clerk will call the roll. The past 8 years have seen an unprec- rulings that reflect justice, fairness, The senior assistant legislative clerk edented expansion of the administra- and an interpretation of what the law proceeded to call the roll. tive state. This has come at the ex- is and what Congress intended it to be, Mr. ROUNDS. Mr. President, I ask pense of both the legislative branch, not what administrative agencies want unanimous consent that the order for whose purpose is to make laws, and the it to be. the quorum call be rescinded. judicial branch, whose purpose is to in- Despite impeccable credentials, we The PRESIDING OFFICER. Without terpret the law and decide on a specific are in a situation today because of a objection, it is so ordered. law’s constitutionality. But more con- precedent set in November 2013 by Mr. ROUNDS. Mr. President, I rise cerning than that, it has also come at then-Majority Leader Harry Reid and today to offer my strong support for the expense of American citizens. his conference. Former Leader Reid’s Judge Neil Gorsuch, President Trump’s Overreach by executive agencies has use of a so-called nuclear option in 2013 pick to replace Justice Scalia on the led to regulatory expansion that re- meant the Senate could reinterpret its Supreme Court. On Monday, his nomi- sults in the Federal Government in- rules via simple-majority vote. Former

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To challenge the ruling of the well within the mainstream. It is why to defeat a judicial nomination was for Chair, Reid only needed a majority he has gained the respect of prominent a Circuit Court judge, Miguel Estrada, vote to overturn the Presiding Officer’s attorneys on the right and on the left. who was nominated by President correct interpretation of the written Several of my Democratic colleagues George W. Bush to the U.S. Court of rule. In other words, Former Leader have made similar observations. Appeals for the DC Circuit. Reid broke the rules to change the Senator DONNELLY recently said that In our country’s history, the fili- rules and, by default, broke precedent he would support Judge Gorsuch’s buster has been invoked only to block to change the precedent moving for- nomination because ‘‘he is a qualified a Supreme Court nominee. It was in ward as well. jurist who will base his decisions on his 1968, and a threatened bipartisan fili- Based on this new precedent set by understanding of the law.’’ buster by Republicans and Democrats Former Leader Reid, the Senate is Similarly, Senator HEITKAMP indi- prevented Associate Justice Fortas likely to confirm Judge Gorsuch to the cated that she would vote to confirm from becoming Chief Justice of the Su- Supreme Court by a simple-majority Judge Gorsuch because ‘‘he has a preme Court. The nominee ended up vote. Because the Senate has always record as a balanced, meticulous, and withdrawing because of ethical con- operated on precedent, we will likely well-respected jurist who understands cerns. Two sitting members of the Su- follow this new precedent to approve the rule of law.’’ preme Court were confirmed by fewer Judge Gorsuch’s nomination later this My colleagues have it right. A Jus- than 60 votes on an up-or-down vote, week. tice should be a follower of the Con- but neither one was the subject of a fil- When he is confirmed, Judge Gorsuch stitution, not a trailblazer or an advo- ibuster. will make a tremendous addition to the cate. His or her role is to interpret and A filibuster of this nominee sets a Supreme Court. His lifetime of defend- uphold the laws, not to create them. dangerous precedent and undermines ing the Constitution and applying the Judge Gorsuch understands this. He the reputation of this institution. law as it was written provides clear takes it seriously. Judge Gorsuch will make an excellent evidence that he has the aptitude for In his confirmation hearing before Supreme Court Justice. The American this lifetime appointment to our Na- the Senate Judiciary Committee, people deserve to have him on the tion’s highest Court. Gorsuch emphasized the importance of Mr. President, I yield the floor. bench. I look forward to voting in sup- judicial precedent and a fair approach I suggest the absence of a quorum. port of Judge Gorsuch’s nomination to The PRESIDING OFFICER. The to the law. He said: ‘‘I come here with serve as our next Supreme Court clerk will call the roll. no agenda but one . . . to be as good Justice. And I urge my Senate col- The senior assistant legislative clerk and faithful a judge as I know how to leagues to do the same. proceeded to call the roll. be.’’ Similarly, in a private meeting in I yield the floor. Mrs. FISCHER. Mr. President, I ask my office, the judge promised to ‘‘fol- I suggest the absence of a quorum. unanimous consent that the order for low the law, wherever it may lead.’’ The PRESIDING OFFICER. The the quorum call be rescinded. Judge Gorsuch recognizes the pivotal clerk will call the roll. The PRESIDING OFFICER. Without but limited role that the Constitution The senior assistant legislative clerk objection, it is so ordered. allows judges to play in our Republic. proceeded to call the roll. Mrs. FISCHER. Mr. President, I rise During long days of testimony at his Mr. LEAHY. Mr. President, I ask today in support of the nomination of confirmation hearing, he made clear unanimous consent that the order for Judge Neil Gorsuch to be our next U.S. that while legislators answer to the the quorum call be rescinded. Supreme Court Justice. Article II, Sec- people, a judge answers only to the The PRESIDING OFFICER. Without tion 2 of the Constitution entrusts law. At the same time, Judge Gorsuch objection, it is so ordered. Members of the Senate with a responsi- said that he interprets his judicial oath Mr. LEAHY. Mr. President, I do not bility vital to our democracy: pro- as a promise to ‘‘make sure that every see anybody on the floor, but I under- viding advice and consent on the Presi- person, poor or rich, mighty or meek, stand that this time has been reserved dent’s Supreme Court nominees. gets equal protection of the law.’’ for the Republican side. The significance of this task cannot ‘‘Equality before the law’’ is Nebras- I suggest the absence of a quorum. be overstated, and it is one that I take ka’s State motto. It represents the The PRESIDING OFFICER. The very seriously. Days after President commitment Nebraskans made 150 clerk will call the roll. Trump nominated Judge Gorsuch to years ago when we entered the Union. The senior assistant legislative clerk fill the late Justice Scalia’s seat on the That principle remains strong today. It proceeded to call the roll. Supreme Court, I shared the qualities should be a cornerstone of judicial phi- Mr. HOEVEN. Mr. President, I ask that I wanted to see in a Justice. They losophy for any nominee to our Na- unanimous consent that the order for included a strong commitment to the tion’s highest Court. It is why the the quorum call be rescinded. rule of law, first-rate credentials, and a words ‘‘Equal Justice Under Law’’ are The PRESIDING OFFICER. Without solid judicial record. The time has engraved on the front of the Supreme objection, it is so ordered. come to determine whether the nomi- Court. Judge Gorsuch is dedicated to Mr. HOEVEN. Mr. President, I am nee meets those criteria. this principle. He is committed to ap- honored to come to the floor today and After meeting personally with Judge plying the laws neutrally, equally, and join my colleagues to support the nom- Gorsuch, watching his confirmation fairly to all people. ination of Judge Neil Gorsuch to the hearing, and evaluating his background Some of my Democratic colleagues Supreme Court of the United States. and legal record, I believe that answer are saying that Judge Gorsuch is out of Judge Gorsuch is an exemplary pick is a resounding ‘‘yes.’’ Judge Gorsuch’s the mainstream. They argue that he for my home State of North Dakota credentials are exemplary. He has an will not look out for the little guy. and for our Nation as a whole. He has extraordinary resume and a brilliant They are prepared to take the unprece- shown deep respect for the Constitu- mind. For 10 years he has served on the dented and extreme step of filibus- tion and has a strong record of uphold- U.S. Court of Appeals for the Tenth tering this nomination. This would be ing the rule of law. Circuit. The Senate confirmed him to the first successful totally partisan fil- If confirmed, Judge Gorsuch will this position by unanimous consent in ibuster of a Supreme Court Justice in take the seat that was held by the late 2006. No rollcall vote was needed be- the history of the U.S. Senate. Justice Antonin Scalia. Of course, fill- cause all 100 Members supported the Let me share some of the facts about ing that vacancy will be no easy task. nomination. this institution. In our country’s his- Justice Scalia was a brilliant legal

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His legacy on the Court makes him a prominent voice for In- rights and an executive branch that op- will influence American jurisprudence dian Country. As chairman of the Sen- erates as though it is above the law. for generations to come. ate Indian Affairs Committee, I believe That is a real concern—one I have If there is anyone who is worthy of it is important for our next Supreme heard over and over from people in my filling Justice Scalia’s shoes, it is Court Justice to have a concrete record home State of Washington who are Judge Gorsuch. Like Scalia, Judge of respecting Tribal sovereignty. I was frightened about the direction Presi- Gorsuch is an originalist when it comes pleased to learn that he has earned the dent Trump is trying to take our coun- to interpreting the Constitution. support of a number of Native-Amer- try. I had the pleasure of meeting with ican groups, including the National Since taking office about two months Judge Gorsuch last week to discuss his Congress of American Indians and the ago, he has demonstrated complete dis- nomination, and I am confident that he Native American Rights Fund. regard for the law, the Constitution, will make an excellent Justice. Judge Gorsuch has had a long history and American families. He has tried to If you look at his background, it is of handling cases that have affected force through un-American bans on clear that he is an incredibly qualified Native Americans from his time on the Muslim refugees and immigrants. He nominee. After receiving degrees from Tenth Circuit, and he has dem- fired Sally Yates, an Acting Attorney Columbia, Harvard, and then Oxford, onstrated a consistent understanding General who dared to stand up to him. Judge Gorsuch went on to clerk for no- of the unique legal principles that are It is clear this President doesn’t just table Supreme Court Justices Byron involved in Federal Tribal law. The think he is above the law. He has, at White and Anthony Kennedy before en- boundary between State and Tribal au- times, shown a true disdain for it, re- tering private practice. thorities is often ambiguous; yet Judge peatedly insulting the men and women After 10 years of private practice, Gorsuch was able to bring clarity as he on the bench, even telling a crowd that Gorsuch began his career in public diligently studied the law and re- perhaps the Ninth Circuit Court of Ap- service as a Deputy Associate Attorney spected existing precedents in Tribal peals—a court that didn’t rule in his General at the U.S. Department of Jus- sovereignty. favor—should be broken up. tice. In 2006, he was nominated by For example, the Ute Tribe of Utah Now, we need an independent judici- President George W. Bush to the U.S. has been engaged in legal battles with ary that can safeguard the rights of Court of Appeals for the Tenth Circuit, the State over the State’s authority to citizens against this executive branch, and he was confirmed unanimously by prosecute Native Americans on Tribal but with so much chaos created by this the U.S. Senate. land. Judge Gorsuch has consistently President, coupled with the cloud of an Let me repeat that. He was con- ruled in favor of Tribal sovereignty. FBI investigation into him and his as- firmed unanimously by this body. I be- In Hydro Resources v. EPA, a case in sociates, I have no reason to trust that lieve that says a lot about Judge which EPA overreach was redefining he or his administration are acting in Gorsuch as a candidate. In a body that the boundaries of Indian lands, Judge the best interests of our country or our is so often divided, a candidate who can Gorsuch overruled the EPA’s interpre- democracy, and I cannot support mov- receive unanimous support is truly tation and respected the current Tribal ing forward with his choice for the noteworthy. boundaries. Court. When nominated by the President, For all of these reasons, I urge a On top of that, I am concerned about Judge Gorsuch said: ‘‘A judge who likes ‘‘yes’’ vote on Judge Gorsuch’s nomina- the unprecedented pace of the Judici- every outcome he reaches is very like- tion. As the highest Court in the land, ary Committee process, which would ly a bad judge . . . stretching for re- the decisions have a widespread impact rush through this nominee on the fast- sults he prefers rather than those the on millions of Americans. est time line in recent history. That is law demands.’’ During his tenure on When the stakes are this high, it is pretty striking because this same com- the Tenth Circuit, he has demonstrated necessary that we confirm someone mittee failed to hold a single hearing fair and prudent judgment in his opin- with a sound, fair, and prudent ap- on this vacancy for 12 months fol- ions. proach to the law. I have no doubt that lowing Justice Scalia’s passing. It re- In addition to his impressive profes- Judge Gorsuch is the right person for fused President Obama’s nominee, sional background, Judge Gorsuch has this role. I enthusiastically support his Judge Merrick Garland, any oppor- roots as a westerner and will bring nomination, and I urge my colleagues tunity to be heard, which brings me to those roots and a much needed perspec- on both sides of the aisle to do the my serious concerns about this par- tive to the Supreme Court. Because de- same. ticular nominee. cisions that come from the Court affect I yield the floor. I wish to start with women’s access the lives of Americans from across the The PRESIDING OFFICER. The Sen- to healthcare. President Trump cam- country, it is important that the Court ator from Washington. paigned on promises to overturn wom- be composed of Justices from different Mrs. MURRAY. Mr. President, I come en’s constitutionally protected rights regions of the country. It is critical to the floor to express my deep concern to make their own healthcare deci- that our next Supreme Court Justice about the Republicans’ rush to fill the sions, secured by the historic ruling in have a familiarity with the challenges vacant Supreme Court seat and about Roe v. Wade. This President has broken Western and Midwestern States face, President Trump’s nominee for this almost every promise he has made, but like my home State and others—issues critical position. one he appears to be keeping, espe- such as States’ rights, Second Amend- I believe one of the most solemn and cially in selecting Judge Gorsuch, is ment rights, land use disputes, and the consequential decisions we make as his promise to undermine women’s complex relationship between State Senators is whether to support a nomi- health and rights. and Tribal governments. These are the nee to the highest Court in the coun- Judge Gorsuch would have taken the everyday realities we face across this try. It is a responsibility I do not take ruling in Hobby Lobby to allow wom- country that the Justices must deal lightly. And after careful consider- en’s bosses to decide whether or not with. ation, I will be voting against the nom- they get birth control to an even more I expect many of these important ination of Judge Neil Gorsuch, and I extreme result. His deeply conservative issues to come before the Supreme will be opposing a cloture motion end- record suggests he can’t be trusted to Court in the coming months. In fact, ing debate. stand for women’s constitutionally just yesterday, the Court decided to I come to this conclusion weighing protected healthcare rights or access move forward on litigation regarding several things. First, a Supreme Court to care. In fact, it seems clear he will

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.210 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2319 work to weaken those rights at every ministration and so many questions all Senators would have had the oppor- opportunity. now surrounding this President’s com- tunity to debate that nomination on Since day one of this Presidency, mitment to the rule of law: Slow down. the floor. As Senator HATCH and I women nationwide have made it abso- Stop playing political games. Respect wrote in 2001, ‘‘The Judiciary Commit- lutely clear they do not want to go the families we represent. Respect the tee’s traditional practice has been to backwards, and that is something I am separation of power, and stop trying to report Supreme Court nominees to the going to continue to fight for. jam this nominee through. Senate once the Committee has com- I am also going to keep fighting for Whatever you do, do not blow up the pleted its consideration. This has been our workers, and I am troubled that as Senate rules for Supreme Court nomi- true even in cases where Supreme a Federal judge on the Tenth Circuit, nees. Invoking the nuclear option is a Court nominees were opposed by a ma- Judge Gorsuch has a clear record of dangerous path to go down. jority of the Judiciary Committee.’’ siding against workers and with cor- I have been in the majority and I This Senator would not have dis- porations and big businesses. have been in the minority. Either way, regarded precedent and constitutional The Associated Press said his opin- I believe when it comes to a lifetime obligation because of partisan politics. ions were ‘‘coldly pragmatic and appointment to the Supreme Court, the Whether such a nominee would have they’re usually in the employers’ Senate must adhere to a higher stand- been confirmed would have depended favor.’’ ard and the 60-vote threshold. If you on his or her views, but the nominee His history of dismissing workers’ can’t get that many votes for a Su- would have been given a fair process, safety concerns and hostility toward preme Court nominee, you don’t need which Senate Republicans denied Chief upholding disability rights greatly con- to change the rules, you need to change Judge Garland when they pocket fili- cerns me and strongly suggests that he the nominee. bustered him. would join conservative Justices to un- I yield the floor. My record in 2008 shows that I treat- dermine workers’ rights. The PRESIDING OFFICER. The Sen- ed President Bush’s nominees fairly. We need a Justice on the Supreme ator from Vermont. We confirmed 28 circuit and district Court who will uphold workers’ protec- Mr. LEAHY. Mr. President, first I nominees in 2008, including 10 in 1 day, tions and safety and the right to orga- wish to commend the senior Senator just weeks before the election, and re- nize. from Washington State for her terrific duced the number of judicial vacancies I am also deeply concerned about the statement. to just 34. Compare that to 2016, when potential effect on children and stu- I know, as a member of the Judiciary Senate Republicans allowed just nine dents with disabilities. In a number of cases, Judge Gorsuch Committee, that we reported the nomi- circuit and district nominees to be con- ruled in ways that made it more dif- nation of Judge Neil Gorsuch by the firmed in total. That is less than 33 ficult for them to receive the support narrowest margin—a party-line vote. percent of the 2008 number. Moreover, and services they not only deserve but The majority leader then filed cloture Republicans’ pocket filibusters, even are entitled to under the Individuals to cut off debate on this nominee. He for nominees supported by home State With Disabilities Education Act—our has shown that he will use whatever Republican Senators, allowed the num- Nation’s special education law. I tactic is necessary to ensure this nomi- ber of judicial vacancies to skyrocket strongly believe in this law, and I be- nee is confirmed, no matter the con- over 100. Of course, they had done the lieve we should be doing everything to cern of Senators or millions of other same thing at the end of the Clinton ensure individuals with disabilities can Americans. administration, pocket filibustering obtain their full potential by accessing Today is just the 75th day of the more than 60 nominees. Those are the meaningful, quality public education— Trump administration. After only 75 facts. Anyone who claims that judicial certainly not the bare minimum. days of having a Republican-controlled nominees were never obstructed before It is notable that while Judge White House and Congress, the Repub- 2001 has conveniently forgotten those Gorsuch was testifying—actually, lican leader has promised to vitiate the facts. while he was testifying before the Judi- historic rights of the minority in this When Senate Democrats changed the ciary Committee 2 weeks ago—the Su- institution. He is prepared to abdicate cloture rule for lower court nomina- preme Court unanimously rejected his the Senate’s constitutional duty to tions in 2013, we did so reluctantly and prior ruling in a case involving the serve as a check on the President and only after Senate Republicans repeat- rights of a student with disabilities to our responsibility to protect the inde- edly abused Senate rules to wage in un- receive a meaningful education. It is pendence of the Federal judiciary, all paralleled obstruction of President highly troubling that when it comes to in the service of Donald Trump’s agen- Obama’s nominees over a period of policies concerning torture, Gorsuch— da and because, as we know, Donald years. By November 2013, the Repub- as a member of President George W. Trump asked him to. lican leader had orchestrated an un- Bush’s Justice Department—advocated Senate Republicans seek to justify precedented number of filibusters, in- that the President has broad powers to their tactics by claiming that Demo- cluding requiring cloture motions on 34 basically ignore parts of the legal ban crats would do no different were the circuit and district nominees in less on torture. shoe on the other foot. They are free to than 5 years—compared to 18 nominees This deference to Executive power is make that argument, but it is wrong. who faced cloture motions during the concerning, to say the least, but it also There is one claim in particular that I entire 8-year tenure of President Bush. makes a whole lot more sense as to need to address. Some Republicans When it comes to judicial nomina- why Judge Gorsuch would be Donald have asserted that, if President Bush tions, the filibuster has been a tool to Trump’s No. 1 choice. had made a Supreme Court nomination protect the independence of our courts His testimony before the Judiciary in 2008, the final year of his term, by compelling Presidents to find main- Committee regarding Citizens United, Democrats would have pocket filibus- stream, consensus nominees who do in which he incorrectly stated that the tered that nomination the same way not bring an agenda with their lifetime Court left Congress the ability to enact that Senate Republicans did to Chief appointments to our courts. Senate commonsense campaign spending lim- Judge Merrick Garland. Well, I was the Democrats filibustered a small number its, strengthens my decision to vote no. chairman of the Judiciary Committee of President George W. Bush’s nomi- So if you believe in transparency in during that time, and I can assure nees, but it was not because they were our elections and upholding the integ- them that they are wrong. Democrats conservative, or had been nominated rity of our democracy or you believe did not invent an election year excep- by a Republican President. It was be- we need a Justice who will protect the tion to the Constitution. Look no fur- cause we had serious doubts about rights of all Americans and stand with ther than when a Democratic-led Sen- their ability to put partisanship and them and not with President Trump ate confirmed Justice Kennedy during ideology aside and be fair, neutral and millionaires and billionaires, this a Presidential election year. judges. Or it was because the President choice is clear. If President Bush had made a Su- had ignored the traditional role of As I have urged my colleagues for preme Court nomination in 2008, that home State Senators when selecting weeks, with so much chaos in the ad- nominee would have had a hearing, and the nominee. We confirmed numerous

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.220 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2320 CONGRESSIONAL RECORD — SENATE April 5, 2017 conservative nominees, including Court, and that vacancy should be groups. The leader of that unprece- Judge Neil Gorsuch. In fact, during the filled with a qualified, mainstream dented vetting process admitted they 41 months that I was chairman of the judge. I know that a Republican Presi- were not driven by ‘‘Who’s a really Judiciary Committee while President dent would probably make a different smart lawyer and who has been really Bush was in office, the Democratic-ma- selection than the one I would make, accomplished?’’ but by a search for jority Senate confirmed more circuit but I have always been willing to con- someone ‘‘who understands these and district nominees than were con- sult with Presidents of both parties to things like we do.’’ firmed during the 55 months when Re- find mainstream, consensus nominees. Let us be clear. These are not groups publicans held the majority. That is my constitutional obligation as that support independent judges who When President Obama took office, a Senator. act with restraint. These groups search Senate Republicans imposed a new Now, all Presidents, including Presi- for nominees who will skew the courts, standard. Just 2 days after he was dent Trump, are entitled to have their who will call to reject precedent, and sworn in, a group of extreme conserv- Supreme Court nominees considered on who will further their partisan agenda. ative activists instructed Senator the merits. Over my 42 years in the And they gave President Trump a list MCCONNELL to treat President Obama’s Senate, I have evaluated every nomi- and said: Here, you are allowed to pick judicial nominees in an ‘‘unprece- nee on the merits, and I have never from our people. If these groups sought dented’’ way, and that is what he did. gone to reflexive partisanship. In fact, a mainstream, widely respected, and For the first time, even noncontrover- I have voted to confirm six Supreme independent jurist, they would have sial district court nominees were sub- Court nominees of Republican Presi- been as supportive as I was of Chief ject to filibusters—Leader Reid was at dents. I do not know if there is any Re- Judge Merrick Garland. Instead, they one time forced to file for cloture on 17 publican in this Senate who could say funneled money to push Senate Repub- of them in a single day because of Re- that about nominees of Democratic licans to hold Chief Judge Garland’s publican obstruction, even though none Presidents. nomination hostage and to have the were particularly controversial and Although I had concerns that Judge Senate defy the Constitution of the many actually had the support of their Gorsuch would bring a partisan agenda United States for the first time ever in home State Republican Senators. to the Court, I went to his hearing with not allowing advice and consent. The Federalist Society’s purpose Republicans filibustered judicial an open mind. I had hoped he could statement, which is on their website, nominees they ultimately supported. convince me that he was a conservative calls for ‘‘reordering priorities within They stalled Senate action for weeks I could support, as I did Chief Justice the legal system to place a premium and months on judicial nominees who Roberts. I voted for Chief Justice Rob- on,’’ among other things, ‘‘traditional they did not oppose and who they ulti- erts not because I thought I would al- values.’’ These groups and the billion- mately voted to confirm once their fili- ways agree with him—and I do not— aire donors who fund them have a clear busters ended. Senate Republicans kept but because I was able to take him at agenda—one that is antichoice, making up new excuses for filibus- his word that he did not have an ideo- antienvironment, and procorporate. I tering nominees that had nothing to do logical agenda. I cannot take Judge am not one to gamble, but in my mind with the nominees themselves. They Gorsuch’s word that same way. they would not have gambled with mil- abused the Thurmond Rule to filibuster It is no secret that Judge Gorsuch is lions of dollars on Judge Gorsuch. They Judge Robert Bacharach, even though very conservative—that much was evi- chose and invested in him for a reason. he had been reported almost unani- dent back in 2006 when he was con- They are supremely confident he mously and was supported by his two firmed to the Tenth Circuit. Back then, shares their far-right agenda. So is the very conservative Republican home he did not have a judicial record, but White House. State Senators. It was obstruction for he gave answers that were reassuring. The White House Chief of Staff has obstruction’s sake. He discussed the importance of fol- said that Judge Gorsuch ‘‘has the vi- But the final straw was when Repub- lowing precedent and of judicial re- sion of Donald Trump.’’ He said that, licans blockaded the DC Circuit. The straint and deference to Congress. He with this nomination, ‘‘We’re talking Senate had confirmed four of President said, ‘‘Precedent is to be respected and about a change of potentially 40 years Bush’s nominees to that court, but honored. It is not something to be di- of law.’’ It is clear that the people who only one of President Obama’s five minished or demeaned. It is something vetted Judge Gorsuch do not want a nominees. When Senate Republicans you should try to uphold wherever you nominee who will ‘‘call balls and filibustered President Obama’s last can, with the objective being, follow strikes.’’ They want a nominee who three DC Circuit nominees in late 2013, the law as written and not replace it will expand the strike zone to the det- they barely even bothered to pretend with my own preferences, or anyone riment of hard-working Americans. We to find fault with the nominees them- else’s.’’ He explained that judges should all find that concerning. selves. These were mainstream nomi- should not be ideologues who disregard At his public hearing, Judge Gorsuch nees with broad support. Their only al- precedent ‘‘to effect [their] own per- did nothing to allay my concerns. In leged flaw was that they had been nom- sonal views, [their] politics, [their] per- fact, he solidified them. I cannot recall inated by President Obama. Senate Re- sonal preferences.’’ Well, I wish that a nominee refusing to answer such publicans unilaterally decided that same judge were before us today, but basic questions about the principles President Obama should not get to he is not. underlying our Constitution. These make additional nominations to that Judge Gorsuch has a fine resume. I were fundamental questions that we court, effectively trying to nullify the do not take issue with the qualifica- should ask every nominee seeking a results of the 2012 election—a prelude tions on paper, but my concern is that lifetime appointment to our Highest to their unprecedented treatment of he has not lived up to his own stand- Court, but Judge Gorsuch would not Chief Judge Merrick Garland. ard. I am concerned that his personal answer. Some of the questions that I Compare that to the situation we are views and his politics have permeated asked him were not intended to be dif- in this week. We are told that we must throughout his judicial philosophy. ficult. Several could have been an- rubberstamp Judge Gorsuch or the ma- That is, in fact, the reason why his swered by any first-year law student, jority leader will change the rules. nomination is before us today. with ease; yet, unless we were asking Now, some may remember reports from To know what kind of a Justice about fishing or basketball, Judge last year where several Senators prom- Judge Gorsuch would be, we have to Gorsuch stonewalled and avoided any ised to blockade any Supreme Court understand why he was chosen. Presi- substantive response. He was excruci- nominations by one of the Presidential dent Trump made very clear right from atingly evasive. His sworn testimony candidates if that candidate won the the beginning that he had a litmus and his approach to complying with election. Of course, those were Repub- test: Anyone he nominated to the Su- the Judiciary Committee’s historic lican Senators talking about Secretary preme Court would automatically over- role in the confirmation process was, in Clinton. But that proposed blockade is turn Roe v. Wade. Then-candidate my view, patronizing. not what is happening here. The fact is Trump proceeded to outsource the se- Judge Gorsuch claimed that he did that there is a vacancy on the Supreme lection process to far-right interest not want to prejudge potential cases.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.221 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2321 That is a valid concern, but only with- as the Court held in Hamdan v. Rums- overcriminalization and arguing that in reason. It should not be used to feld. Here is the totality of his re- there are too many Federal criminal evade questions on long-settled prece- sponse: ‘‘I agree that Hamdan v. Rums- laws and regulations. Those of us on dent or on the meaning and purpose of feld recognized limitations on the the Judiciary Committee know this is constitutional provisions. Judge power of the President. It is a prece- a substantive and controversial policy Gorsuch would not even state whether dent of the Supreme Court entitled to issue that has been vigorously debated he agreed with certain landmark Su- all the weight due such a precedent.’’ in recent years. I have to wonder why preme Court cases such as Brown v. Perhaps that is better than no response this was the only issue where he put Board of Education. He refused to say at all, but not by much. forward his actual views. That is not whether he believes that the Equal When I asked Judge Gorsuch a good enough for me. As the article by Protection Clause applies to women. straightforward question about wheth- Garrett Epps in the Atlantic put it, He refused to say whether the framers er the Framers of the First Amend- Judge Gorsuch’s refusal to answer of the First Amendment believed it ment believed it permitted the use of a questions implied that the role of a permitted the use of a religious litmus religious litmus test, he refused to an- judge is ‘‘a job which calls, apparently, test. He refused to provide information swer. Any first-year law student knows for neither values nor any firm connec- regarding his selection by extreme spe- the answer to that one. tion to human life as it is lived.’’ The cial interest groups and a billionaire I asked then-Judge Roberts a similar American people know better. businessman. And he even refused to question—whether he would reject All of this matters because court de- confirm whether he would continue to Korematsu and hold it unconstitu- cisions, especially Supreme Court deci- recuse himself from matters involving tional to intern U.S. residents who sions, are not simply detached applica- that billionaire—as he has done on the ‘‘have a particular nationality or eth- tions of neutral principles. If there Tenth Circuit—even if presented with nic or religious group.’’ He said: ‘‘I sup- were, all judges would reach the same the exact same facts. pose a case like that could come before results. They do not. Legal decisions Other Supreme Court nominees have the Court. I would be surprised to see are not mechanical. They are matters been far more forthcoming. When it, and I would be surprised if there of interpretation and, often, matters of asked whether he agreed with impor- were any arguments that could support justice. One Supreme Court Justice tant precedents, then-Judge Alito an- it.’’ I do not think he prejudged any said more than a century ago: ‘‘When swered the questions. When I asked cases, but he was still able to provide a we take our seats on the bench we are then-Judge Roberts whether Congress real answer to a basic question—and he not struck with blindness, and forbid- has war powers, he said, ‘‘Of course. earned my support. den to know as judges what we see as The Constitution specifically gives I had hoped that, if Judge Gorsuch men.’’ that power [to declare war] to Con- was not willing to be transparent for Whether he will acknowledge it or gress.’’ I asked whether Congress has the lights and cameras, he would at not, Judge Gorsuch’s record says a lot the power to stop a war, and he said, least answer written questions—given about his judgment and his sense of ‘‘Congress certainly has the power of time to carefully craft answers. Again, justice. In a policy role at the Justice the purse,’’ but added, ‘‘as a judge, I he declined. He refused to expressly ac- Department, he embraced broad and would obviously be in a position of con- knowledge that Congress has war pow- discredited assertions of Executive sidering both arguments, the argument ers, even though we know we do. Every power. Judge Gorsuch once complained for the Legislature and the argument high school student knows that the about liberals relying on the courts to for the Executive. The argument on the Constitution gives Congress the power vindicate their constitutional rights, Executive side will rely on authority as to declare war. He again misstated the but, once on the bench, he had no prob- Commander in Chief, and whatever au- holding of Citizens United in an at- lem rubberstamping the far right’s so- thorities derive from that.’’ It was per- tempt to evade my question about cial agenda when he ruled that employ- haps not the answer I would have liked, Congress’s ability to enact campaign ers could control their employees’ ac- but he certainly engaged with the ques- finance legislation. He provided no an- cess to contraception. As a judge, he tion and showed that he understood the swer at all to questions regarding the twisted statutory language to limit the issue in a way that did not prejudge Supreme Court’s decision in Shelby rights of workers, of women, and chil- any potential case. County to gut the Voting Rights Act or dren with disabilities. I later asked then-Judge Roberts about women’s rights to obtain contra- Judge Gorsuch also reached for broad whether ‘‘Congress can make rules that ception. And, again, he refused to an- constitutional questions that were not may impinge upon the President’s com- swer whether the First Amendment before him in order to advance his mand functions.’’ He responded: ‘‘Cer- prohibits the President from imposing agenda. Just last summer, Judge tainly, Senator. The point that Justice a religious test, even when the Trump Gorsuch wrote a concurrence to his Jackson is making there is that the administration has adamantly claimed own opinion in a case called Gutierrez- Constitution vests pertinent authority such a litmus test is not at issue with Brizuela v. Lynch. His unanimous in these areas in both branches. The his travel ban. panel opinion decided the case on nar- President is the Commander in Chief, Previous nominees respected the Ju- row grounds. But Judge Gorsuch never- and that meant something to the diciary Committee’s constitutional theless wrote a separate concurrence to Founders. On the other hand, as you role by answering questions in a sub- argue that the Chevron doctrine should just quoted, Congress has the authority stantive way, not with mere platitudes. be overturned. The Chevron doctrine to issue regulations governing the The difference is clear to Vermonters. not only forms the basis for our mod- Armed Forces, another express provi- As an editorial in the Rutland Herald ern government, but it is well-settled sion in the Constitution. Those two can put it: law and has been for decades. As Emily conflict if by making regulations for Gorsuch’s affable muteness sent a message: Bazelon and Eric Posner wrote in the the Armed Forces, Congress does some- I am above the people and their concerns. I New York Times, ‘‘The administrative thing that interferes with, in the Presi- have no responsibility to anyone but the nar- state isn’t optional in our complex so- dent’s view, his command authority, row band of millionaires and ideologues who ciety. It’s indispensable.’’ and in some cases those disputes will have advanced my nomination and to the Judge Gorsuch’s rejection of that has be resolved in Court, as they were in President who has declared war on the Amer- shown that he is not a mainstream the Youngstown case.’’ Whether one ican government. nominee. His judicial record dem- agrees with it or not, that was a sub- Mr. President, I ask unanimous con- onstrates a partisan agenda—a hos- stantive answer. sent to have printed in the RECORD at tility toward our government’s power I asked Judge Gorsuch a similar the conclusion of my remarks the full to enact environmental, labor, con- question in writing—whether he agreed editorial. sumer rights, and other regulations that ‘‘the Constitution provides Con- Judge Gorsuch claimed that his per- that keep hard-working Americans safe gress its own war powers and Congress sonal views do not matter so he would and ensure a level playing field—not may exercise these powers to restrict not share them. But that did not stop just for the wealthy few, but for all the President—even in a time of war’’ him from speaking at length about hard-working Americans.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.223 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2322 CONGRESSIONAL RECORD — SENATE April 5, 2017 Between not answering questions, With the Gorsuch nomination, Re- nominee on the merits—and I have Judge Gorsuch spoke repeatedly about publicans are proving they have no in- voted to confirm six Supreme Court the limited role that judges play in our terest in playing by the rules; they pre- nominees of Republican Presidents. democracy. His actual record belies fer to break them. The unprecedented If the Senate does not vote to end de- that claim. I think that is precisely obstruction of Chief Judge Merrick bate on this nomination, that is a judg- why these extreme-right interests Garland is going to be a permanent ment on defects of this nominee. I re- groups selected Judge Gorsuch. That is stain on this body. But then, days after mind the Republicans that they do why the President’s Chief of Staff the 2016 election—after Republicans have a choice here. We can work to- promised he will bring a change of 40 turned their back on the Constitution gether with President Trump to find a years of law, and that is why I cannot for a whole year, even though they had mainstream, consensus nominee. I ex- support this nomination. sworn an oath to uphold the Constitu- pect that an actual mainstream nomi- It is for this nominee that Senate Re- tion, which calls for advice and con- nee would be confirmed easily, even if publicans have brought us to this prec- sent, they refused to advise and con- nominated by President Trump. Recall ipice, but perhaps we should not be sur- sent and have a vote on Chief Judge the process President Obama used prised. Republican leadership has Merrick Garland—Republican leaders when he selected Chief Judge Merrick sought to govern only by simple major- threatened to change the rules to get Garland. He sought advice from both ity since day 1 of the Trump adminis- their own nominee through—before we Republican and Democratic Members tration. They paraded before the Sen- even had a name. After disregarding of Congress and was told this was a ate the most extreme and partisan his constitutional obligations for near- person who would get a solid majority slate of Cabinet nominees I have ever ly a year, the majority leader now tells vote. He said: ‘‘We have reached out to seen. Their signature legislative goal— us we must rubberstamp President every member of the Senate Judiciary to repeal the Affordable Care Act—col- Trump’s nominee or he will forever Committee, to constitutional scholars, lapsed under the weight of their own damage the Senate. to advocacy groups, to bar associa- intraparty infighting. Then, they It is interesting that the majority tions, representing an array of inter- dusted off the Congressional Review leader’s argument for obstructing Chief ests and opinions from all across the Act and, by party-line votes, rolled Judge Merrick Garland was that the spectrum.’’ President Obama nomi- back more than a dozen environmental, American people needed to weigh in on nated somebody who, in normal times, workplace, privacy, healthcare, and this decision, as if they had not would have gotten the vast majority of transparency protections—all over the weighed in when they reelected Presi- votes of Republicans and Democrats. If objections of the minority. dent Obama in 2012. But when the President Trump would have followed Think about that. Republicans have American people did vote last Novem- that template, we would not be in this not sought compromise on anything in ber, nearly 3 million more of them extraordinary place. this Congress. That is not the way to chose Secretary Clinton over Donald Let me conclude with this. In the govern. To give you one example, they Trump. In fact, Ezra Klein had it right committee, I said I respect this institu- repealed an important internet privacy 2 months ago when he wrote that this tion as much as anyone. I have been rule that protected Americans’ online nomination ‘‘makes a mockery of the here for more than 42 years. I have de- activity. That means that by party- popular will.’’ voted myself to the good the Senate line vote, hard-working Americans will Mr. President, I ask unanimous that can accomplish. We 100 Senators stand now see their private internet activity the article, ‘‘The country deserves a in the shoes of 320 million Americans. sold to the highest bidder for greater compromise Supreme Court nominee. We should be the conscience of the Na- corporate profits. They are allowing Neil Gorsuch isn’t one,’’ by Ezra Klein, tion. First and foremost, we must do what is right by 320 million Americans. these companies to basically come in also be printed in the RECORD at the and spy in your house because they are conclusion of my remarks. And I am not going to vote solely to making money. Because of the divergence between protect an institution when the rights But Senate Republicans didn’t stop the popular and electoral vote, Klein of hard-working Americans are at risk. there. They rolled back protections to argued, ‘‘This is a time, if ever there It is for these reasons that I must op- ensure that all students have the same was one, for a compromise nominee, pose this nomination. educational opportunities. They elimi- and Gorsuch is not a compromise nomi- There being no objection, the mate- rial was ordered to be printed in the nated rules requiring employers to nee.’’ This is exactly what the 60-vote RECORD, as follows: maintain records of workplace injuries threshold is for. It helps ensure that so employers could avoid account- Presidents consult with Senators of [From the Rutland Herald, Apr. 5, 2017] ability. In other words, if you have both parties and find mainstream, con- NOTOGORSUCH major injuries, you do not have to keep sensus nominees. The filibuster pro- Senate Democrats are prepared to block the appointment of Neil Gorsuch to the Su- a record of that to make sure nobody tects the rights of the minority and of preme Court, and the Republican majority is knows this is a dangerous place to individual Senators; it protects the prepared to change the Senate rules to push work. They rolled back rules holding constitutional role of the Senate, and the appointment through anyway. coal companies accountable for their it helps us protect the independence of Sens. Patrick Leahy and Bernie Sanders pollution. Most recently, Republicans the Supreme Court. The Court is no are willing to filibuster the Gorsuch nomina- undermined healthcare access for mil- place for someone with a radical, par- tion, offended by the candidate’s evasiveness lions of Americans, rolling back pro- tisan agenda. and alarmed by his ideological rigidity. Mounting a filibuster comes at a cost, how- tections under the title X program. In Senate Republicans are defending ever. Senate Majority Leader Mitch McCon- underserved communities and rural their threat to change the rules by nell has said the Republicans would rewrite areas like Vermont, title X is critical claiming that Judge Gorsuch is essen- the Senate rules in order to prohibit the use in making sure women have access to tially a perfect nominee and that, if of a filibuster to block Supreme Court nomi- the basic healthcare they need. Democrats filibuster Judge Gorsuch, nees. As it stands the Republicans would But that is what one-party rule gets then we would filibuster anyone. That need 60 votes to shut down debate; if the Re- you. They are great at looking out for is nonsense. We have asked only for a publicans change the rules, Gorsuch would need only 51 votes to gain confirmation. corporate interests. They struggle at mainstream nominee. Perhaps they are Elimination of the filibuster on high court looking out for the interests of hard- confusing our approach with their nominations worries some Democrats. But working Americans. The irony of it all blockade of Chief Judge Garland. Un- what do they have to lose? If they give in to is that even these partisan efforts have like committee Republicans’ treatment McConnell they will have retained the right been too partisan for some Repub- of Chief Judge Merrick Garland, I take to filibuster but would have lost the power licans. Three times this year—the most my constitutional duty to independ- to exercise it. Instead, they would have sur- of any Vice President since 1911—Vice ently evaluate a President’s Supreme rendered to one of the most egregious power grabs in the nation’s history, allowing the President PENCE was forced to make Court nominees seriously. As I have Republicans to place their stamp on the judi- the trip to Capitol Hill to break a tie said, my votes on Supreme Court nomi- ciary in order to impose an agenda on the and ensure some of these extreme nations have never been about reflexive nation that the nation has shown no indica- measures passed. partisanship. I have evaluated every tion it supports.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.224 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2323 The Republican campaign to seize domi- nee. And President Barack Obama tried to Mrs. FEINSTEIN. Mr. President, I nance of the judiciary must be seen as an ef- offer one: Merrick Garland, who had pre- rise today as the ranking member of fort by narrow interest groups to force meas- viously been suggested for the Court by Re- the Judiciary Committee to speak ures into the law that the American people publican Sen. Orrin Hatch. Republicans did about the nomination of Judge Neil would never allow the legislative branch to not oppose Garland. They refused to consider advance. In order to pursue this agenda, the him, or anyone else, for the opening. They Gorsuch to the Supreme Court of the Republicans have resorted to a contemp- insisted that no opening on the Court could United States. tuous assault on the role of Congress as the be filled in an election year—an absurd faux In committee, at the outset of the body that must consent to judicial appoint- principle which implies that vacancies on hearings, I remarked that our job was ments. the Court must be left unfilled fully 50 per- not to evaluate legal doctrines and The refusal of the Republicans to allow cent of the time. theories or to review Judge Gorsuch’s even a hearing on President Barack Obama’s Having blocked efforts to replace Scalia record in a vacuum. Our job is to assess under Obama, Republicans were relieved appointment of Merrick Garland to the Su- how this nominee’s decisions will af- preme Court showed that they were willing when Trump won the Electoral College. But to scoff at their own constitutional obliga- Democrats decisively won the popular vote fect the American people and whether tions in service of their ideological and eco- and gained seats in the Senate. I do not want he will protect the legal and constitu- nomic loyalties. to overstate this: US elections are not de- tional rights of all Americans. Gorsuch’s refusal to answer even the most cided by simply tallying up votes. But I have had this in mind throughout basic questions about his thinking was an though the public will doesn’t decide elec- the entire process. Let me begin with expression of the same contempt for Con- tions, it should still weigh on those who hold an aside. I represent a large State, and gress that McConnell displayed in refusing to power. This is a time for a center-right I do pay close attention to constituent allow a hearing for Garland. Gorsuch’s affa- nominee, just as Obama put forward a cen- letters, calls, and emails. A weekly re- ble muteness sent a message: I am above the ter-left nominee in Garland. people and their concerns. I have no respon- The choice is all the more important be- port lets me know on what issues peo- sibility to anyone but the narrow band of cause the Supreme Court is, itself, a strange ple are focused and what they think. I millionaires and ideologues who have ad- and undemocratic institution. It is insulated take this feedback very seriously. vanced my nomination and to the president from popular opinion, and judges serve for In general, my barometer has been who has declared war on the American gov- life. Forcing it unnaturally out of step with that when I receive over 30,000 calls, ernment. the public is bad for both the Court and the emails, or letters, that is when I know Much is at stake with the Gorsuch nomina- country. Senate Democrats have the power to fili- an issue is reasonably meaningful to tion. His own rulings suggest he adheres to a many people in the State. To be clear, view that the high court went astray in the buster nominees to the Supreme Court. I 1930s in decisions allowing the federal gov- don’t agree with those who think Democrats I don’t base my final judgment on any ernment to give rule-making power to agen- should filibuster anyone who isn’t Garland, issue or nominee solely on the numbers cies established to protect workers, con- as Sen. Jeff Merkley is threatening. But of calls and letters I receive. However, sumers, investors, air, water, the purity of Democrats should insist on a compromise this is a representative democracy. I food and drugs. There is a cohort of extreme nominee—it would be wise of them to offer a find this to be an important measure of conservatives—President Donald Trump’s realistic list of more centrist candidates— what California constituents are think- adviser Steve Bannon is their godfather— and use the filibuster to give their position teeth. ing. who have declared that they want to destroy When it comes to this nomination so the ‘‘administrative state.’’ Gorsuch’s rul- It’s true that Republicans could eliminate ings and his refusal to describe his thinking the filibuster with only 51 votes, but it’s not far, my office has received a total of suggest he is one of them. clear why that’s relevant. If the Supreme 112,309 calls, emails, and letters from The filibuster is an antidemocratic tradi- Court filibuster will be eliminated the mo- California constituents; and 92,799, or tion in the Senate that allows a minority to ment it’s used, then it’s a fiction, and there’s 83, percent, oppose this nominee and block action by refusing to end debate on a little cost to seeing it unmasked as such. If 19,510, or 17 percent, support this nomi- measure. It is usually defended as a means to Republicans would prefer to destroy the fili- nee. demand from senators comity and a willing- buster than make any accommodation to the majority of voters who wanted a Democratic Let me read a few of the emails. One ness to join with the other side to find mid- constituent from Silverado, CA, wrote: dle-of-the road solutions. In normal times, president to be making this pick, then that’s the majority would nominate a centrist jus- their prerogative—at least the Democrats’ ‘‘In 1971, when abortion was illegal, I was tice in order to draw support from both sides base will know their legislators did their forced to have a child at age 16. That was 46 so that the minority would not see the need best. Democrats need not be in the business years ago. With Gorsuch, we would step back to mount a successful filibuster. of protecting a filibuster they cannot use. into that world where women and girls have But these are not normal times. The Re- It’s a mistake to see Supreme Court nomi- NO choice but an illegal and unsafe abortion publicans have succeeded in getting their nations as about the individual’s re´sume´ OR become a mother. It is wrong. The choice way by refusing to compromise, and they rather than the country’s wishes. If the ques- is untenable and dangerous. Filibuster will continue to get their way until the tion is whether Gorsuch is qualified to be on Gorsuch and do whatever it takes.’’ Democrats stand up to them. McConnell may the Court, of course he is. But that’s not the I was a college student in the 1950s, ditch the filibuster this time, but he may rue question. The question is whether Gorsuch and I remember very much what life the day after the people revolt against the should be on the Court—whether he is the right pick for this moment, and for the dec- was like before a woman had the right disaster of the Trump administration and to privacy, to control her reproductive elect a Democratic Senate. ades in which he’s likely to serve. He is not. Leahy and Sanders are taking a necessary Republicans lost the popular vote in the system according to Roe v. Wade. and principled stand against the Republican presidential election preceding Scalia’s Another constituent from San Diego effort to steal a seat on the Supreme Court. death. They lost the popular vote in the emailed: presidential election after Scalia’s death. The Democrats may not win this battle, but ‘‘As a beneficiary of the right to marry 31⁄2 they are on the right side. The will of the people might not be all that years ago, I personally understand how im- matters in politics, but nor should it be portant Supreme Court decisions are. I also [From Vox, Feb. 3, 2017.] meaningless. This is a time, if ever there was attended a segregated elementary school one, for a compromise nominee, and Gorsuch THE COUNTRY DESERVES A COMPROMISE SU- when I was a little boy. I do not trust that is not a compromise nominee. Republicans PREME COURT NOMINEE. NEIL GORSUCH ISN’T Neil Gorsuch would advocate for the best in- do not need to nominate a liberal, but Demo- ONE. terests of women & minorities. Please do not crats should insist they nominate a justice confirm him.’’ (By Ezra Klein) more in the mold of Anthony Kennedy than The problem with Neil Gorsuch’s nomina- Scalia. A woman from Richmond, CA, wrote: tion for the Supreme Court is not Neil The Supreme Court is undemocratic ‘‘I believe that we, the people, will have a Gorsuch. He is, by all accounts, a brilliant enough as it is. It does not need to be made difficult time getting fair and equal treat- jurist and a kind man. But he is an ex- more so. ment with Gorsuch being on the Supreme tremely conservative judge at a moment Mr. LEAHY. I yield the floor. Court. He will help the rich corporations, when an extremely conservative judge The PRESIDING OFFICER (Mr. COT- and the poor and middle-class will suffer ir- makes a mockery of the popular will. For TON). The Senator from California. reparably.’’ the good of the country and the Court, this I don’t comment on any of these be- moment demands a compromise nominee, Mrs. FEINSTEIN. Mr. President, how and Gorsuch is not that. much time do I have? cause none of these are sacrosanct, but Antonin Scalia’s seat came open under a The PRESIDING OFFICER. The they are opinions. Democratic president and a Republican Sen- Democrats have approximately 36 min- Brandon Gregg from Burlingame ate. This should have led to a centrist nomi- utes remaining. wrote:

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.048 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2324 CONGRESSIONAL RECORD — SENATE April 5, 2017 ‘‘The republicans did not give Merrick Gar- in the last several years, this Supreme looking only to what people believed land a hearing, instead waiting until Trump Court has issued an additional 11 5-to- when our country was founded was could propose a young right-leaning judge 4 decisions that promote the rights of ‘‘little more than arrogance cloaked as who will take our country backwards. corporations over the rights of every- humility’’ that ‘‘while proponents of Gorsuch will not advance the agenda of human rights within our Constitution, but day people, on topics as wide-ranging this facile historicism justify it as the will plunge us back into the past where mi- as age discrimination and harassment depoliticization of the judiciary, the norities had little protection, women did not to limiting access to courts and juries. political underpinnings of such a have equal rights, people of color were de- So who sits on the Supreme Court choice should not escape notice.’’ After nied the right to vote, and protections for all matters. Just look at some of the key all, ‘‘[t]hose who would restrict [legal people that we take for granted, did not cases that have come down since this claims] to the values of 1789 specifi- exist. This is not the world I want for myself, vacancy arose last year. For example, cally articulated in the Constitution my children, or my grandchildren. Filibuster the Supreme Court deadlocked 4-to-4 turn a blind eye to social pro- Gorsuch’s confirmation. Please.’’ on a case to determine whether unions gress. . . .’’ The bottom line is that Californians are able to fight for fair pay and bene- This is Justice Brennan’s speech in are letting me know loud and clear fits for all workers by requiring them 1985 at Georgetown University. This is that who sits on the Supreme Court to contribute to a union’s action on an important point that I think bears matters. Unfortunately, up to now, their behalf. repeating. A judge’s decision to adopt much of the press coverage on this We know this issue will go back to an originalist philosophy is inherently nomination has been about politics and the Supreme Court. If, next time the political because it discounts the ex- process. Court rules against unions like the pansion of constitutional protections In contrast, little has been said about California Teachers Association, it will beyond White men who owned prop- how the Supreme Court affects the be overturning a 40-year precedent erty. Yes, that is the way it was back lives of Americans, their families, and known as ‘‘agency shop,’’ and it will then. their communities. So, let me say, in permit an assault on worker’s rights. The U.S. Constitution, I deeply be- the past 24 years that I have been a Also last year, the Supreme Court lieve, is a living document intended to member of the Judiciary Committee, I considered the case on North Carolina’s evolve as our country evolves. We are have seen that the Supreme Court is, law that reduced early voting days, not supposed to ignore social progress, in fact, the last word in so many areas: eliminated same-day registration, and and I don’t believe the Founders of our the personal rights of all Americans, established new restrictive photo ID re- country ever intended us to do so. including whom they can marry, and quirements to vote. The Fourth Circuit Another concern with Judge whether women have the right to pri- struck down North Carolina’s law con- Gorsuch’s record is his extreme, con- vacy that allows them to control their cluding it had ‘‘targeted African Amer- servative view of the Federal Govern- own bodies. icans with almost surgical precision.’’ ment. For example, he has indicated he The Supreme Court determines Yet, when the Supreme Court consid- believes the longstanding legal doc- ered it, they deadlocked 4 to 4. Who whether decisions about healthcare trine that allows agencies to write sits on that court matters. will be determined by families or busi- rules to effectively implement laws After 4 days of hearings and review- nesses. The Supreme Court has the should be overturned. That doctrine, as final say on whether States and local- ing Judge Gorsuch’s record, we have learned that he, indeed, has strong the Presiding Officer well knows, is the ities will be able to pass laws that Chevron doctrine. It was discussed in make it harder for low-income people, views of what the law should be and how it should be interpreted. While committee. people of color, seniors and students to Chevron was itself a unanimous opin- Judge Gorsuch was not responsive to vote. The Supreme Court will decide ion authored by the liberal Justice Ste- whether corporations are able to pol- many questions, he did tell us that he is happy to be called an originalist, and vens and joined by conservatives, in- lute our air and water with impunity. cluding Chief Justice Burger. This It is the Supreme Court that will be that he embraced the term. He also stated that he believes judges should legal doctrine has been in place for dec- the final world on Executive authority, ades and has been cited more than whether it is used to waterboard, de- look to the original public meaning of the Constitution when they decide 15,000 times. If Chevron is overturned, tain individuals indefinitely, or over- what one of its provision mean. as Judge Gorsuch has advocated, many reach in other ways. According to him, ‘‘the Constitution important laws that Congress has Each year, more than 350,000 civil isn’t some ink blot on which litigants passed would become ineffective. and criminal cases are filed in Federal may project their hopes and dreams. I want to give a personal example. courts. The Supreme Court hears argu- . . . but a carefully crafted text judges In 2007, Senator Olympia Snowe and I ments for only about 80 cases a session are charged with applying according to finally passed legislation, thanks to and makes decisions on approximately its original public meaning.’’ Senator Ted Stevens and Dan Inouye, 50 more cases without hearing argu- Original public meaning—that takes to increase the mileage efficiency of ments. us back to 13 colonies, 4 million Ameri- cars. This was critical to address be- Now, this means the Supreme Court cans, and 1789. I find this originalist ju- cause pollution was clouding up our only hears a very small percentage of dicial philosophy to be deeply trou- cities, and it was important to improve cases—less than 0.02 percent. bling. It essentially means that judges the functioning of our automobiles. Before the current vacancy, the most and courts should evaluate all of our Our legislation required the Depart- significant questions were closely de- constitutional rights and privileges as ment of Transportation to set stand- cided by 5-to-4 decisions, with five they were understood in 1789. To freeze ards so that fuel economy would in- votes coming from Republican-ap- our understanding of the Constitution crease at least 10 miles per gallon over pointed Justices. in 1789, I think, ignores the Framer’s 10 years—that is the time we could These include important decisions intent. But more importantly, it would foresee—and continue to rise after that affect our elections, like Shelby ignore the vibrancy and growth of our that. We instructed the agency to County and Citizens United, decisions Nation. achieve the ‘‘maximum feasible aver- that weakened the power of average We are no longer a society that con- age fuel economy’’ and directed the voters by expanding the role of dark dones slavery. We no longer permit seg- Secretary of Transportation to con- money and gutting a key provision of regation. We do not allow child labor. sider ‘‘technological feasibility, eco- the Voting Rights Act. We also saw a 5- We recognize that women not only de- nomic practicality, the effect of other to-4 decision in Heller that overturned serve an education but can be leaders motor vehicle standards of the govern- 70 years of precedent on the Second in business, government, and their ment on fuel economy, and the need of Amendment and blocked the District of homes. the United States to conserve energy.’’ Columbia’s commonsense gun regula- We cannot turn the clock back 230 That is directly from the bill. tions. years. Here is the result. It has just been As my colleague Senator WHITEHOUSE As Justice Brennan said, asking announced that this program will raise outlined in the Judiciary Committee, judges to resolve legal questions by fuel economy to more than 50-miles per

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.226 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2325 gallon by 2025. I think the specifics severely limited. Such a radical change sent out to our retired miners, to their were 54 miles to the gallon. in law would hurt ordinary Americans, families, to their widows saying: Well, This would have been impossible in certainly their safety, and certainly we have given you another 90-day or 2007 when we were trying to pass the our communities. 120-day extension. That is not going to bill. We could not possibly understand, Let me say once again that who sits happen this time. That is my commit- 10 years hence, technical details of spe- on the Supreme Court matters. ment to them and their families. That cific automobile efficiency tech- The issues facing our country are is my commitment, basically, to the nologies and how they would develop in consequential, and they have a real- people who have depended on them. the decades to come. world impact on all of us. Justices on Really, each and every one of us in Federal agencies simply must play a the Supreme Court must understand this great country of ours should say role. We need their technical expertise that the Court’s decisions have real- thank you to them for the job that and ongoing involvement to ensure the world consequences for men, women, they have done. legislation we pass is implemented ef- and children across our Nation. We will fight this and we will con- fectively—as intended by Congress. Unfortunately, based on Judge tinue to fight this onslaught, and I In committee, I discussed Judge Gorsuch’s record at the Department of can’t figure out why. Gorsuch’s textualist view. This means Justice, his tenure on the bench, his In October, 16,300 of our Nation’s coal that he believes statutes should be in- appearance before the Senate, and his miners and their families were told terpreted only by ‘‘the plain meaning written questions for the record, I can- that they would lose their healthcare of the language.’’ not support this nomination. on December 31. Then we extended it. Combined, this judicial philosophy Mr. President, I yield the floor. Can you imagine an elderly person includes: One, limiting laws and stat- The PRESIDING OFFICER. The Sen- receiving a notice the first of Feb- ues to a dictionary definition that he ator from West Virginia. ruary, the end of January that says: selected. Two, reversing precedent to MINERS PROTECTION ACT Guess what, in 90 days, you are going say that agencies can’t interpret am- Mr. MANCHIN. Mr. President, I rise to lose it again because we gave an ex- biguous laws. Three, reinstating a legal today, as I have risen so many times, tension until April of this year. doctrine to further limit agency ex- basically for all of us to understand I can’t understand it at all. I don’t perts. Taken together, these three that we have the greatest country on know how anybody could be that inhu- points would require Congress to pass Earth, a superpower of the world. mane. bills so that they are either so specific If you want to know the backbone of The cosponsors are working with us. that they would be very limited in ef- the United States of America, look up We have held firm. The White House fect or so broad they would actually be in the stands. These are the United knows that we are serious about this. meaningless. Mine Workers of America, who made us The President himself has given me his For example, Senator COLLINS and I the country we are today. They gave us verbal support. I need him now to ei- have been working on legislation that the life we have and our freedom, and ther tweet or call Senator MITCH would require the FDA to ensure the for people not to understand that MCCONNELL, our majority leader, and safety of personal care products such makes no sense to me at all. tell him it is time to act. It is time for as we all use—shampoo, deodorant, cos- All I am asking is for my colleagues Mr. MCCONNELL, the Senator from Ken- metics, shaving creams, lotions. The to understand that the miners protec- tucky, our friend from my neighboring FDA does not do it in this country, but tion simply is this: Keep your promise, State, to act. That is all we are saying. they do it in Europe. Our bill asks the the promise that we made basically to President Trump, if you are listening FDA to evaluate the safety of the all the miners who have given their to me, if you are watching, please chemicals that are put in these prod- lives. They have given everything they tweet out: Mitch, help us. We need you. ucts. have—their blood, sweat, and tears ba- RECOGNITION OF THE MINORITY LEADER In committee, we had testimony sically for us to have energy for this The PRESIDING OFFICER. The about a shampoo that once used, hair country of ours. Now all they are ask- Democratic leader is recognized. fell out of the individual’s head and ing is: Can’t we at least keep our WELCOMING WEST VIRGINIA COAL MINERS many thousands of complaints had healthcare? Can’t we at least keep our Mr. SCHUMER. Mr. President, before been registered. pensions? We have worked for that. We I begin the substance of my remarks, I Congress does not have the expertise have negotiated for that. Every con- want to first welcome our coal miners to do the chemical evaluations, and tract they negotiated basically was a from West Virginia here, and I thank without deference to the FDA, the bill give-and-take proposition so that they them for the hard work they have done would have to be thousands of pages would be able to continue to have this through the years to make America long to cover every contingency for after they retire. the outstanding country that it truly every product made by hundreds of For a lot of our colleagues and com- is. companies, and that simply is not rades who have passed away, the wid- Also, I want to tell you, first, your workable. ows and families they leave behind are Senator from West Virginia—you don’t If Congress can no longer rely on still dependent on this healthcare. have a better fighter than in anyone Federal agencies, and if all laws can We have been fighting for this. On but him. Second, I am totally com- only be interpreted by limited dic- April 28, we are going to lose it again— mitted to making this happen for you, tionary definitions, then government April 28. I know the way things work and I will do everything in my power. would have no ability to regulate mar- around here. Someone will come down Our entire caucus—all 48 of us—are kets, defend against a financial crisis, and say: Well, we have negotiated a lit- completely behind you. protect workers, build safe roads, or tle extension. I thank my friend from West Vir- safeguard our environment. I want to make sure everyone is on ginia. We depend on the scientists, the bi- notice: We will use every vehicle we Mr. President, as each hour brings us ologists, the economists, the engineers, can, absolutely every pathway that we closer to the cloture vote on the nomi- and other experts to help ensure that can to make sure we will not leave here nation of Judge Neil Gorsuch to the our laws are effectively implemented. until we have our miners protected. Supreme Court and a potential rules So this is really a dastardly controlling Our miners will be protected with their change if that vote fails, I rise this mechanism. healthcare and their pensions. afternoon to entreat my friend, the Under the arguments proposed by All 48 Democrats are united. Many of majority leader, to step back from the Judge Gorsuch, this would no longer our colleagues on the Republican side brink. occur. have joined us or are willing to join us. As I and so many other of my col- Instead, only congressional action All we are asking for is that vote. leagues have made clear, we Democrats would be able to address these impor- I want to make it very clear: We will have principled reasons to vote against tant issues. These rules that agencies do anything and everything that we this nominee on tomorrow’s cloture would bring would have to be written must. We have been very patient, but I vote. First, he has instinctively fa- by Congress. And even that would be am not going to have another notice vored corporate interests over average

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They forced the majority last time a Republican-controlled Sen- the mainstream. leader to file more cloture petitions for ate confirmed the Supreme Court nom- He was selected from a list developed President Obama’s nominees than all ination of a Democratic President was by the very hard-right, special interest the cloture petitions filed from George 1895. Heritage Foundation and Federalist Washington through George W. Bush. So we can argue endlessly about Society. The Washington Post, after When we Democrats changed the where and with whom this all started. analyzing his decisions on the Tenth rules, however, we purposefully left the Was it the Bork nomination, which re- Circuit, concluded that Judge Gorsuch 60-vote bar for the Supreme Court in- ceived a vote in a Democratic Senate, may be the most hard, conservative tact because we knew, as the Repub- by the way? Or was it the obstruction Justice on the bench, to the right of licans know, that the Supreme Court is of judges under President Clinton? Was even Justice Thomas. different. Justices on the Supreme it when Democrats blocked a few It may seem abstract to many Amer- Court don’t simply apply the prece- judges under President Bush or when icans, but Judge Gorsuch’s judicial phi- dents of a higher court. They set the Republicans forced Democrats to file losophy matters a great deal. It will af- precedents. That is why Justices more cloture petitions in 5 years of fect dozens of decisions and decades of should be mainstream enough to gar- President Obama’s Presidency than jurisprudence that could have far- ner substantial bipartisan support. during all other Presidencies com- reaching consequences on the lives of If the majority leader breaks the bined? Was it Judge Garland or Judge average Americans. rules tomorrow—that is his choice—he Gorsuch? As Emily Bazelton in the New York would be forever unwinding that im- Wherever we place the starting point Times put it: ‘‘[T]he reality is that portant principle, erasing the last of this long, twilight battle over the ju- Judge Gorsuch embraces a judicial phi- shred of bipartisanship in the Senate diciary, we are now approaching its end losophy that would do nothing less confirmation process. point. We are nearing the final hour, than undermine the structure of mod- If my Republican friends think a fili- and the stakes are considerable. buster on Judge Gorsuch is so wrong ern government—including the rules After the cloture vote on Judge that they have cause to break the that keep our water clean, regulate the Gorsuch, Democrats will have been de- rules, I would remind them that almost financial markets, and protect workers nied Merrick Garland due to tactics we every one of them lined up behind the and consumers.’’ felt were unfair and Republicans will majority leader when he vowed mere If that philosophy becomes the ma- have been denied Judge Gorsuch be- hours after the death of Justice Scalia jority view on the Supreme Court, av- cause of tactics they think are unfair. that President Obama would not get to erage Americans are in big, big trouble. Our two parties have traded bitter The prospect concerns almost every fill a Supreme Court seat, despite 11 blows. In the tortured history of the months left in his Presidency. That Democrat here in this body, enough to Scalia vacancy, the debate has been was much worse than a filibuster. Even prevent cloture on Judge Gorsuch’s saturated with contradiction. But in a my friend, the Republican Senator nomination tomorrow. very real sense, even though each side from Tennessee, called it ‘‘audacious.’’ This leaves the majority leader and thinks their side is more right than the But I think Representative ADAM my Republican friends with a choice: other, neither side is happy with how SCHIFF of California said it best: Break the rules of the Senate or sit we got here. ‘‘When McConnell deprived President down with us Democrats and the Presi- Now we are standing on the brink of Obama of a vote on Garland, it was a dent to come up with a mainstream an irrevocable change to the way this nuclear option. The rest is fallout.’’ nominee who can earn enough bipar- The fact is, the Republicans blocked body conducts business. As the major- tisan support to pass the Senate. Merrick Garland using the most un- ity leader once said: Changing the rules We Democrats believe the answer precedented of maneuvers. Now we are is a bell that is very hard to unring. As the clock ticks steadily toward isn’t to change the rules; it is to likely to block Judge Gorsuch because tomorrow, what are we going to do? I, change the nominee, as Presidents of we are insisting on a bar of 60 votes. both parties have done when a nominee We think a 60-vote bar is far more in for one, would like to see us step back fails to earn confirmation. Instead, my keeping with tradition than what the from the brink. As the Democratic Republican friends seem intent on Republicans did to Merrick Garland. leader, I still hope that I can sit down breaking the rules for Judge Gorsuch The majority leader himself has stipu- with the Republican leader and find a and are trying to find reasons to jus- lated—this is MITCH MCCONNELL’s way out of this pernicious cycle. I be- tify it. quote: ‘‘In the Senate . . . it takes 60 lieve that as leaders of our respective The truth is, each side can blame the votes on controversial matters.’’ On caucuses, it is at least up to us to try other. We believe they are more in the the other hand, there is absolutely no for the sake of the Senate. The Repub- wrong. They believe we are more in the precedent, rule, tradition, or custom lican leader and I disagree on a great wrong. The game of pointing fingers that can justify what the Republicans many things, but we agree upon the and ‘‘they started it’’ can go back and did to Merrick Garland, none. importance of the Senate in American back and back to the very founding of The two are not equivalent. Over the life. We can decide today to commit to the Republic. long history of partisan combat over solving this problem. Each side can If my Republican friends think that judicial nominations, of course there is stop pointing fingers. Each side can lay they have to change the rules because blame on both sides. We don’t believe down their arms. Each side can put this blame game has gotten so far out the blame should be equally shared be- aside the resentments built up after of hand that Democrats will never pass tween Republicans and Democrats. years of trench warfare on nominees. a Republican-nominated Supreme The Republican Party has been far We can decide today to talk about a Court Justice, I would remind them of more aggressive in employing new tac- way out of this impasse instead of Justices Alito and Roberts, two con- tics and escalating old ones to fight the changing the rules. servatives who, nonetheless, passed the nominees of a President of the oppos- We both lost Supreme Court nomi- Senate, having met a 60-vote bar. That ing party. The Republican Party has nees. We shouldn’t also lose a long- was during a pretty contentious time been far more aggressive in their selec- standing rule of the Senate that en- as well. tion of judicial candidates, picking courages our two parties to work to- If my Republican friends think that judges who have an ideology closer to gether to fulfill one of the Senate’s what we Democrats did in 2013 was so the conservative extremes of American most important functions. wrong and that is the reason to break politics, while Democrats have tended So the option to sit down with us the rules, I would remind them that to select candidates closer to the cen- Democrats and talk about a new nomi- the only reason we changed the rules ter. nee who can gain sufficient bipartisan

VerDate Sep 11 2014 03:25 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.214 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2327 support remains on the table right asked to keep. It is time that we did mous. Judge Gorsuch is about as main- now. I hope my friend the Republican our job here in the Senate. Get this stream as you are going to find. leader thinks about where we are head- legislation passed in the month of Editorial boards from newspapers ed and takes a moment to let reason April. across the country, including USA and prudence prevail over rancor and The PRESIDING OFFICER. The Sen- Today, have written in support of his haste. ator from Indiana. nomination. Does anyone honestly be- Just as the majority leader holds the Mr. DONNELLY. Thank you, Mr. lieve that USA Today, which is far power to exercise the nuclear option, President. from a conservative newspaper, would he also has the power to avoid it. If the For the third time in the last year, I support confirming Judge Gorsuch to majority leader is willing to cooperate stand on the Senate floor in support of the Supreme Court if he were out of in a bipartisan way, if he is willing to thousands of retired coal miners and the mainstream? sit down with us in good faith and try their families across Indiana and the Now Senate Democrats are seemingly to find a way out, he will find an open United States. If Congress doesn’t act, creating new standards out of thin air door and an open mind, and maybe, many of the miners will lose their to justify this blatantly partisan ac- maybe we can for the moment avoid an health benefits at the end of this tion. According to the talking points, outcome that no Senator from either month. the nominee is now expected to tell the side wants to see. There are a lot of important issues Senate and the American people ex- I yield the floor. facing us here, but few have such high actly how he or she would rule on mat- The PRESIDING OFFICER (Mr. stakes. Retirees are receiving letters ters that may come before the Court, TOOMEY). The Senator from Ohio. telling them that their health insur- especially the instances where the ac- Mr. BROWN. Mr. President, I ask ance will soon run out. This is a prom- tivist base has a very keen interest. As unanimous consent for 3 minutes—1 for ise that was made and a promise we the Judiciary chairman rightly pointed Senator DONNELLY, 1 for Senator have to keep. We have less than 30 out, the standards set by Justice Gins- CASEY, and 1 for me. I thank Senator days. burg in her confirmation hearings that BOOZMAN for the time to talk for 3 min- Let’s do the right thing. Let’s do the it would be inappropriate for a nominee utes on the mine workers healthcare right thing and enact a permanent so- to offer hints or make commitments on law. lution. I strongly urge my colleagues matters that may come before the The PRESIDING OFFICER. Is there to take action immediately and ensure Court have been adhered to ever since. objection? that our retired miners receive the This leaves Senate Democrats with a Without objection, it is so ordered. health benefits that were promised to filibuster that lacks a reason. The mi- MINERS PROTECTION ACT them by the U.S. Government. nority leader has suggested that the Mr. BROWN. Thank you, Mr. Presi- I yield back, Mr. President. Senate abandon Judge Gorsuch’s nomi- dent. The PRESIDING OFFICER. The Sen- nation if cloture is not agreed to and I rise today on the seventh anniver- ator from Arkansas. ask the President to submit a new sary of the tragedy of the Big Branch Mr. BOOZMAN. Mr. President, the nominee. This demand rings hollow. Mine, where 29 mine workers were Senate is at a crossroads. Senate Here is the truth: If this nominee can- killed. There is no better way to ask Democrats at the behest of far-left ac- not get the Senate Democrats’ bless- this Senate to do the right thing on ex- tivist groups are leading the charge to ings for a vote, then no nominee put tending healthcare for mine workers break a 230-year-old precedent of con- forward by the President can. permanently. firming Supreme Court nominees by a Again, we are talking about a top We have seen far too many times simple majority vote. Why? rung in his profession. Judge Gorsuch where mine workers in Ohio, West Vir- Well, when you go down the list, is well qualified, and he was unani- ginia, Kentucky, and all over this there is only one reason. That reason is mously confirmed to the Tenth Circuit country, the retired mine workers or not based on substance or reality; it is Court of Appeals. As I mentioned ear- their widows get a letter in the mail purely partisan. Judge Gorsuch is emi- lier, he received the highest possible saying their healthcare is about to be nently qualified. That does not seem to rating after an exhaustive evaluation canceled. We kick the can down the be in dispute. His credentials are ex- from the American Bar Association. road for 3 or 4 months at a time. That ceptional. His resume is impressive. Senate Democrats failed to create is not acceptable. His judicial demeanor, professional outrage and controversy over Judge It is up to this Senate this month to competence, and integrity all exceed Gorsuch’s nomination because there is make sure that we fix this once and for what you expect in a nominee for the simply none to be found, but that all so that mine workers who did so highest Court in the land. didn’t stop them. They made this much for their communities and their Judge Gorsuch checks every box, so amazing 180-degree turnaround. Senate families and their country can be as- much so, that the American Bar Asso- Democrats who just last year pushed sured that they will have healthcare ciation gave Judge Gorsuch its highest for an immediate vote at the height of for the rest of their lives as President rating. The ABA’s assessment, mind a contentious Presidential election Truman promised. you, has been referred to by the minor- now appear to be fine with leaving that The PRESIDING OFFICER. The Sen- ity leader as the ‘‘gold standard’’ when seat vacant literally for years. Just ator from Ohio. it comes to evaluating a nominee’s fit- last year the minority leader sounded Mr. CASEY. Mr. President, I want to ness to serve on the Court. Senate the alarm about the judicial chaos a add to the remarks of Senator BROWN. Democrats must be concerned about deadlocked Court could lead to. He ap- We had a process; the Presiding Offi- Judge Gorsuch’s past then. Again, that pears to be no longer concerned about cer was a part of this, as well, in the is not the case. No one was able to dig that. By this logic, a vacancy on the Finance Committee getting the Miners up anything remotely resembling a Supreme Court for a few months would Protection Act through the Finance scandal in Judge Gorsuch’s past during be a devastating blow to democracy, Committee, 18 to 8. It should have been this process. You can’t manufacture a but one held vacant for years would be voted on by the end of the year so controversy where none exists. Nothing acceptable. This makes absolutely no these miners could have certainty with about Judge Gorsuch has come to light sense. The only explanation for it is regard to healthcare and pensions, and during this confirmation process that that Senate Democrats expect to be our government could keep our prom- could conceivably merit blocking a voting on a nominee put forth by a ise to those miners. vote on the nominee. Democratic administration, not one Our government has not kept its I have heard some Democrats try and put forth by President Trump. promise to coal miners, and some of argue that Judge Gorsuch is out of the Judge Gorsuch will be confirmed to them are here today in Washington. It mainstream. That hasn’t stuck, either. the Supreme Court this week. It is un- is about time our government kept our This is a judge who has been with the fortunate that we may have to break promise. They kept their promise to majority of the Tenth Circuit Court of longstanding precedent to do so, but their company, to their country, and Appeals 99 percent of the time, and 97 Senate Democrats actually are to every promise that they have been percent of his decisions were unani- blame for that.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.215 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2328 CONGRESSIONAL RECORD — SENATE April 5, 2017 With that, Mr. President, I yield the ing in the Senate at that time voted in ments get in the way of a judicial floor. support of Neil Gorsuch, including 12 seat—a nomination that should stand The PRESIDING OFFICER. The Sen- Members who are still serving in this far above political rancor. ator from South Carolina. Chamber today. His bipartisan support A year ago, Judge Gorsuch was serv- Mr. SCOTT. Mr. President, we heard has not stopped there. ing on the U.S. Court of Appeals for the famously that elections have con- Senator BENNET from Colorado says Tenth Circuit. He had no idea that he sequences, and over the next few days that Judge Gorsuch represents the best would find himself in the midst of a we will have an experiment in what I qualities of Colorado and that we need partisan battle. There is no question call ‘‘the physics of politics.’’ to fulfill our responsibility to this that this man has led an exemplary life For every action, there is an equal nominee. and deserves a fair vote. and opposite reaction. If the Democrats Senator DONNELLY, from Indiana, has We are, simply, asking for a fair use for the first time a partisan fili- said: ‘‘I believe he is a qualified jurist vote—a vote. Let us move past these buster of a Supreme Court nominee, we who will base his decisions on his un- political games and confirm a man who will have an equal and opposite reac- derstanding of the law and is well re- has earned this position, with a nearly tion. An unprecedented action is going spected among his peers.’’ flawless record, as one of the brightest to evoke an unprecedented reaction. From West Virginia, Senator judicial minds our country has to offer. Neil Gorsuch deserves to be con- MANCHIN acknowledged that, while he I suggest the absence of a quorum. firmed, and I want to share for the next may not agree with future decisions The PRESIDING OFFICER. The few minutes why. For more than 2 that will be made by Judge Gorsuch, he clerk will call the roll. months since the nomination was first also said, without question, that he has The senior assistant legislative clerk announced, we have seen that Judge ‘‘not found any reason why this jurist proceeded to call the roll. Neil Gorsuch possesses the qualifica- should not be a Supreme Court Jus- Mr. ENZI. Mr. President, I ask unani- tions and the temperament to serve as tice.’’ mous consent that the order for the our next Supreme Court Justice. Senator HEITKAMP, from North Da- quorum call be rescinded. While all nominations carry enor- kota, said, during her meeting with our The PRESIDING OFFICER. Without mous responsibility, this is arguably Supreme Court nominee, that Judge objection, it is so ordered. the most important position we are Gorsuch reinforced the importance of a Mr. ENZI. Mr. President, I rise to tasked with filling. We need someone judiciary that remains independent offer my support for the nomination of who is extraordinarily qualified, some- from the executive and the legislative Judge Neil Gorsuch to the Supreme one who will respect the foundation of branches of government. Court of the United States of America. our country, someone who has the Neal Katyal, the former Acting Solic- Several weeks ago, shortly after mental resilience to stay above the po- itor General under President Obama, President Trump announced this nomi- litical fray. Some of my friends on the said of Gorsuch that he is a first-rate nation, I came to the floor to say what left have called Judge Gorsuch unquali- intellect and a fair and decent man. an admirable choice he had made and fied, too conservative, and someone The judge’s work reflects his dedica- had known him for some time. who is simply not in the judicial main- tion to the rule of law. After meeting with Judge Gorsuch to stream. Last month, throughout his 3-day discuss his nomination and after re- Judge Gorsuch started his legal ca- confirmation hearing, Judge Gorsuch viewing his qualifications and after ob- reer by earning degrees from not one, provided detailed and thoughtful re- serving my colleagues on the Senate but two Ivy League schools—Columbia sponses that should have answered Judiciary Committee thoroughly vet University for his undergrad, Harvard every concern from committee mem- him, I am all the more convinced that Law for his juris doctor, graduating bers. As I watched, I was incredibly im- this man is eminently qualified to cum laude. Even as a Marshall Scholar, pressed with his depth of knowledge, serve as America’s next Associate Jus- he earned a doctorate degree from Ox- his genuine demeanor, and his obvious tice of the Supreme Court. ford. When one takes into account respect for the rule of law. He under- I was impressed that both of his Sen- these extraordinary educational stands that his job is not to make the ators introduced him to the committee achievements, it would be simply in- law. Let me repeat that because this for the hearing. I was kind of surprised comprehensible that anyone would con- seems to be an unusual experience—at that the biggest comments that I heard sider him unqualified. least it has been for me—to hear that a about the hearing itself, were that he His record on the bench is just as im- judge understands and appreciates that did not answer some of the questions pressive. We have heard these numbers his job is not to make the law, that his directly. As with previous Justices, so many times that we sometimes just job is not to alter the law but, as he ex- they do not answer questions directly gloss or glaze over these numbers, but pressed time and again, that he is com- when they are asked a theoretical these numbers are powerful indicators mitted to interpreting the law as it is question about some possible future of how successful he has been as a written. case that might come before them and judge. Out of nearly 2,700 cases, Judge One of his most memorable com- are without the details. Gorsuch has been overruled only ments from his hearing has left a last- Another reason that I am convinced twice—98 percent of his opinions were ing impression on me, and I hope it that he is very qualified is that the unanimous, further proving that he does on you as well. people with whom he went to school falls exactly square in the judicial He said: have all had good comments to say mainstream. He has received ‘‘well A judge who likes every result he reaches about him. The people he went to law qualified,’’ as my Senator from Arkan- is very likely a bad judge, reaching for re- school with have had good comments. sas just stated a few minutes ago, from sults he prefers rather than those the law The people who have been on the bar the American Bar Association, the compels. with him—in the legal arena—have had highest rating available for a Supreme In one sentence, Judge Gorsuch elo- good comments to say about him and Court Justice. quently summarized what we should so have the other judges with whom he Judge Gorsuch is also not new to the expect from our Supreme Court Jus- has worked through the years as he has nomination process. Just a few years tices, and it also gives insight into how moved up through the different proc- ago, in 2006, Judge Gorsuch was unani- he intends to serve once confirmed. esses. mously confirmed by the U.S. Senate After his extensive and exhaustive I am confident that he is qualified to to the Tenth Circuit. hearing, we clearly see, beyond a shad- be our next Justice because of his ex- Let me say that one more time be- ow of a doubt, that this man is more tensive judicial experience, his com- cause so seldom do we see the Senate than qualified for the appointment. mitment to the rule of law, and his acting in a unanimous fashion. This, Any argument to the contrary is based principled character. perhaps, is a moment of reflection that purely on political opposition. Neil Gorsuch’s first job out of law Judge Gorsuch, in just 2006, received a Today, the Senate stands on the school was a couple of blocks from unanimous vote for the Tenth Circuit. verge of breaking historical prece- here. Even back then, he was already Every single Democrat who was serv- dence. We have let political disagree- preparing to serve his country on the

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He per- reaches the conclusion that the exam- from folks in the Wyoming legal com- formed clerkships first for the U.S. ination yields, regardless of his own munity, from both parties, whom I Court of Appeals for the DC Circuit and personal beliefs. know and trust and whose opinions I later for Justices Byron White and An- As he said, ‘‘Personal politics or pol- value. thony Kennedy at the U.S. Supreme icy preferences have no useful role in Judge Gorsuch has earned a ‘‘well Court. judging; regular and healthy doses of qualified’’ rating—the highest rating After working in private practice and self-skepticism and humility about they award from the American Bar As- at the Department of Justice, in 2006 one’s own abilities and conclusions al- sociation. To give him this rating, the President George W. Bush nominated ways do.’’ ADA’s Standing Committee on the Judge Gorsuch to serve on the U.S. Judge Gorsuch is an adherent to, and Federal Judiciary conducted a peer re- Court of Appeals for the Tenth Circuit. defender of, America’s Constitution view of Judge Gorsuch’s integrity, pro- The Senate confirmed him by a voice and the separation of powers that docu- fessional competence, and judicial tem- vote. That is unanimous. ment prescribes. As he said, ‘‘Judges perament. Let me say that again because it is must allow the elected branches of gov- As children we all learn that you relevant to the misplaced—in my opin- ernment to flourish and citizens, might be able to fool your parents or ion—partisan rancor we are hearing through their elected representatives, our teachers, but you can never fool over this nomination. In 2006, only to make laws appropriate to the facts your peers. You especially cannot fool LINDSEY GRAHAM bothered to attend and circumstances of the day.’’ ones with whom you have worked long the Senate Judiciary Committee’s Throughout this nomination process, hours like most judges and lawyers are hearing to consider Neil Gorsuch’s during all of which Judge Gorsuch has known to do. You can’t fool your peers. nomination to the Tenth Circuit Court been under a political microscope, we They are the ones who see you at your of Appeals. This body—including then- have seen that he is a man of admi- best and at your worst. That is why it Senators Joe Biden, Hillary Clinton, rable character with a temperament is so remarkable that dozens of Neil and Barack Obama—was so confident that makes him well suited to serve as Gorsuch’s Harvard Law School class- about Neil Gorsuch’s character and his a Supreme Court Justice. mates—people representing many dif- qualifications to serve as a Federal We know he has a resilient character ferent political and philosophical per- judge that he was confirmed by the and thick skin—qualities important to suasions and who have known him for Senate without anyone even asking for any Justice—because we have seen his more than a quarter of a century— a recorded vote. demeanor and response to the criticism signed a letter supporting his nomina- With what was in essence an endorse- of his career and negative characteriza- tion to the Supreme Court. ment from three of the most influen- tions about some of his previous deci- Among our most important duties as tial political figures then serving in sions—very few of them, I should add. Members of this body is to carefully the Senate among my colleagues across We have seen his reaction in the face of vet all nominees who come before us. the aisle, I find some of the opposition accusations about his judicial inde- Never is that responsibility so stark to Judge Gorsuch and the questioning pendence. In the face of that—biting and so substantial than when our Na- of his qualifications somewhat baffling. disparagement about the work he has tion faces a vacancy on the Supreme I hope my colleagues in the Senate will spent his life trying to perfect—Judge Court. put aside the political bickering and Gorsuch has been respectful, remark- In November, millions of people went scorekeeping that have dominated ably patient, and resolutely committed to the polls and rejected the kind of Washington over the last several to upholding the ethical canons and tired, partisan bickering when they months and give Neil Gorsuch a fair conduct demanded of him as a jurist. voted for a change in Washington. vote, up or down, based on his quali- We have glimpsed Judge Gorsuch’s Those same voters went to the polls fications and his suitability for service character as he has spoken about the knowing that there was a vacancy on on the Supreme Court. people he values and those he strives to the Supreme Court and that whoever Since joining the Tenth Circuit, emulate. His legal heroes are people became the next President would Judge Gorsuch has been a busy man, like Justice White, who he said ‘‘fol- choose that nominee. doing exactly the kind of work that lowed the law wherever it took him For many weeks now, Judge Gorsuch makes him qualified for this nomina- without fear or favor to anyone’’; Jus- has been before us as that nominee. He tion. The Tenth Circuit exercises ap- tice Anthony Kennedy, who, Judge has undergone scrutiny under which pellate jurisdiction of Federal cases Gorsuch said, ‘‘showed me that judges most of us would wither. We have all originating in eight States that cover can disagree without being disagree- had time to examine his record. about 20 percent of America’s able’’; and Justice Scalia, who reminds I thank Chairman GRASSLEY, Rank- landmass. That jurisdiction does in- us ‘‘that the judge’s job is to follow the ing Member FEINSTEIN, and all of our clude my home State of Wyoming. words that are in the law—not to re- Senate colleagues who serve on the Ju- As a member of the Tenth Circuit, place them with words that aren’t.’’ diciary Committee for conducting such Judge Gorsuch estimates that he sat on Neil Gorsuch has told us that he has thorough and detailed nomination appellate panels considering approxi- also looked closer to home, to his fam- hearings that provided us ample oppor- mately 1,800 criminal cases and 1,200 ily, to shape his character: his mother, tunity to examine Judge Gorsuch’s civil cases. The list of citations of case who he said ‘‘taught me that headlines qualifications and temperament. decisions he has authored is a single- are fleeting, but courage lasts’’; his fa- I believe there is only one logical spaced, 21-page document. After hear- ther, who he said showed him that conclusion to reach after all of this ex- ing all of those cases and drafting all of kindness ‘‘is the great virtue’’; his pa- amination; that is, that Judge Neil those opinions, even Judge Gorsuch’s ternal grandfather, who Judge Gorsuch Gorsuch is supremely qualified for and detractors have criticized only a mere said taught him that ‘‘lawyers exist to capable of the solemn and mighty task handful of the hundreds of opinions he help people with their problems, not of serving as the next Associate Justice has authored. the other way around.’’ of the Supreme Court. I am confident that Neil Gorsuch is Neil Gorsuch has demonstrated his I urge my colleagues to join me in qualified to be a member of the Su- commitment to the law, his scholar- supporting this confirmation. preme Court because of his steadfast ship, and his temperament befitting I yield the floor. commitment to the rule of law. The that of a judge. He is eminently quali- I suggest the absence of a quorum. many opinions he has written are fied to be a member of the Supreme The PRESIDING OFFICER. The known for being clear and easy to un- Court—not in my opinion—that is what clerk will call the roll. derstand. But, most importantly, his the judges have said. The senior assistant legislative clerk opinions reflect his respect for fol- I am not the only one who believes proceeded to call the roll. lowing the law as it is written and for this. My office has received hundreds of Mr. GARDNER. Mr. President, I ask applying and adhering to judicial calls and letters from my constituents unanimous consent that the order for precedent. He is a judge who applies in Wyoming urging the confirmation of the quorum call be rescinded.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.218 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2330 CONGRESSIONAL RECORD — SENATE April 5, 2017 The PRESIDING OFFICER. Without We know, in this instance, that the licans, Democrats—believe he is well objection, it is so ordered. American people decided who the Su- qualified and should be confirmed, that Mr. GARDNER. Mr. President, it has preme Court Justice would be. he deserves an up-or-down vote. People been an eventful week already. We In 2006, Judge Neil Gorsuch was nom- like Democratic Governor Bill Ritter have seen a number of Members come inated to serve on the Tenth Circuit believe that Judge Gorsuch should to the Senate floor and debate the Court. A dozen sitting Members of this have an up-or-down vote and be con- qualifications of Judge Neil Gorsuch, Chamber didn’t object to his nomina- firmed. the President’s nominee to the highest tion then. They didn’t oppose him. Some people find Judge Gorsuch to Court, the U.S. Supreme Court. Many They didn’t come and register their be so unreasonable or so unfit to serve have come to the floor talking about ‘‘no’’ vote. In fact, nobody even showed on the High Court, they might find it his high qualifications—the fact that up at his confirmation. LINDSEY GRA- hard to believe that the 2008 cochair of he has the highest American Bar Asso- HAM was the only one. That is how ob- the Democratic National Convention is ciation rating; the fact that he has the jectionable he was then. So either of a supporting Judge Gorsuch’s confirma- support of the 2008 cochair of the couple of things has happened: Nobody tion. Democratic National Convention; the did their work then to find out what Jim Lyons, an attorney and close fact that Neal Katyal, a high-ranking kind of judge he was going to be or friend of President Bill Clinton, sup- former official in the Obama adminis- they have decided that the politics ports the confirmation of Judge tration, supports the confirmation of have changed. Gorsuch. Neal Gorsuch. To me, the most egregious part of They know his record. They have re- We have had others come to the this debate is that the politics of the viewed the cases that the opposition floor, of course, and express their oppo- time are demanding that there be abso- has stated that they find so egregious, sition. We have had them come and ex- lute obstruction for the first time in and they still believe he is worthy of press their opposition to an individual over 230 years of a Supreme Court Jus- confirmation to the Court. who has proved himself to be a main- tice, trying to defeat a Supreme Court The standard that has been set by stream judge, who has proved time and Justice with a partisan filibuster for those who oppose Judge Gorsuch is a again that he has the respect of his col- the first time in two centuries, of a standard that simply says: No Justice leagues on the Tenth Circuit Court— judge who agreed 99 percent of the time could be confirmed. Why? We know the bench of the Tenth Circuit Court, with the opinions of the court. Ninety- that because Judge Gorsuch’s creden- as well as circuit courts around the nine percent of the time, his opinions tials, his academic background, his ju- country, and that he has the respect were made with a majority of the dicial history, his temperament, his and admiration of the Justices of the court; 97 percent of the time, they were qualifications, his ratings show that he U.S. Supreme Court, where Judge made unanimously. is more than able to serve and deserv- Gorsuch clerked for Justice White, the This is an individual who has out- ing to serve on the Supreme Court. last Coloradan to be on the Nation’s standing legal credentials: Harvard, There is a certainly a difference in High Court, and where he clerked for Columbia, and, most importantly, time philosophy that has been presented sitting Justice Anthony Kennedy. spent at the University of Colorado. here, a difference of philosophies that Judge Gorsuch has been known and He is a fourth-generation Coloradan. some people believe that a judge should has become known as a feeder judge— I think an old joke of the late Justice just be a judge who follows the law or somebody who provides clerks to the Scalia was that four of the five bor- Supreme Court because they under- rules and makes a decision based on oughs in New York have their own Su- stand the quality and caliber of Judge where the law takes them, but there preme Court justice. Wouldn’t it be Gorsuch’s work. are people who believe that a judge We know Judge Gorsuch was a part of nice if we had a Supreme Court Justice somehow has to be maybe a focus 2,700 opinions—decisions decided 99 per- from west of the Mississippi River, an- group of opinion or policy preferences, cent of the time with the majority of other western voice on the Supreme that a judge should be somebody who his court; we know that 97 percent of Court, a judge who comes from a cir- puts their thumb on the scale of justice that time, these decisions were unani- cuit court that represents 20 percent of to reach an outcome that is preferred mous. We know about his record as it the landmass? If you are a Westerner by a political party. That is not what relates to being reversed or overturned. and you have a choice of putting a our Founders had in mind when they We know that our colleagues who, for judge on the Supreme Court who is fa- wrote the Constitution. That is not some reason, are opposing Judge miliar with Tribal law issues, a judge what justice is about. Gorsuch continue to come to the floor who is familiar with water issues, a Judge Gorsuch believes that you take and talk about the reasons they appar- judge who is familiar with public land an opinion, you take a decision where ently can’t support Judge Gorsuch: be- issues, that is a pretty good pick for the law takes you, where the law leads cause he will not violate judicial eth- the High Court, to represent a vast you as a guardian of the Constitution. ics—the ethics judges are expected to part of America that is underrep- He understands the separation of keep; because he will not preview how resented on the Nation’s High Court. powers, but apparently that is not good he would rule under a certain fact cir- This institution can seem pretty puz- enough for some. They want an activist cumstance. George Washington himself zling at times because you consistently judge, but I hope that over the next could come down from a mountaintop hear the outcry for bipartisan support: several hours and the next few days and would be rejected by the U.S. Sen- Let’s work together. Let’s have bipar- that our colleagues will come realize ate to be a Supreme Court Justice. tisan support. Then the President that those who know him best believe It is pretty incredible to see and hear nominates a judge who has strong bi- that he is qualified, that he deserves an the arguments that have taken place— partisan credentials from the people up-or-down vote, that a judge who some lasting all night—because some who know him the best. Look, most votes 99 percent of the time in the ma- of these arguments are nothing more people in Washington, DC, most people jority agrees with them. than sour grapes. Some of these argu- in this Chamber have known Neil I look forward to our conversations ments are nothing more than that two Gorsuch for just a couple of months as we confirm Judge Gorsuch at the wrongs must make a right, in their since the time of his nomination. Most end of this week. minds. They criticize Republicans for conversations people in this Chamber The PRESIDING OFFICER. The Sen- invoking the Biden rule or the Schu- have had with Judge Gorsuch have con- ator from Rhode Island. mer rule, and then they decide because sisted of an hour or two at a judicial Mr. REED. Mr. President, there are of that, they are going to demand the confirmation hearing or perhaps when few moments in the life of a nation seat be held open—not confirmed—be- he visited the office prior to the hear- when the people are presented with a cause they believe it was taken from ing. That is the extent of their rela- single choice that directly affects what them. In their mind, if you do two tionship and their knowledge and their equality before the law will mean for things that are wrong, it must be a understanding of Judge Gorsuch. the next generation. The opportunity right. We have taught our children But the people who know him best— to grant a lifetime appointment to the that is not true. the people out in Colorado, Repub- Supreme Court of the United States is

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.227 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2331 one of those moments. The next Su- Products Co. He wrote that judges national security concerns that have preme Court Justice will break the 4- must enforce the specific text of the resulted, with hostile powers, such as to-4 deadlock that has constrained the Constitution, but he went further than Russia, seeking to influence our de- Court since the passing of Justice that, urging judges to apply stricter mocracy. In order to satisfy partisan, Scalia and this body’s unprecedented scrutiny to laws that impede the effec- ideological ends, the Court has left us refusal to act on Chief Judge Merrick tive operation of government and chan- powerless to limit the purchase of po- Garland’s nomination to fill that va- nels of political participation. Judges litical influence or even to know who is cancy during the final year of Presi- should likewise demand the most com- spending all this money on our politics. dent Obama’s second term. pelling justifications for laws that sin- Judge Gorsuch’s record strongly sug- Before discussing the pending nomi- gle out powerless, discrete, and insular gests that he would contribute to the nee’s merits, we must consider this minorities. These principles deeply in- Roberts Court’s partisan, pro-corporate nomination in its historical context. fluenced future scholars and judges and orientation. Indeed, the very same Chief Judge Garland, I believe, was one laid the groundwork for modern con- business groups that spent $7 million in of the most qualified nominees for the stitutional law as we have understood dark money to block Chief Judge Gar- Supreme Court in generations. After it since the Warren Court. land’s nomination to this seat also meeting with him and reviewing his These are the decisions that struck spent $10 million on ads and lobbying record, I had no doubt that he easily down race and gender segregation, pro- efforts to support Judge Gorsuch’s would have earned bipartisan support claimed the rule of ‘‘one person, one nomination. It stands to reason that and cleared the 60-vote threshold, as vote,’’ enshrined the right to remain si- these groups believe that Judge did each of President Obama’s prior lent and to counsel in police custody, Gorsuch shares their right-wing beliefs nominees to the Court. Yet my col- and recognized the fundamental right and will benefit their interests. leagues on the other side of the aisle of a person to marry for love, regard- The Judiciary is supposed to be above refused even to meet with him. His less of race or gender. politics. Judges write opinions to sat- treatment was disgraceful. This tradition stands in stark con- isfy due process and establish prece- Rejecting the treatment Chief Judge trast to the new wave of hyper-partisan dents that will guide future decisions. Garland received, I met with Judge legal activism we have seen manifested The opinion-writing process is not in- Neil Gorsuch and shared a thoughtful in our courts in recent years. This judi- tended to be an arena for judges to pur- conversation. I found him to be intel- cial activism attempts to disguise sue self-serving or ideological ends. ligent and articulate but at the same judges’ personal political agenda by ar- That is why I am deeply concerned time, he was not particularly forth- guing that they are merely applying with Judge Gorsuch’s clear willingness coming about his judicial record, which pure, indisputable, mechanical logic. on the Tenth Circuit to go beyond contains many distressing examples of This philosophy goes by varied names: precedent and the facts of a case before inconsistency and ideological rigidity. textualism, originalism, strict him to advance arguments designed to Nothing in our conversation or his tes- constructionism, and so forth. But in bend the law to his ideology. timony before the Judiciary Com- the main, it is an ideological prism to In Riddle v. Hickenlooper, Judge mittee convinced me that he plans to disguise traditional judicial discretion, Gorsuch joined a panel decision that moderate his positions to dispense expand the law without limits to ben- struck down uneven contribution lim- equal justice under the law. I am deep- efit politically powerful majority its in Colorado election laws. He then ly concerned that granting him a life- groups and corporations, and constrict wrote separately to advocate that all time appointment to be a final author- the law for the minorities, workers, campaign finance laws should be sub- ity on the meaning of the Constitution and the politically powerless. ject to greater constitutional ques- would further tip the scales of justice We know too well the devastating ef- tioning. This was both unnecessary to in favor of corporations and the power- fects of this line of thinking as it has decide the case, and a clear signal by ful at the expense of working people manifested itself in the Roberts Court. Judge Gorsuch that he would work to and the powerless. Therefore, I cannot In the case of Shelby County, the Court abolish what remains of laws limiting support Judge Gorsuch’s nomination to disregarded congressional intent and the flow of anonymous corporate the Supreme Court of the United ruled 5 to 4 that the preclearance for- money into our elections. States. mula that helped millions of African This is a pivotal time for our Nation, Americans secure the vote in States Judge Gorsuch has reached furthest when the people’s trust in the judiciary with a history of discrimination was no beyond precedent when doing so would is in decline, attributed by many to the longer necessary. This freed several deconstruct Federal agencies that con- streak of 5-to-4 decisions of the Roberts States to enact severely restrictive strain corporations, and protect work- Court that have consolidated corporate election laws that clearly benefit one ers, consumers, and the environment. power. Given how radically the Court party and racial group at the expense This confirmation process has intro- has changed many of our institutions of another, and courts are still working duced many to a relatively obscure over just the past decade, it is difficult to resolve these imbalances. doctrine of administrative law called to overstate the importance of under- In Hobby Lobby, with an intellectual Chevron deference. The Chevron case standing a nominee’s judicial values framework formed in part by Judge stands for the essentially uncontested and the human element the nominee Gorsuch, the Court ruled 5 to 4 to give proposition that, when someone sues a will bring to the Court. for-profit corporations religious rights Federal agency and a reasonable person I have applied the same, simple test to opt out of providing comprehensive could read the statute at issue more to each Supreme Court nominee health coverage for their employees. than one way, the court should defer to throughout my time in this body. It is This has opened the door for corporate the agency’s reasonable interpretation not enough for a nominee to display in- religious challenges to an untold num- of the law it is charged with enforcing. tellectual gifts or to possess a textbook ber of duly enacted restraints on cor- This case has long been a target for at- understanding of American history and porate excess, from child labor laws to tacks by corporations and their advo- jurisprudence. Judicial decision mak- basic protections against employment cates because it levels the playing field ing at the Supreme Court is not an as- discrimination. in cases between massively well-funded sembly line where mechanical applica- In Citizens United, as we all too well corporate lawyers who want no regula- tion of the law will resolve every dis- know, the Court broke with decades of tions, and agencies charged with bring- pute. precedent, the facts of the case, and ing big business into compliance with Rather, the nominee must dem- common sense to create a constitu- the law. Judge Gorsuch has written onstrate that she or he will use judicial tional right for corporations to spend strongly against this principle, but discretion to give meaning to the text unlimited money on our elections. In- even Justice Scalia acknowledged the and spirit of the Constitution. deed, our political system is still reel- sound reasoning behind the Chevron Justice Harlan Fiske Stone laid the ing from billions of dollars in anony- case. foundation for this model of judicial mous political expenditures, and we are Judge Gorsuch would seemingly re- review in United States v. Carolene only now beginning to recognize the turn us to the old days when powerful

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.228 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2332 CONGRESSIONAL RECORD — SENATE April 5, 2017 companies could pollute the environ- The text of RFRA provides that the this context could exercise funda- ment, scam their customers, and dis- ‘‘government shall not substantially mental religious rights, much less that criminate against their employees as burden a person’s exercise of religion its religion should excuse it from com- long as they could pay enough lawyers even if the burden results from a rule plying with duly enacted laws that pro- and get the right judge when the Fed- of general applicability.’’ The legisla- tect real people, would have been out- eral agency sues. In the case of Gutier- tive history of RFRA is both recent rageous to the Framers and the Con- rez-Brizuela v. Lynch, he took the very and clear. In the case of Employment gress that passed the Dictionary Act. unusual step of writing a concurrence Division v. Smith, decided in 1990, the Judge Gorsuch knew or should have to his own majority opinion in order to Supreme Court rejected two peyote known the ahistorical nature of his de- attack Federal agencies and make the users’ claim of a religious right to con- cisions. We have yet to see the full case that decades of Chevron precedent sume the drug on grounds that the scope and consequences of his vision of should be overturned. It is highly un- Constitution permits some burdens on a near-unlimited right of corporations usual, after you have written the ma- religion if the aim of the law is secular to opt out of our laws, but we can jority opinion at the circuit level de- and generally applicable. When Con- imagine the harmful choices and dif- ciding the case, that you would then gress debated RFRA in 1993, the House ficult litigation on this point that may step aside and write a separate epistle and Senate reports showed explicitly lie ahead. I, for one, have deep concerns advancing your ideas. that Congress’s aim was ‘‘only to over- about any judicial philosophy that He wrote in language that is familiar turn the Supreme Court’s decision in bends so far in the direction of cor- to those of us in the political branches Smith’’ and to require courts consid- porate interests and completely ig- of government, but out of the ordinary ering RFRA cases to ‘‘look to free exer- nores tens of thousands of real people for a Federal judge. He compared Fed- cise cases decided prior to Smith for in the process. eral agencies to a ‘‘tyrannical king’’ guidance.’’ For as much as Judge Gorsuch’s and a ‘‘behemoth’’ and a ‘‘colossus’’ No Supreme Court case prior to this record shows that he is willing to en- and laid out his constitutional theory time had ever granted corporations re- tertain new or arcane legal theories to for challenging Chevron in the Su- ligious rights and nothing in RFRA’s reach a better outcome for corpora- preme Court. None of this analysis was legislative history suggested that tions and the powerful, it is also clear necessary to the case before Judge Congress’s intent was to do so. Not- that he will go to no such length to Gorsuch. Yet in writing this and simi- withstanding these facts, Judge vindicate the rights of minorities, the lar opinions, Judge Gorsuch signaled Gorsuch joined his colleagues to hold disabled or workers. his willingness to break from precedent that a for-profit corporation’s religious One example highlighted during and contort the law to fit his ideolog- beliefs may overcome its employees Judge Gorsuch’s confirmation hearing ical vision of how the system should own consciences and rights to com- is his record on lawsuits under the In- work to benefit the powerful and his prehensive health coverage. He relied dividuals with Disabilities Education preferred interests. on an 1871 law called the Dictionary Act, or IDEA. The purpose of IDEA is My colleagues on the Judiciary Com- Act, which provided that in certain cir- to ensure that students with disabil- mittee spent a great deal of time and cumstances, Congress’s use of the term ities receive a public education that is effort questioning Judge Gorsuch and ‘‘person’’ can also mean businesses, tailored to their special individual trying to elicit responses about his ‘‘unless the context indicates other- needs. In the 2008 case popularly re- basic judicial philosophy. Unfortu- wise.’’ This reference to context means ferred to as the Luke P. case, however, nately, his answers were largely non- that Judge Gorsuch had discretion to Judge Gorsuch ruled against the par- responsive and failed to address many use history and common sense to reach ents of a severely autistic child who of our concerns about his record. the conclusion that corporations don’t sought reimbursement for the cost of a Judge Gorsuch’s record and writings have religious views, but people do, and specialized school because their son shows he believes judges should always RFRA was enacted to protect real peo- was not making appropriate progress interpret the Constitution and other ple’s rights. But instead, he took this in the public school. In denying the laws from the perspective of those who opportunity to endow corporate enti- parents relief, Gorsuch reinterpreted first drafted the law, regardless of how ties with religious rights that could IDEA to require that public schools the world looks today. help them escape the law in untold cir- need only provide de minimis, or The Founders and Framers, however, cumstances. nonzero educational progress to chil- did not leave us a blueprint to answer Let’s explore for a moment Judge dren with disabilities. Not only did every new question of law. Nor did the Gorsuch’s belief that judges should al- Judge Gorsuch go beyond the facts of delegates to the Constitutional Con- ways give meaning to the original in- the case to close any path to relief for vention demand that all future judges tent of a law’s draftsmen. In this case, the family, but in this and similar be ‘‘originalists.’’ The laws and values what is a corporation and how does it cases, he attempted to set a legal of 1789 would shock and alienate—as operate? In 1787, there were roughly six precedent for future cases that effec- they should—many Americans today, non-bank corporations in America, and tively eviscerated the meaning and particularly women and racial and their powers were severely restricted in protections of IDEA. other minority groups. Worse yet, a the wake of colonists’ experiences with Fortunately, the Supreme Court in- judge attempting to resolve a case as if the abusive practices of the Crown and tervened. In a rare unanimous decision it were the 18th, 19th, or even 20th cen- royal English corporations. Around the released, ironically, on the second day turies may wittingly or unwittingly time that Congress passed the Dic- of Judge Gorsuch’s confirmation hear- use that construct to inject into the tionary Act, corporations were harshly ing, the Court rejected Judge Gorsuch’s case the judge’s own view of how the regulated by law to achieve specific narrow reading of the law. In fact, the government ought to work. commercial ends and nothing more. Chief Justice did not mince words when The Hobby Lobby case is a key exam- There were legal limits on the capital it came to Judge Gorsuch’s lower bar ple of this ideological inconsistency at they could raise. Many could not oper- for schools. He said Judge Gorsuch’s work to the detriment of less powerful ate outside their state of incorpora- model would hardly provide ‘‘an edu- Americans. This case concerned, as I tion. They were often prohibited from cation at all’’ for children with disabil- noted earlier, whether a for-profit cor- owning property that was not nec- ities, and that ‘‘receiving instruction poration could refuse to comply with essary for specific commercial activi- that aims so low would be tantamount the Affordable Care Act’s mandate that ties. Most were even forbidden to en- to ‘sitting idly . . . awaiting the time employers provide health coverage, in- gage in any activity that was not ex- when they were old enough to drop cluding contraceptives, to over 23,000 plicitly enumerated in their corporate out.’ ’’ This stark, unanimous rebuke of employees on the ground that doing so charters, and a real person could sue to Judge Gorsuch’s view of the law in the would conflict with the corporation’s render a corporation’s action a legal middle of his confirmation hearing was purported religious rights under the nullity if it were not expressly in fur- yet another reminder that this nomi- Religious Freedom Restoration Act, or therance of the corporation’s business nee is outside of the judicial main- RFRA. mission. The idea that a corporation in stream.

VerDate Sep 11 2014 01:30 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.229 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2333 But Judge Gorsuch has not just re- our Nation, it is vital that the next ment is about the election.’’ But Presi- stricted his reading of the law in the Justice of the Supreme Court be will- dent Obama did do it. Judge Garland is educational context. In TransAm ing and able to elevate the rights of the not just a fine jurist, he is an excep- Trucking, Inc. v. Administrative Re- people above the prevailing political tional human being. Judge Garland’s view Board, a majority of the Tenth view of the wealthiest and most power- lifelong commitment to public service Circuit held that a truck driver was ful when the two are in conflict. I can- is well known. He deserved far better wrongfully fired when he drove away not conclude that Judge Gorsuch meets treatment by the Senate majority. from his trailer to find help after being this standard. Therefore, I will oppose Judge Garland was denied a hearing. stranded for hours in subzero tempera- his nomination and I would urge my Many of my Republican colleagues tures in a vehicle with no heat and a colleagues to do the same. wouldn’t even give him the courtesy of rig with failed brakes. Judge Gorsuch With that, I yield the floor. a meeting, and he never got a vote, disagreed so sharply that he penned a The PRESIDING OFFICER (Mr. which was a disgrace. It is an injustice dissent. Under his strict textualist GARDNER). The Senator from New Mex- that needs to be remedied before I view of the law, the driver was pro- ico. could ever consider voting for Judge tected from firing for ‘‘refusing’’ to op- Mr. UDALL. Thank you, Mr. Presi- Gorsuch. erate in dangerous conditions, but the dent. President Trump could fix this. He word ‘‘refusing’’ could not be inter- We have many important responsibil- could make a commitment to nomi- preted to include driving away to get ities as U.S. Senators. We often have to nate Judge Garland to the next vacant potentially lifesaving help, rather than make very difficult decisions. Deciding seat on the Court. It would be the right freezing to death. Again and again, to vote against cloture and confirma- thing to do. I have been very open that Judge Gorsuch’s record shows he is ca- tion for Judge Gorsuch has been a I believe the Senate has become dys- pable, but either unwilling or unable to tough decision. functional, but what the majority did give the same benefit of the doubt to Since coming to the Senate, I have last year was unprecedented. Things average working people as he does to been a strong advocate for reforming went from bad to rock bottom. their employers, their landlords and the rules, to curb abuses to ensure the Being senatorial used to mean some- the most powerful among us. body can function, and to make sure thing. The Republican majority has Mr. President, Constitutional law is that the President’s nominees are shattered that tradition for purely par- not concerned with easy cases or sim- treated fairly. I believe our constitu- tisan reasons. In fact, the majority ple answers. We have constitutional tional duty to provide advice and con- leader has publicly stated: ‘‘One of my guarantees to inalienable rights be- sent is one of the most important of all proudest moments was when I told cause we know that majority rule of our responsibilities as Senators, es- Obama ‘you will not fill this Supreme sometimes gets it wrong, particularly pecially for nominees to our Nation’s Court vacancy.’’’ That is a violation of when it comes to the rights of the mi- highest Court, and I believe that with- the U.S. Constitution’s requirement nority. That is what makes the quali- holding consent should be rare—rare that the Senate provide advice and fications for a seat on the Supreme but not unheard of. Sometimes cir- consent. Court fundamentally different from cumstances will be so extraordinary Now, in 2017, Senator MCCONNELL has any other Federal or State court in the that filibustering a Supreme Court guaranteed Judge Gorsuch’s confirma- Nation. A judge’s job is to apply prece- nominee is necessary. The gang of 14 tion, even before he had his hearing. dent, be faithful to the law, and exer- knew this. That was the group of 14 For him the outcome has been a fore- cise measures of empathy and common Senators who forged a compromise in gone conclusion. So we see there is no sense to dispense justice. A Supreme 2005. Three of them are still in the Sen- advice and consent now, either, just Court Justice’s job is to decide when ate. Their agreement allowed some the exercise of power to block a nomi- the law is wrong and must be changed controversial judicial nominees to be nee from another party. But President in order to fulfill the promise of the confirmed to appellate courts, but it Trump could help heal that deeply par- Constitution. The Supreme Court can- also allowed the Senate to avoid trig- tisan wound inflicted by his party. not perform this function unless the in- gering the nuclear option, and it ad- There is still time for both sides to dividual Justices bring to it the values dressed how they would weigh future come together and work out an agree- and willingness to be the last resort for nominations. ment with bipartisanship and fairness the powerless when the system fails. The gang of 14 agreed to the fol- first, and put aside the bitter partisan They must be able to make unpopular lowing: ‘‘Nominees should be filibus- fighting that has divided the Congress decisions and side against political and tered only under extraordinary cir- and our Nation. cultural majorities. They must be able cumstances and each signatory must There is also a pragmatic reason for to reject precedent when the estab- use his or her own discretion and judg- President Trump to appoint Judge Gar- lished way of doing things no longer ment in determining whether such cir- land to the next seat. President Trump safeguards the fundamental protec- cumstances exist.’’ needs to ask himself if he wants to be tions to which every American is enti- I think that is a good standard, to subject to the McConnell precedent. Is tled. They must do this for the least only filibuster a nominee under ex- he willing to accept that he only gets and most derided among us, because if traordinary circumstances. Unfortu- to appoint Justices for 3 years? If a Su- they do not, there is nowhere else to nately, in my evaluation of Judge preme Court vacancy occurs in 2020, turn. They have the final word on the Gorsuch’s nomination to the Supreme does President Trump understand that meaning of the law. Court, I can’t think of more extraor- it is not his vacancy to fill? That is the I take Judge Gorsuch at his word dinary circumstances. absurd standard that Leader MCCON- that he respects the law and ap- First, this wasn’t President Trump’s NELL has established. If the Republican proaches this nomination with serious- seat to fill. Justice Scalia died on Feb- majority is dead-set on changing the ness and a sense of responsibility. A ruary 13, 2016. President Obama still rules to jam this nominee through thoughtful reading of his work as an had nearly 1 year at that point to serve after all that has happened, then we advocate and a judge reveals that he in his term. So President Obama ful- need to talk about this. has a consistent predisposition to favor filled his constitutional duty. He nomi- Perhaps the best thing to do in order corporations and the powerful over nated one of the most qualified nomi- to ensure the President understands human beings and the powerless. To be nees in the history of the Court, Judge the gravity of the Republicans’ ob- sure, there is nothing inherently wrong Merrick Garland. Shortly before Judge struction of his predecessor is to go when a corporation, or a landlord, or Garland was nominated, Senator ahead and put the McConnell rule in an employer or a President of the HATCH, one of our most respected Re- place for President Trump. Let’s estab- United States wins a case in a court of publican colleagues on the Judiciary lish in our rule that President Trump law. The system often works as it Committee, said Judge Garland would only gets 3 years to appoint Justices. should even when it hands new vic- be a great pick. Senator HATCH went on We can do this with a simple standing tories to those who seldom lose at any- to say that President Obama ‘‘probably order. The majority leader believed thing. But at this moment in the life of won’t do that because this appoint- President Obama should only have 3

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I have a standing order drafted that preme Court changes people’s lives. Its We have seen this play out over the would do that, and I hope an agreement decisions stand for generations. It is past 2 months as President Trump has can be reached to rectify the injustice essential that Justices understand not twice rolled out unconstitutional trav- that was done to Judge Garland, and I only how these issues impact our de- el bans only to have Federal courts hope that Republicans will decide mocracy but how they affect people’s stop their implementation. The Presi- against using the nuclear option. But if lives, and that they consider them free dent’s reaction was telling. He lashed that doesn’t happen, I will call on the of ideology. out at the ‘‘so-called ‘judge’ ’’ and Senate to adopt this standing order so Our meeting and the Senate hearings urged his Twitter followers to blame that President Trump was bound by were Judge Gorsuch’s opportunity to not only the judge who stayed a travel the same restrictions as President convince me that he will be an inde- ban but the entire Federal court sys- Obama. pendent mind on the Court. He failed tem should an attack occur. If we are going to change the rules to answer questions that were critical Judge Gorsuch wants us all to know tomorrow, then let’s get the Repub- for me—his position on the rights of that he found these attacks on the ju- lican majority on record. Are they pre- working mothers, whether women can diciary ‘‘disheartening.’’ He told me as pared to hold President Trump to the choose their own health care decisions, much when we met. He made a point to same unjust standard as President LGBTQ rights, and dark money in our use the same language when in meet- Obama? We can find out. elections, just to name a few. But what ings with a number of my colleagues. I found most troubling is that he failed Mr. President, I ask unanimous con- Personally, I would say that these at- to convince me that he would be an sent to have printed in the RECORD the tacks on the judicial branch are more text of my standing order at the end of independent voice on the Court. In just the last couple of months, the than disheartening—they are appall- my remarks. ing, and I would say they are dan- Unfortunately, Judge Garland’s un- President has taken constitutionally questionable actions affecting Muslim gerous. acceptable treatment isn’t the only Judge Gorsuch is, by all accounts— immigrants, freedom of speech, and re- concern that guides my decision to and in my opinion—a good man, but as ligion. The FBI is investigating his vote against Judge Gorsuch. Like I have reviewed Judge Gorsuch’s record campaign, and he faces scrutiny about many things in the Trump administra- whether his company is benefitting and previous rulings, I have to say that tion, there is no shortage of extraor- from his office. All of these issues I find them disheartening. dinary circumstances. Perhaps the I find it disheartening that he has could well come in front of and before most serious is the cloud of suspicion regularly sided against everyday Amer- the Supreme Court. It is more impor- over his Presidency. icans’ rights, including women’s repro- tant now than ever before that we have U.S. intelligence agencies have con- ductive rights, workers’ rights, and a neutral, clearminded Justice sitting cluded that the Russian government on the bench. After carefully consid- civil rights. I find it disheartening interfered in the U.S. Presidential elec- ering all these issues, I cannot support that, instead of allowing women access tion and that it interfered to help Can- Judge Gorsuch’s confirmation. It is not to basic healthcare, Judge Gorsuch au- didate Trump. There are unexplained an easy decision, but I believe it is the thored a concurring decision that ar- ties between the President, his cam- right one for our country. gued that corporations have religious paign staff, his associates, and Russian There being no objection, the mate- beliefs. officials. People close to the President rial was ordered to be printed in the Yes, we all know that corporate law had meetings and telephone calls with RECORD, as follows: creates a legal fiction of personhood, Russian officials during the campaign RESOLUTION but let’s be real. Corporations are not and transition, and, most critically, Title: Prohibiting consideration of a nomina- people. They are not humans, and I the FBI and the Department of Justice tion to the Supreme Court of the United have never sat next to a corporation at are investigating whether the Presi- States during the final year of the term of church. Corporations do not have reli- dent and his associates coordinated or office of the President. gious beliefs. To say otherwise defies conspired with the Russian Govern- Resolved, common sense. ment to interfere with the Presidential SECTION I. PROHIBITION ON CONSIDERING Judge Gorsuch’s ruling and the sub- election. It is an investigation that NOMINATIONS TO THE SUPREME sequent Supreme Court decision in began last July and is likely to con- COURT OF THE UNITED STATES Burwell v. Hobby Lobby Stores, Inc., is DURING THE FINAL YEAR OF THE tinue for months. TERM OF OFFICE OF THE PRESI- a dangerous step backward for women’s If the President or his close advisers DENT. health. This ruling puts corporations worked with Russia to help him win During the period beginning on January 20, before people and could leave women in the U.S. election, do we really want to 2020 and ending at noon on January 20, 2021, Michigan and across the country with- let him appoint a Justice to the Su- it shall not be in order in the Senate to con- out access to essential healthcare serv- sider the nomination of an individual to the preme Court, someone who could be on position of Chief Justice of the United States ices. This decision is a step backward the Court for 30 years or more? There or a position as a justice of the Supreme for women. It is, instead, a step for- is no reason to rush this nomination. Court of the United States. ward for the growing power that cor- Remember, Republicans had no prob- Mr. UDALL. With that I yield the porations have in this country. Courts lem letting Judge Garland’s appoint- floor. not only serve as a check against a ment languish for 293 days, and Presi- The PRESIDING OFFICER. The Sen- powerful executive branch, but they dent Obama wasn’t under investiga- ator from Michigan. are supposed to put individuals on a tion. Judge Gorsuch was nominated Mr. PETERS. Mr. President, the U.S. level playing field against large, power- just 64 days ago. If Republicans had Supreme Court is a pillar of our Na- ful corporations. treated Judge Garland’s nomination tion’s democracy, and I take very seri- I am disheartened that Judge with the same expediency, he would ously the Senate’s responsibility to ad- Gorsuch was the only Tenth Circuit have been confirmed last May when vise and consent on nominees to serve judge to rule against a Detroit truck- President Obama still had 8 months in in this revered institution. Our con- driver who was unfairly fired for not office. The unacceptable treatment of stitutional democracy is a system of staying in his disabled trailer after Judge Garland and the investigation checks and balances with three coequal waiting for hours in dangerously cold into Russia’s influence in the election branches of government. Each branch weather. In a 2-to-1 decision in are reasons enough to vote against is intended to serve as a check on the TransAm Trucking v. DOL, Judge Judge Gorsuch. other two. Gorsuch ruled that TransAm Trucking

VerDate Sep 11 2014 05:07 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00078 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.232 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2335 was in the right when it fired Alphonse must have sound judicial philosophy that limit a woman’s access to safe and Maddin for walking away from his dis- and the ability to interpret the law as affordable birth control and reaffirm abled semi instead of risking death by intended by the Constitution and by the legal fiction that for-profit cor- hypothermia. the Congress. porations should have the same rights I am also disheartened by Judge I am extremely concerned that Judge as real people. There was a decision Gorsuch’s ruling on accommodations Gorsuch’s judicial approach is out of that upheld the Affordable Care Act, for disabled students. In Thompson R2– step with mainstream Michigan values, and a decision that—with a single J School District v. Luke P., Judge and I urge my colleagues to join me in vote—gave every American the right to Gorsuch ruled that schools only need opposing his nomination. marry the person they love. to provide meager accommodations to Mr. NELSON. Mr. President, will the The decision of a single Supreme satisfy the Individuals with Disabil- Senator yield? Court Justice can indeed change the ities Education Act. Mr. PETERS. I yield the floor. trajectory of our judiciary and of our During Judge Gorsuch’s confirmation The PRESIDING OFFICER. The Sen- society for generations. hearing, the Supreme Court handed ator from Florida. Now my Republican colleagues right- down a decision that ruled unani- Mr. NELSON. Mr. President, I thank ly note that this weighty decision be- mously against his position. Even the the Senator for yielding. gins with the President. They have most conservative judges on the Court Mr. President, deciding whether to routinely said it is the President’s overruled him. confirm a President’s nominee for the right to choose his judicial nominees, Chief Justice John Roberts power- highest Court in the land is a responsi- and that is true. I have one question fully wrote: bility I take very seriously. Over the for them: Where were they last year When all is said and done, a student offered past few weeks, I have met with Judge when President Obama nominated an educational program providing ‘‘merely Gorsuch, listened to the Judiciary Merrick Garland to the Supreme Court more than de minimis’’ progress from year Committee’s hearings, and reviewed his of the United States? They were to year can hardly be said to have been of- record with an open mind. I have real AWOL. fered an education at all. concerns with his thinking on pro- Shortly after Justice Scalia passed Whether it is ruling against children tecting the right to vote and allowing away and before President Obama even who want an equal opportunity to get a unlimited money in political cam- named his nominee, the Senate Repub- quality education or women who want paigns. In addition, I am concerned lican leader announced that he would access to healthcare or a truckdriver that the judge will not protect the leave the seat open—and he did—for an who simply wants to make it home rights of the everyday average citizen unprecedented 293 days. For 293 days, safely at the end of his shift, I am dis- when they come up against large cor- one of the most qualified and main- heartened that Judge Gorsuch often porate interests. Judge Gorsuch has stream nominees in our history lan- fails to take into account the human consistently sided with corporations guished without even a hearing. Many face behind each case. over employees, as in the case of a Senators refused even to meet with The U.S. Supreme Court is often the freezing truck driver who, contrary to him. For 293 days, Democrats in this last line of defense for everyday Ameri- common sense, Judge Gorsuch would Chamber and people from all over the cans, and Judge Gorsuch’s previous rul- have allowed to be fired for abandoning country called upon this Senate to do ings indicate he believes that corpora- his disabled rig during extreme weath- its job and consider the nomination of tions have greater rights than individ- er conditions. Judge Merrick Garland. The response? uals. As millions have been spent by I will vote no on the motion to in- Nothing—a total abdication of this the corporate elite in support of his voke cloture and, if that succeeds, I Senate’s constitutional responsibility nomination to the Supreme Court, the will vote no on his confirmation. of advice and consent. judge has failed to acknowledge how The PRESIDING OFFICER. The Sen- But, unfortunately, this Chamber’s deeply the Citizens United decision has ator from Maryland. failure to live up to its responsibility corrupted our government by opening Mr. VAN HOLLEN. Mr. President, I to consider the Garland nomination is the floodgates for special interest rise today to speak about one of the just one piece of a larger assault on the money to pour into our elections. most important responsibilities we independence of our judiciary. My colleagues on the other side of have here in the U.S. Senate: consid- President Trump has made it clear the aisle will tell you that Judge ering the President’s nominee to the that he sees our Nation’s judges not as Gorsuch is a mainstream judge. I would Supreme Court. a separate and coequal branch, but an argue that most Michiganders do not It is a vote with consequences that unwelcome challenge to his power. He consider the Koch brothers or the Her- will far outlast this Presidential ad- has called the courts broken and polit- itage Foundation to be mainstream. ministration. It is a vote with implica- ical. When he faced trial for scamming Mainstream Michiganders would tell tions that will outlast all of our time thousands of students at Trump Uni- you that our winters can be bitter cold here in the Senate. It will certainly be versity, he charged that the Federal and that you cannot sit in a stalled ve- one of the most consequential decisions judge overseeing that case could not be hicle for hours without risking life and each one of us makes. impartial. Why? Because, he said, he limb. They would tell you that cor- That is because any one of the nine was Hispanic—a charge that was, in porations are not people and, therefore, individuals named to the Supreme the words of the Speaker of the House do not have religious beliefs. They Court with a lifetime appointment can PAUL RYAN, the ‘‘textbook definition’’ would tell you that all children deserve change the course of our Nation. In of racism. a chance at a quality education. just the past few years, we have seen When the Trump administration first A lot of my colleagues will be dis- that. We have witnessed a series of 5- tried to impose its Muslim ban, only to cussing Senate procedures and rules to-4 decisions that changed the trajec- be blocked by a Federal court, did and precedent in the coming days, and tory of our society—decisions that gut- President Trump display respect for I will simply say this: Michiganders ted section 4 of the Voting Rights Act the rule of law? No. He fired his acting and all Americans deserve a true main- and resulted in numerous States enact- Attorney General, Sally Yates and ac- stream, consensus Supreme Court Jus- ing discriminatory laws designed to cused her of having ‘‘betrayed’’ the De- tice who can earn broad bipartisan sup- limit access to the ballot box, espe- partment of Justice. He went on to say port and not merely squeak by. cially for African-American and minor- that if any future harm occurs, it is the Now, more than ever, we need the Su- ity voters. fault of the courts, and called them ob- preme Court to be our Nation’s North The 5-to-4 Citizens United decision structionists for not bending to his Star, not a weathervane that responds overturned the law of the land and Su- will. They are not supposed to bend to to rapidly shifting political winds. preme Court precedent in order to em- the will of the Executive. Serving on the Supreme Court re- power corporations to spend unlimited President Trump’s disdain for the quires more than education, more than sums of money in support of candidates courts makes it all the more important experience, and more than a pleasant for public office, corroding the fabric of that the open seat on the Supreme demeanor. A Supreme Court Justice our democracy. There were decisions Court be filled by somebody who is

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00079 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.234 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2336 CONGRESSIONAL RECORD — SENATE April 5, 2017 seen as an impartial administrator of That is what the Court said. Fortu- begun funding millions of dollars into a justice—someone who does not have a nately for children with disabilities campaign, reducing our solemn con- set political ideology. and their families, and for the sake of stitutional duty to a set of slick cam- Unfortunately, Neil Gorsuch does not justice, they did not adopt the Gorsuch paign ads. That is why we need a new meet that important test. reasoning. nominee—one who has the support of 60 His record and his testimony shows Finally, Judge Gorsuch has spent his members of this Chamber. that he applies a very cramped reading career arguing against the so-called I will oppose this nomination and in- of the law and consistently—time and Chevron standard. In essence, this sist that this nominee be held to the again—sides with powerful corporate means that when it comes to Federal 60-vote standard to show he can get a interests against the rights of workers, rules designed to protect the public consensus of this body. consumers, and individuals. When he health and safety, he believes that the I yield the floor. had an opportunity during the hearings opinions of judges like himself should The PRESIDING OFFICER. The Sen- to explain that bias, he chose instead outweigh the opinions of experts in ator from New York. to evade the questions and answer with these subjects in our civil service. This Mrs. GILLIBRAND. Mr. President, platitudes, not substance. While he is view was rejected by none other than one of the most important constitu- undoubtedly a skilled lawyer, his Judge Scalia. It is much more in line tional duties we as Senators have is to record reveals that he is outside of the with the thinking of Steve Bannon, a decide whether a Supreme Court nomi- judicial mainstream. His decisions man whose stated goal is to nee is the right person for the job. have closed the doors of justice to deconstruct the Federal rules that pro- When we make a decision, we should working people, to people with disabil- tect the health and safety of the Amer- always consider what is best for the ities, and to individuals seeking to pro- ican people. Again, Judge Gorsuch is people of this country. Three branches tect their rights. not in the mainstream. of government were created to serve In one opinion, Judge Gorsuch was And let’s make no mistake, he was the people, so no matter what we do— the only judge who thought that never intended to be a mainstream whether it is here in the Senate, TransAm Trucking company was right nominee. Candidate Trump established whether it is in the White House, or when they fired a driver whose only of- several litmus tests. He said he wanted whether it is across the street in the fense was finding safety when the heat a nominee who was opposed to a wom- Supreme Court—the American people in his truck broke down in subzero an’s right to reproductive choice and should always come first. And our temperatures, and he began to show someone who would have the support of rights—our individual rights should signs of hypothermia. The driver said the NRA. Donald Trump then subcon- never be subordinate to the rights of he could not feel his lower body, his tracted out the nomination process to corporations. fingers were becoming numb, and he rightwing conservative groups like the The Supreme Court is supposed to be experienced slurred speech while wait- Heritage Foundation and the Fed- the ultimate protector of our indi- ing for hours for help from his com- eralist Society. He asked them to com- vidual rights—the ultimate arbiter of pany. Judge Gorsuch was the only pile a list of nominees who they liked. justice for our citizens. judge who thought that Federal regula- Unfortunately, Judge Gorsuch, over Neil Gorsuch was on that list. tions protected the trucking company the course of his career, has made it So it should be no surprise that an and not the truckdriver trying to avoid clear that he thinks the rights of cor- analysis that appeared in the New freezing to death. It makes me doubt porations are more important than the York Times concluded that Neil that Judge Gorsuch considers the real- rights of individuals. Gorsuch would be the second most con- world consequences of this ruling. For someone who describes himself servative member of the current Su- Judge Gorsuch also sided against as a strict constructionist—as a so- preme Court, and an analysis in the working people and defended powerful called textualist—his judicial ruling on Washington Post concluded he would corporations. In his opinion in Hobby corporate rights in the Hobby Lobby be the most rightwing member of the Lobby, he came down on the side of case is one of the biggest distortions of Court. corporate power against the rights of our sacred principle of individual And once President Trump selected workers. He argued that not only do rights that I have ever seen. corporations have rights to religious Neil Gorsuch, the rightwing money ma- And now President Trump has nomi- liberty, but those rights can super- chine went into action. Since that mo- nated Judge Gorsuch to the Supreme sede—can trump—the rights of ordi- ment, money has flooded our airwaves, Court, where he could end up ruling on nary working Americans. He was the with more than $10 million spent in many more cases related to individual architect of an opinion that severely support of this nomination. Never be- rights. limited a woman’s access to basic re- fore has our country witnessed a multi- In my State, just like in many of productive healthcare. million dollar campaign for the Su- yours, there are thousands and thou- In yet another ruling, Judge Gorsuch preme Court. sands of families who will be directly prevented an autistic child from get- When pressed, Judge Gorsuch said he affected by the decisions the Supreme ting a proper public school education. had no idea who or why anybody would Court makes in the next few years: vot- His opinion on the Individuals with spend that much money to make sure ing rights, workers’ rights, reproduc- Disabilities Education Act severely he sits on the highest Court. I think we tive rights. limited the options for parents of chil- know why from looking at his record. The PRESIDING OFFICER. The time dren with disabilities and the quality They want someone who consistently of the Senator has expired. of public school education they could rules in favor of large corporate special Mrs. GILLIBRAND. I ask unanimous receive. His reasoning in that case was interests against the rest of us. consent for 1 additional minute. overturned by the Supreme Court lit- There is a better way. Typically, the The PRESIDING OFFICER. Is there erally as he was testifying in the Sen- White House will consult with Mem- objection? ate Judiciary Committee. bers of both parties, Republicans and Without objection, it is so ordered. Not merely was his decision over- Democrats, before settling on a nomi- Mrs. GILLIBRAND. In my State, just turned, it was overturned unani- nee. This time that courtesy was not like many others, there are thousands mously—eight to nothing. According to extended to Democrats. If it had been, of families who will be directly affected the justices that Judge Gorsuch hopes we could be talking today about a bi- by the decision the Supreme Court to serve with, his standard would have partisan nominee—someone who would makes in the next few years—even our cut children with disabilities out of uphold equal justice under the law for First Amendment speech rights, which high-quality education. every American. The rules do not need President Trump has threatened by As the Supreme Court said in that to change; the nominee needs to be saying he wants ‘‘to open up our libel case: ‘‘For children with disabilities, changed. laws’’ against the press. receiving instruction that aims so low Our Nation’s independent judiciary is If any of these cases make it to the would be tantamount to sitting idly, under attack. Our President demonizes Supreme Court, they will all be decided awaiting the time when they were old judges whenever he feels challenged, in part by the next Supreme Court Jus- enough to drop out.’’ and now special interest groups have tice, and Judge Gorsuch’s record does

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00080 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.236 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2337 not give me confidence that he will be the rule of law and that he believes no ditions of this institution and not even a Justice whose rulings would bolster one, including the President of the allow an up-or-down vote on Judge those individual rights. United States, should be above the law. Gorsuch? Well, I have been listening. I On the issue of changing the rules to He reveres the separation of powers have been listening to the speeches to the filibuster, I strongly oppose chang- and the fundamental principle that it see what they are saying. It seems that ing these Senate rules for President is the Congress of the United States, some of my colleagues are focused on Trump, to give him special help with not the judiciary, that makes our laws. this vague notion of vagueness—lit- Judge Gorsuch. He performed exceptionally well. He erally, vagueness. If we listen to their So I urge my colleagues to think answered question after question with comments, they talk about Judge about the potentially far-reaching and consistency and displayed a legal phi- Gorsuch’s supposed ambiguity, his damaging consequences to our democ- losophy well within the mainstream of vagueness, his evasiveness, that he racy if they vote to eliminate the fili- judicial thought within the United won’t answer questions on how he buster for Supreme Court nominees. States. would rule on specific cases, so they Fundamentally, changing the rules for As the Presiding Officer knows, it is are going to oppose him because of President Trump is a historic mistake. not just Members of this body who are this. Well, these are curious and, to be We must stand up for individuals’ talking about Judge Gorsuch and how frank, unconvincing reasons to oppose rights over corporations, and I urge my well qualified he is; commentators Judge Gorsuch. colleagues to vote against this nomi- across the country have focused on how First, as we know, a nominee is typi- nee. qualified Judge Gorsuch is to be our cally not expected to say how he or she The PRESIDING OFFICER (Mr. LEE). next Supreme Court Justice. Let me would rule on future cases. Judicial The Senator from Alaska. highlight just a few of their quotes. nominees, whether appointed by Demo- Mr. SULLIVAN. Mr. President, I, too, This is from an editorial from the cratic or Republican Presidents, have wish to spend some time talking about Chicago Tribune: said this repeatedly. I will provide a the confirmation and upcoming vote on Here is a judge who knows the law and quote from a prior nomination hearing Judge Neil Gorsuch. As many of my knows the role of the judiciary: He isn’t on by one of our current Supreme Court colleagues have noted, this is certainly the bench to make law, he’s there to inter- Justices. She stated: one of the most important responsibil- pret it faithfully. Because I am and hope to continue to be a ities we have in this body—to confirm Neil Gorsuch should be confirmed. judge, it would be wrong for me to say or to the next Supreme Court Justice. The Detroit News: preview in this legislative chamber how I As the Presiding Officer noted in re- After two days of often hostile hearings, would cast my vote on questions the Su- marks made a few days ago about Supreme Court nominee Neil Gorsuch is preme Court may be called upon to decide. Were I to rehearse here what I would say and Judge Gorsuch, he is an exceptionally proving himself an even-tempered, deeply how I would reason on such questions, I knowledgeable nominee who should be con- well-qualified candidate for the U.S. would be acting injudiciously. firmed by the United States Senate. Supreme Court. I will go briefly into That was what Justice Ruth Bader The Denver Post said: his bio. Ginsburg told the Senate Judiciary First of all, he has a sterling aca- [Judge Gorsuch] possesses the fairness, Committee in 1993. She continued dur- demic reputation and credentials. He independence and open-mindedness nec- ing her confirmation hearing: graduated from Columbia, Harvard, essary to make him a marvelous addition to the Supreme Court. A judge sworn to decide impartially can and Oxford. He clerked for two Su- offer no forecasts, no hints, for that would preme Court Justices. He worked at USA TODAY’s editorial board de- show not only disregard for the specifics of the Justice Department. Very impor- clared: Gorsuch merits confirmation. the particular case, it would display disdain tantly—and we are not hearing a lot This Supreme Court nominee is quali- for the entire judicial process. about it from our colleagues on the fied within the broad judicial main- Many have called this the Ginsberg other side—he was unanimously con- stream of America. standard, one that Justices have fol- firmed for a U.S. court of appeals job In fact, we looked to see if there was lowed in front of the Judiciary Com- for the Tenth Circuit in 2006. Senators any major paper across the country or mittee during their confirmation hear- such as Hillary Clinton, Barack commentator who is opposed to Judge ings and one that Judge Gorsuch also Obama, and Joe Biden all voted for Gorsuch’s nomination. It was hard to followed. Indeed, during his hearing, him, as well as many of my colleagues find any. It was hard to find any in any Judge Gorsuch stated that if the Presi- in this body on the other side of the part of the country. Two former chief dent or others had asked such a spe- aisle who are still serving. justices of the Tenth Circuit Court of cific question on how he would rule on He is a westerner. We know that Appeals—both appointed by different a particular case, ‘‘I would have walked right now the U.S. Supreme Court, Presidents of different parties—stated out’’ of the room. with the possible exception of Justice that Judge Gorsuch ‘‘represents the So my colleagues on the other side of Kennedy, has no westerners. Geo- best of the judicial tradition in our the aisle can’t have it both ways. They graphical diversity on the Court is very country.’’ say they want an independent voice on important. This morning, my colleague Even one board member of the liberal the Court, but they are also opposing Senator MURKOWSKI talked about how American Constitutional Society who Judge Gorsuch because he won’t tell the current Supreme Court is occupied said he supports Democratic candidates them how he would rule on certain by Justices who have spent almost and progressive causes declared: cases. This is a new standard and an their entire lives in the Boston, New ‘‘There is no principled reason to vote impossible standard to meet. York, DC corridor. That is not Amer- no on Judge Gorsuch’s confirmation.’’ The second reason the vagueness ica. That doesn’t represent the whole He received the highest rating from standard of many of my colleagues on country. Judges in Western States the American Bar Association. And it the other side of the aisle in their op- focus on issues like Native-American is not just the ABA, there is a long list position to Judge Gorsuch is uncon- law, lands issues, oil and gas issues. It of different groups across the country, vincing is that it ignores the fact that is very important, certainly for my many representing minority groups in this is a judge with a record. They say: State of Alaska, to have a judge with America, who have supported Judge He is vague. We are not sure what his that kind of background. Gorsuch—the National Congress of views are. But it is more than facts on a page American Indians, the Native Amer- Judge Gorsuch has decided roughly that make Judge Gorsuch such a ican Rights Fund, the Hispanic Leader- 2,700 cases, over 800 of which he au- strong candidate for the High Court. ship Fund, the Central Council of thored. There is nothing vague about During Senate Judiciary Committee Tlingit and Haida Tribes in Alaska. that. In 97 percent of the time in those hearings last week, his temperament The list goes on and on and on. cases, he reached a unanimous decision was also tested and his judicial philos- Given the broad-based support—from with the other panelists on the Tenth ophy was articulated. It was clear dur- the left, from the right, from the cen- Circuit. These are not vague decisions. ing those hearings that Judge Gorsuch ter—why would my colleagues on the His judicial philosophy and tempera- will bring a commitment to following other side of the aisle threaten the tra- ment are on full display in literally

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00081 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.238 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2338 CONGRESSIONAL RECORD — SENATE April 5, 2017 tens of thousands of pages of decisions passed the vote in the U.S. Senate 98 to the Senate. But at the same time, I be- in his own words. There is nothing 0. Note that two of the current mem- lieve strongly that Judge Gorsuch de- vague about them. bers of the Supreme Court were con- serves to get an up-or-down vote. I cer- My colleagues can challenge him on firmed by fewer than 60 votes. tainly encourage my colleagues to his mountain of legal opinions, but Bottom line: There has never been a bring that vote forward and to confirm please, with all due respect, let’s drop 60-vote requirement in the U.S. Senate this exceptionally well-qualified can- the facade of opposing him because of or a partisan filibuster of a Supreme didate to be our next Supreme Court vagueness, and that they don’t know Court nominee during a President’s Justice. And the American people de- what the issues are is not an argument first term—never. serve as much, as well. that has much merit. Here is another fact equally as rel- I yield the floor. So despite widespread acclaim from evant to Judge Gorsuch’s confirmation: The PRESIDING OFFICER. The Sen- groups across the country, rep- More than any other President, more ator from Utah. resenting a broad spectrum of liberals than any other Presidential election in Mr. HATCH. Mr. President, I rise and conservatives, and despite a recent memory, the one last year was today to speak out against the abuse of tenured, concrete record as a judge on clearly about the U.S. Supreme Court. the Executive authority. Before I do, I the U.S. court of appeals, my col- Republicans in the Senate and Can- want to compliment the distinguished leagues on the other side of the aisle didate and now President Trump told Senator from Alaska for his cogent re- appear to want to engage in a partisan the American people: There is an open marks here today on the floor. He is filibuster of Judge Gorsuch’s nomina- seat on the U.S. Supreme Court. This is one of the great new additions to this tion. an important issue. Let the people de- body, and he ought to be listened to. I What exactly does this mean? The cide. personally respect him and appreciate language, I admit, can be confusing— And they did. Polls show that mil- the words he said here today. cloture, filibuster, 60-vote threshold. In lions of Americans ended up voting for ANTIQUITIES ACT plain English, what is really going on? President Trump and against Hillary Mr. President, I rise today to speak It means that the minority leader right Clinton based, at least in part, on out against the abuse of Executive au- now wants to prevent the Senate from which candidate they believed should thority under the Antiquities Act. having an up-or-down vote on the mer- nominate our next Supreme Court Jus- Over the last two decades, past Presi- its of this Supreme Court nominee. In tice and whether they wanted the dents have exploited the law in the ex- other words, no vote ever on the quali- Court to act as a superlegislature, in- treme, using it as a pretext to enact fications of Judge Gorsuch. We will terpreting a living Constitution, or some of the most egregious land grabs just filibuster. whether they wanted a Justice in the in our Nation’s history. My home State I have been watching a number of my mold of Justice Scalia, with a more of Utah has been hit especially hard by colleagues come to the floor and talk modest view of how the Court should this Federal overreach. Time and about what they are planning on doing. view its station in our constitutional again, Presidents have abused their The minority leader has essentially power under the Antiquities Act to order. been saying: We all do this. We are all The American people, including my proclaim massive monument designa- guilty. Nothing new here. This is just a constituents, spoke loudly in Novem- tions—to lock away millions of acres of little bit of payback. This is how this ber on this issue of the U.S. Supreme public land. place operates. My State has fallen victim to not one Court by voting against Hillary Clin- In many ways, these arguments are but two catastrophic monument des- ton and for Donald Trump. And to his almost cavalier in what they are about ignations. These designations were credit, President Trump kept his word to do. But we shouldn’t buy that. I made unilaterally, without any input on this important issue by putting for- have been in the Senate only 2 years— whatever from our congressional dele- a mere blink of an eye compared to ward an extremely well-qualified can- gation or even the local Utahans whose others—and I missed a lot of the other didate who will be a worthy successor lives would be directly affected by such nominations and debates in 2013, the to Justice Scalia. decisions. Rather than advancing the Despite all this—an extremely well- Gang of 14 many years ago. But I like important cause of conservation, these qualified nominee and a national elec- to read a lot of history, and here are national monuments have come to tion that focused on who should fill the some facts that are important to un- symbolize Washington at its worst. derstand as we debate the Gorsuch con- vacancy of the Supreme Court—it ap- How did we get here? How did a cen- firmation: pears that the minority leader of the tury-old law, which is intended to give First, there has never been a partisan Senate is going to ignore the will of Presidents only limited authority to filibuster of a new President’s nominee the American people and set a prece- designate special landmarks, become a for the Supreme Court—never. dent dating back to our Nation’s found- blunt instrument for Executive over- Second, it has been the custom, al- ing by leading a filibuster against reach? In answering this question, ways, of the U.S. Senate to give a new Judge Neil Gorsuch. We shouldn’t some background is necessary. President’s nominee an up-or-down allow this to happen, and we won’t. In 1906, Congress passed the Antiq- vote. For example, Republicans gave I hope my colleagues who are con- uities Act, which granted the President this courtesy to President Clinton templating this will change their limited authority to establish national when he nominated Ruth Bader Gins- minds because in going forward with monuments to protect areas containing burg in 1993 and Stephen Breyer in 1994 this filibuster, who are they really pun- ‘‘historic landmarks, historic and pre- and President Obama with his first- ishing? They are punishing the Amer- historic structures, and other objects term nominees, Sonia Sotomayor in ican people, as well as undermining the of historic or scientific interest.’’ The 2009 and Elana Kagan in 2010. They all traditions of this body—a body with Antiquities Act was a well-intentioned got up-or-down votes. rules crafted carefully over the last response to a serious problem: the Third, there has never been a 60-vote two centuries. looting and destruction of cultural and requirement for any Justice on the Su- As I mentioned, we need to work to- archaeological sites. preme Court during the confirmation gether in this body. In my 2 years in When applied as intended, the law process in the U.S. Senate—never. the Senate, I have tried hard to work has been indispensable in preserving Let me go through the votes of the with my colleagues on bipartisan our Nation’s rich cultural heritage. current Supreme Court Justices: Jus- issues. I have also tried hard to show But the law has not always been ap- tice Kennedy, 97 to 0; Justice Thomas, all my colleagues the respect they de- plied as intended; rather, it has been 52 to 48; Justice Ginsburg, 96 to 3; Jus- serve as duly elected Senators of this abused, exploited, and distorted beyond tice Breyer, 87 to 9; Chief Justice Rob- important body. Whatever the outcome all recognition. It has been hijacked by erts, 78 to 22; Justice Alito, 58 to 42; of this vote on Judge Gorsuch, I cer- past Presidents not to preserve archae- Justice Sotomayor, 68 to 31; Justice tainly want to make clear that we need ological features but to satisfy special Kagan, 63 to 37. to continue respectfully working interests and to advance a radical po- Incidentally, Justice Scalia, whom across the aisle for the sake of our Na- litical agenda—all at the expense of Judge Gorsuch would be replacing, tion, and we need to rebuild trust in States’ rights.

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00082 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.239 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2339 By signing their authority under the monument, the Grand Staircase- the management of property and land Antiquities Act, past Presidents have Escalante, spans 1.9 million acres. That within the Federal domain. Only seized millions of acres of public land, is an area double the size of all of through passage of the Antiquities Act violating both the spirit and arguably Utah’s national parks combined. When can Congress grant authority to the the letter of the law. We need only look President Clinton proclaimed the President to make limited monument at the history of the Antiquities Act Grand Staircase-Escalante a national designations. Congress entrusted the and its enactment to see how far we monument more than 20 years ago, I executive branch with narrow author- have come and how far we have strayed remember standing on this very floor ity, but the executive branch has vio- off course. and speaking out then, just as I am lated that trust time and time again. As with any law, congressional in- speaking out now. My words back then For years, I have fought to check the tent is key. On this point, I would like are just as applicable today. I said: abuse of Executive power under the An- to refer to the House CONGRESSIONAL While the 1906 Antiquities Act may indeed tiquities Act. As far as back as 1997, in RECORD dated June 5, 1906. When asked give the President the literal authority to the aftermath of the Grand Staircase how much land would be taken off the take this action, it is quite clear to me that proclamation, I introduced legislation in using this authority, he is violating the market in the Western States by pas- spirit of U.S. environmental laws. Real dam- requiring an act of Congress before the sage of the Antiquities Act, Congress- age has been done here. The failure even to President could establish any national man John Lacey, the bill’s lead spon- consult prior to making this decision should monument of more than 5,000 acres. As sor, gave a simple response: ‘‘Not very be considered devastating to representative early as last year, in anticipation of much.’’ democracy. the eminent Bears Ears debacle, I The bill provides that it shall be the To this day, the Grand Staircase wrote a bill prohibiting any further ex- ‘‘smallest area necessary for the care proclamation remains among the most tension or establishment of national and maintenance of the objects to be flagrant abuses of Presidential power I monuments in Utah without express preserved.’’ ‘‘The smallest area nec- have ever seen. Without so much as a authorization from Congress. essary.’’ These words are damning in ‘‘by your leave’’ from Utahans, this Most recently, I have been working light of recent monument designations unilateral action cut off access to mil- closely with the Trump administration which, far from regulating the smallest lions of acres of land, suffocating eco- from day one to right the wrongs of area necessary, have sought to restrict nomic development and uprooting the previous administrations. Within days the largest area possible. I wonder lives of thousands of Utahans who re- of his nomination, I indicated to Sec- what Congressman Lacey would say lied on the region’s resources for their retary Ryan Zinke that undoing the today if he could see how his bill has very survival. And just like Bears Ears, harm caused by the Bears Ears and been manipulated for extreme partisan this designation came with no input Grand Staircase monument designa- ends. I wonder what he would say if he from Utah’s Governor, the Utah con- tions was among my top priorities. could see how his legislation has been gressional delegation, or even local In a private meeting in my office, I exploited by past Presidents to lock up communities. even told Secretary Zinke that my sup- entire sections of State land—all with- The Grand Staircase monument des- port for his nomination would depend out congressional approval. And I won- ignation exemplified Executive over- largely on his commitment to this der what he would say about the two reach of the worst kind. Even Demo- cause. After gaining assurances from most recent monuments designated in crats were stunned by this shocking Secretary Zinke that he would work Utah: Bears Ears and the Grand Stair- power grab, and many of them con- with us in this effort, I was eager to case-Escalante monuments. Together, ceded to me privately when I was then support his confirmation. I probably these two monuments encompass 3.25 shouting publicly that the President would have supported it anyway be- million acres—an area roughly the size was never meant to set aside millions cause he is a fine man. But I am really of the State of Connecticut. To say of acres through the Antiquities Act. pleased that he agreed with me on the that Congressman Lacey and his col- Even the San Francisco Chronicle— injustices that have occurred in Utah. leagues would be disappointed is an un- by no means a conservative news- Just 2 weeks later, I found myself in derstatement. paper—panned President Clinton’s the Oval Office where I engaged Presi- In passing the Antiquities Act more Grand Staircase proclamation. In 1996, dent Trump for over an hour on a wide- than 100 years ago, Congress did not in- the editorial board stated: ranging discussion that focused specifi- tend to cede undo authority to the ex- The question is whether a decision of such cally on the public lands issue. I have ecutive branch, and they certainly did magnitude should be carried out by Execu- to say that I was amazed at the Presi- tive order. We think not. This may well be a dent’s willingness to help. He listened not intend for future Presidents to pro- worthy idea, but it deserves a fair hearing. It claim the massive land grabs of the re- deserves to go through public deliberations, intently as I relayed the fears and frus- cent past. They intended to give Presi- as slow and messy as democracy may be, to trations of thousands in our State who dents only limited authority to des- fully air the concerns. have been personally hurt by the Bears ignate special landmarks, such as the That was more than 20 years ago. In Ears and Grand Staircase monument unique national arch or the site of old the intervening period, nothing has designations. cliff dwellings. Yet today, when it changed. Bears Ears was Grand Stair- I explained the urgency of addressing comes to the Antiquities Act, there is case all over again. When President these devastating measures. I asked for a shocking disparity between what Obama declared the Bears Ears a na- his help in doing so. I was encouraged Congress intended and what has actu- tional monument in the twilight hours that, unlike his predecessor, President ally happened. of his Presidency, he ignored the years Trump actually took the time to listen As a case in point, look no further of work Utah’s congressional delega- and understand the heavy toll of such than my home State of Utah, where tion had spent fighting to pass legisla- overreaching actions. Our President President Obama’s last-minute, lame- tion to protect the region via a fair and even assured me that he stands ready duck monument designation at Bears open process. He ignored the State leg- to work with us to fix this disaster. Ears is wreaking havoc on the local islature and the Governor. He ignored More than any of his predecessors, population. In the parting shot of his the stakeholders and even local Utah- President Trump understands what is Presidency, President Obama defied ans who were all working together to at stake here. the entire Utah congressional delega- find a workable solution. He ignored I was really buoyed up by the con- tion and the will of his own constitu- the best interest of Utah and cast aside versation with him in the Oval Office. ents when he declared the Bears Ears a the will of the people, all in favor of Indeed, in all my years of public serv- national monument. With the stroke of the top-down unilateral approach ice, I have never seen a President so a pen, he locked away an astonishing meant to satisfy the demands of far- committed to reigning in the Federal 1.35 million acres—a geographic area left interest groups. This is Executive Government and so eager to fix the larger than the total acreage of all five hubris at its worst. It was never sup- damage done by these overbearing of Utah’s national parks combined. posed to be this way. monument designations. We are fortu- If that is not enough, consider that Congress, not the President, is solely nate now to have the White House at Utah’s second most recent national responsible under the Constitution for our side in the fight for local control.

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00083 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.241 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2340 CONGRESSIONAL RECORD — SENATE April 5, 2017 There are many areas in this country in on the Tenth Circuit, 97 percent of partisan filibusters by Democrats who that merit protection. I welcome the them were decided unanimously. Judge disagreed with these nominee’s judicial opportunity to work with my col- Gorsuch voted with the majority on philosophies. The filibuster against leagues to further that cause. But the that court 99 percent of the time, even Fortas succeeded, in part, because process to determine how best to pro- though the majority were Democrats. Fortas lacked a clear majority support, tect these areas is equally important. In the 1 percent of the cases in which and, in part, because he was ethically That is why, for decades now, I have Judge Gorsuch dissented, he did so compromised. The filibusters against vehemently opposed unilateral actions with almost the same frequency, Rehnquist and Alito, by contrast, to restrict the use of entire landscapes whether the majority opinion was writ- failed. Rehnquist and Alito both en- without even the charade of a public ten by a judge nominated by a Repub- joyed clear majority support and both process. lican or a Democrat President. Addi- were confirmed. But that was a dif- Using the Antiquities Act to protect tionally, Judge Gorsuch has gained bi- ferent Senate at the time. There was a our public lands, we must set a new partisan support, including from Presi- lot more open mindedness about the precedent of collaboration and trust dent Obama’s former Solicitor General, qualifications of these judges and their between the States and the Federal Neal Katyal, a man whom I respect, right to sit on the bench. Government. I look forward to working said that Judge Gorsuch is committed I regret to say that we are likely to with President Trump to establish this to the rule of law and the judiciary’s add a fourth filibustered Supreme new precedent. independence. Court nominee, Neil Gorsuch. Like Mr President. I will turn to another Judge Gorsuch was described by six Justices Rehnquist and Alito, Judge matter of pressing importance, the former Solicitors General appointed Gorsuch enjoys clear majority support. confirmation of Judge Neil Gorsuch to under four different Presidents as, Like Justices Rehnquist and Alito, be a Justice on the U.S. Supreme ‘‘highly respected’’ and ‘‘admired by Judge Gorsuch faces opposition from Court. I have been in a lot of these bat- his colleagues appointed by Presidents Senate Democrats who don’t like his tles over the years. I have to say, this of both parties and law clerks of all po- judicial philosophy. Why, I will never one bothers me as much as any battle litical stripes.’’ understand. In particular, they object we have had. The American Bar Association gave that Judge Gorsuch takes the law as he In early January of this year, the Judge Gorsuch its highest rating of finds it, rather than trying to bend the Democratic leader issued a warning to ‘‘well qualified’’ to be an Associate law toward liberal social ends. then-President-Elect Donald Trump re- Justice on the Supreme Court. I think Unlike Justice Rehnquist and Alito, garding the President-elect’s antici- we can all agree that this is a far cry however, Judge Gorsuch is apparently pated selection of a Supreme Court from the profile of an extreme or activ- not going to clear the 60-vote threshold nominee. Even before President Trump ist judge. It is a far cry from that. That for cloture. This is because Senate took the oath of office, the Democratic needs to be pointed out. I want to know Democrats, with only a few exceptions, leader was already threatening the how anyone can, while keeping a have concluded that no nominee who does not subscribe to their views of soon-to-be-President to either pick a straight face, honestly make the case hot-button social issues should be al- ‘‘mainstream and independent’’ nomi- that Judge Gorsuch is anything but lowed to serve on the Supreme Court. nee or the Democrats would oppose the mainstream. In reality, quite the opposite is true. Never, never, in the history of this President-elect’s choice ‘‘with every- Judge Gorsuch is exactly the kind of body has the Senate allowed a partisan thing we have.’’ Well, President Trump did exactly judge we need on the Supreme Court. minority to defeat a Supreme Court He is an impartial, thoughtful man nomination for which there is clear what the Democratic leader asked with tremendous judicial experience, a majority support. when he nominated Judge Neil Gorsuch person that you can’t help but respect. The only successful filibuster of a Su- to the Supreme Court. Not only is He has been educated at some of the preme Court nominee in our Nation’s Judge Gorsuch a mainstream and inde- best schools in the world and has ex- history was bipartisan, and it involved pendent judge, he is easily one of the celled at every stage of his career. an ethically compromised nominee, finest and most qualified nominees to He has served with character, cour- Abe Fortas, who resigned from the the High Court that I have seen in all age, and integrity for more than a dec- bench shortly after his nomination my 40 years in the Senate. His selec- ade on the Federal bench. It would be failed rather than face impeachment tion was also the result of the most hard to even imagine a better, more for serious conflict-of-interest viola- transparent Supreme Court nomina- suitable choice for the Supreme Court tions. Those circumstances are not tion process in American history. than Judge Gorsuch. After seeing the even remotely comparable to the situa- President Trump and Hillary Clinton judge sit through several grueling days tion we face today. both made the Supreme Court a center- of confirmation hearings and nearly 20 The filibuster of Judge Gorsuch, piece of their campaigns and spoke at hours of questioning before the Senate should it go forward, will be entirely length about the type of judge they Judiciary Committee, my confidence in partisan. It will have nothing to do would appoint to replace Justice Judge Gorsuch has only been solidified. with Judge Gorsuch’s ethics or char- Scalia. Candidate Trump even made Despite the Democrat’s best efforts acter, which are above reproach, and it the novel pledge to nominate someone before and during the hearings to dis- will occur in the face of clear majority from a list of judges his campaign re- tort his record, he demonstrated time support for the nominee. leased to the public. This gave the and again that his judicial philosophy Senate Democrats’ decision to block American people the opportunity to is to impartially interpret and apply Judge Gorsuch should come as no sur- vet the list and to discuss more gen- the law and the Constitution wherever prise to anyone who has been following erally the proper role of judges in our it might take him. the confirmation wars for more than system of governance. Now we are about to witness some- the last 5 seconds. My Democratic col- When the American people elected thing unprecedented in the history of leagues will no doubt shout to the hill- Donald Trump to be our next Presi- our Nation. The partisan minority is tops—some of them. There are some dent, they ratified his list of can- going to block a vote on a Supreme that are standing up here too. But they didates. When President Trump subse- Court nominee. In all of the Senate’s will shout to the hilltops that Repub- quently selected Neil Gorsuch from 228-year history, that has never hap- licans are ruining the Senate if we de- that list to be his nominee, he kept his pened before. Three Supreme Court cide to put a stop to their unprece- promise to the American people. That nominees have faced filibusters in our dented obstruction of this nominee. is who I expected him to select at that Nation’s history. The first, Abe Fortas, They will no doubt cry that the 60- time. faced a bipartisan filibuster by Sen- vote threshold for cloture on Supreme Judge Gorsuch’s judicial record on ators of both parties concerned about Court nominees is sacrosanct and that the Tenth Circuit paints a clear picture Fortas’s questionable ethics back- by putting an end to Democrats’ un- of the judge’s judicial temperament ground. precedented obstruction, Republicans and philosophy. Of the more than 2,700 The second and third, William are somehow undermining this institu- cases Judge Gorsuch has participated Rehnquist and Samuel Alito, endured tion’s ideals.

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00084 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.242 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2341 When the American people hear these pected filibuster of Judge Gorsuch. ture votes. The Republicans, by con- claims, when they hear Senate Demo- Well, what the Democrats did to Presi- trast, endured 20 failed cloture votes crats argue that Republicans should re- dent Bush’s judicial nominees was also during President Bush’s term and spond to their unprecedented obstruc- unprecedented. For the first time in never changed the rules. tion by allowing a nomination with history, Senate Democrats successfully That brings us to today. Having clear majority support to fail, they filibustered 10 court of appeals nomi- Borked Judge Bork, smeared Justice should recognize these arguments for nees. These were nominees with major- Thomas, instigated the filibuster for what they are: hypocrisy. The fact is, ity support in this body. These were lower court nominees when it was in we are only in this situation, forced to nominees who would have been con- their interest, filibustered Justice choose between rewarding Democrat firmed had they gotten an up-or-down Alito, and then eliminated the fili- obstructionism and changing the Sen- vote. I cannot overstate how dramatic buster for lower court nominees when ate’s rules, because of Democrats and a change this was to Senate norms and it was in their interest, Senate Demo- the campaign they have waged against procedures. For the first time in his- crats now expect Republicans to drop qualified judicial nominees for the past tory, Senate Democrats created an ef- our hands and allow them to block 30 years. fectual 60-vote threshold for judicial Judge Gorsuch—an unquestionably Every single escalation of the con- nominees. Remember that Clarence qualified nominee with broad support firmation wars can be laid at the feet Thomas was confirmed with only 52 from across the legal community and of Democrats. This is a simple truth, votes. Had Senate Democrats filibus- the country as a whole. and nothing my colleagues on the tered his nomination, it would have Enough, Mr. President. Enough. other side of the aisle can say can been defeated. But they didn’t because We have let our Democratic col- change it. I speak from experience. I partisan filibusters of nominees with leagues get away with their games for have been here for through all of it. I majority support were simply not in too long. They were for the filibuster was here in 1987 when Democrats start- the accepted playbook. What Senate before they were against it before they ed the confirmation wars with their Democrats did during George W. Bush’s were for it. They were the ones who disgraceful treatment of Robert Bork, Presidency changed the Senate forever. created an effectual 60-vote threshold one of the greatest lawyers in the Next up was Samuel Alito. Like Chief for judicial nominees. They were the country and a person who was su- Justice Rehnquist, Justice Alito faced ones who then undid that threshold to premely qualified to be on the Supreme a partisan filibuster by Senate Demo- assist their short-term political inter- Court. crats. Like Chief Justice Rehnquist, he ests when they were in power. They are I remember vividly the day the late overcame that filibuster. But what is the ones who now, for the first time in Senator from Massachusetts came to notable about Justice Alito is he re- history, are seeking to block a Su- this floor and smeared Judge Bork as a ceived fewer than 60 votes for con- preme Court nominee with clear major- man would somehow turn back the firmation. He overcame the filibuster ity support. clock to darker days in our Nation’s because 19 Senate Democrats voted to To put the matter bluntly, my Re- past. I have to say, Senate Democrats end debate on his nomination even publican colleagues and I are fed up twisted Judge Bork’s words, misrepre- though only 4 ultimately voted for con- with these Democratic Party antics. sented his record, and in sum, did their firmation. Fifteen Senate Democrats We will no longer be bound by their best to turn a good and decent man chose not to filibuster Justice Alito games and petty partisanship. We will into some sort of a monster. even though they opposed his nomina- no longer allow them to dictate the In their scorched-earth campaign tion because they recognized that fili- terms of debate in ways that always against Robert Bork, Senate Demo- advantage their side and always dis- bustering a Supreme Court nominee crats sowed seeds of destruction that advantage ours. with clear majority support had no are coming now to full fruition. I regret deeply the point we have ar- Next came Clarence Thomas. My precedent in this body’s norms or his- rived at. I am an institutionalist. I love Democratic colleagues learned from tory. the Senate and what it represents. I What happened when Barack Obama their Bork experience that fabrications love my Democratic colleagues, and became President and Republicans had and misinterpretations can bring down they know it. I have been very fair to an opportunity for payback? Did they even the most qualified nominee, so them through the years, and I continue filibuster Sonya Sotomayor and Elena they set to work on Judge Thomas. Not to be. I value debate, and I honor bipar- Kagan? Of course not. Indeed, many satisfied merely with denigrating tisanship. But 30 years ago, my Demo- Republicans voted against Justice Judge Thomas’s professional qualifica- cratic colleagues sent us down this tions, they set out to destroy him per- Sotomayor and Justice Kagan, but no path, and they have done nothing in sonally as well. Republican tried to prevent their nomi- the years since to turn us from this I have been in the Senate for 41 nations from coming to a vote. Once course. To the contrary, they have years, and never in all my time have I again, Senate Democrats escalated only hastened our descent. seen a lower moment than the way the confirmation wars, and Senate Repub- If Democrats will filibuster a person Senate Democrats treated Clarence licans chose not to reciprocate. like Judge Gorsuch, they will filibuster Thomas. No baseless allegation, no How did Democrats pay us back for anyone—anyone—who holds to the tra- lurid lie was too low for my Demo- our restraint on Justices Sotomayor ditional judicial values Republicans cratic colleagues’ attention. To his and Kagan? They nuked the filibuster embrace. Neil Gorsuch is as good as great credit, Judge Thomas endured for lower court nominees. The irony of they come. If he is not good enough for this slander with dignity and respect this move is really something. It was Democrats, no one will be. and was confirmed by a slim 52-to-48 the Democrats who, 10 years earlier, Democrats demand that Republicans margin. for the first time in Senate history, choose a nominee they would choose if Thankfully, after the Thomas ordeal, began the practice of filibustering they held the White House, when that we stepped back from the brink. When courts of appeal judges in an effort to has never been the standard for Su- Bill Clinton became President and had stop President Bush’s nominees. When preme Court nominees and defies all two Supreme Court vacancies early in Senate Republicans then had the gall logic and common sense. They demand his term, Senate Republicans did not not to roll over for President Obama the power to veto President Trump’s play tit for tat. Instead, we gave Jus- once the shoe was on the other foot, choice even though the Supreme Court tices Ginsburg and Breyer fair hearings Democrats simply changed the rules was, in all likelihood, the issue that and confirmed them overwhelmingly. back to what they were in practice 10 won him the election. And I believe And how did Senate Democrats pay us years prior. Democrats, that is, raised that. And they demand that Repub- back for our fair treatment of Presi- the effectual confirmation threshold to licans keep the rules sacrosanct when dent Clinton’s nominees? They filibus- 60 votes by instigating filibusters to they have changed the rules and tered President George W. Bush’s block Republican nominees and then changed the rules and changed the nominees. lowered it back down to 50 votes to rules. I have used the word ‘‘unprece- push through Democratic nominees. I am not happy that we are where we dented’’ to describe Democrats’ ex- They did so after only seven failed clo- are, but I can say without reservation

VerDate Sep 11 2014 04:13 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00085 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.243 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2342 CONGRESSIONAL RECORD — SENATE April 5, 2017 that we are here because of what ence of our judicial branch has never selection process to extreme rightwing Democrats have done over the past 30 been more important. It has never been groups, like the Heritage Foundation, years to poison the confirmation proc- more threatened. choosing from their list, from their ess. When the story of this constitutional preapproved selectees. Against this I am about to change the rules if nec- crisis is written, I believe that the he- backdrop, President Trump nominated essary to put Neil Gorsuch on the Su- roes will be an independent judiciary Neil Gorsuch to the Supreme Court. preme Court. I won’t be happy about and a free press. An independent judici- I want to make clear that despite my that, but I will do it because Judge ary is the bulwark against over- outrage about what happened to Gorsuch deserves confirmation and be- reaching and autocratic tyranny, and Merrick Garland, which was far worse cause I refuse to reward Democrats for the free press has uncovered much of than a filibuster—one of my colleagues 30 years of bad faith in blocking, stall- the facts that have prompted the FBI has termed it the ‘‘filibuster of all fili- ing, and smearing Republican nomi- investigation and, I hope, eventually— busters’’—and despite my deep concern nees. sooner rather than later—an inde- over a nomination from a President Enough, Mr. President. Enough. pendent prosecutor because only a spe- who so disrespects the judicial branch, I hope my colleagues will come to cial prosecutor can bring criminal I was prepared to give Judge Gorsuch a their senses and realize that we ought charges that will hold accountable fair hearing. I believe my colleagues on to be working to support people of the wrongdoers who have broken our crimi- the Judiciary Committee and I pro- quality of Judge Neil Gorsuch. There nal laws. vided that hearing, and we will provide will come a time when they are going In this constitutional crisis, respect a vote. to have nominees before this body—I for an independent judiciary is more I strongly believe that during this kind of hope that doesn’t happen, but I important than ever before, but it is process, Judge Gorsuch had a special think it is bound to happen—and when threatened by forces that are powerful obligation to be forthcoming. I want to they do, I hope my fellow Republicans and undeniable. It was threatened first be clear that that is not opining on won’t treat their nominees the way by the denial to Merrick Garland of a cases or controversies that may come they are treating ours. It is abomi- hearing and a vote, relying on an in- before him or issues that may be before nable, it is abysmal, it is wrong, and I vented principle found nowhere in the his Court if he is confirmed. Unlike think it is time for everybody in this Constitution that the President of the prior nominees, he absolutely refused country to know that. United States—then Barack Obama— to say whether he agreed with core Mr. President, I used to try cases in somehow lost his power to appoint Jus- principles and precedents, well-estab- Federal court, in Pittsburgh and in tices during the fourth year of his lished and long-accepted decisions of Utah. I had tremendous respect for term. That act of political expediency the Supreme Court that embody and Federal court judges. Mainly the demeaned this institution, the U.S. enshrine principles that the American judges in Pittsburgh were all Demo- Senate, and it also disrespected our ju- people have accepted and that they ex- crat. The judges in Utah more often diciary. It dragged the Supreme Court pect the Supreme Court to implement. were Democrats, some Republicans. into the partisan mire that has caused There is no tradition of a Supreme But I have got to say that they were such drastic dysfunction in this branch Court nominee’s refusing to answer good judges, and I was very proud to be of government. every question posed to him as Neil able to present my cases in front of President Trump demonstrated his Gorsuch did, even questions about them. own disrespect for the judiciary iconic cases. Justice Kennedy and Chief All I can say is that in all my years through his constant, repeated, relent- Justice Roberts answered unambig- of working on the Judiciary Com- less attacks, calling one member of the uously that they believed that Brown mittee, trying cases before I came bench a ‘‘so-called judge’’ simply be- v. Board of Education was rightly de- here, having an AB rating, the highest cause he ruled against him and struck cided. Justice Roberts also said of the rating that Martindale-Hubble grants down on constitutional grounds Presi- decision in Griswold v. Connecticut: ‘‘I to attorneys for ability in both Pitts- dent Trump’s illegal travel ban—really agree with the Griswold Court’s con- burgh and Utah, I have to say that I a Muslim ban. His demeaning and dis- clusion.’’ On the related case of am very disturbed by the arguments paraging comments have attempted to Eisenstadt v. Baird, Justice Alito said: made against Judge Gorsuch, and I shake the foundation of respect for ju- ‘‘I do agree with the result in have to say that I don’t think you can dicial rulings that have held him ac- Eisenstadt.’’ Such statements do not find a better more qualified person to countable and potentially every Presi- prejudice any litigants or prejudge any be on the Supreme Court. dent accountable to the American peo- I suggest the absence of a quorum. ple, along with the Senate and the cases; instead, they provided Senators The PRESIDING OFFICER (Mr. House of Representatives. He has at- and, more importantly, the American people with the confidence that these TILLIS). The clerk will call the roll. tempted to convince his audience that The senior assistant legislative clerk judges who rule against him are not Justices adhere to long-settled legal proceeded to call the roll. only wrong but illegitimate—in one principles that have formed the basis of Mr. BLUMENTHAL. Mr. President, I case, because of a judge’s ethnic herit- critically important cases that came ask unanimous consent that the order age. afterward. How far these principles for the quorum call be rescinded. I would have thought that there may extend is a live issue, but their The PRESIDING OFFICER. Without would have been bipartisan shock and underlying legitimacy is not and objection, it is so ordered. outrage at such suggestions, but the si- should not be. Mr. BLUMENTHAL. Mr. President, lence across the aisle has been deaf- Unfortunately, at his hearing, Judge we will vote today and tomorrow on ening. Such a campaign by the Execu- Gorsuch would tell us only that Gris- the Supreme Court nominee, Neil tive against the judicial branch would wold and Eisenstadt were precedents— Gorsuch, in the midst of a looming con- be extraordinarily disturbing regard- or decisions—of the Court, and he dou- stitutional crisis. Only in the past few less of the circumstances but particu- bled down on his evasiveness in re- weeks, the Director of the FBI has con- larly so now in the midst of this con- sponse to written questions that were firmed that his agency is investigating stitutional challenge. submitted just last week. There was no ties between President Trump’s associ- President Trump’s disrespect for the reason for him to diverge from the ates and Russian meddling in our re- judiciary was emphasized, as well, by kinds of answers that were provided by cent election. how he selected his nominee for the Justice Roberts and Justice Alito un- The urgent need for an impartial in- Court and how he established a litmus less he, unlike them, disagreed with vestigation and the possibility of the test for that nominee. He proudly pro- the reasoning that was used in these Supreme Court’s having to rule on a claimed that litmus test, declaring on cases. subpoena directed to the President of multiple occasions that his nominee These cases go to the core of the the United States is very real. The re- would automatically overturn Roe v. right to privacy and equal treatment peat of United States v. Nixon is far Wade and strike down gun violence pre- under the rule of law. The constitu- from idle speculation. The independ- vention measures. He outsourced that tional right to privacy underlies not

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00086 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.245 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2343 just the rights of couples to use contra- leagues believe is too characteristic of was caused in part by ruinous competition ception, which was the issue in Gris- the courts today. among companies. In 1933, Congress passed wold and Eisenstadt, but the right of The structure of our government de- the National Industrial Recovery Act, which women to control their own bodies, as pends on the flexibility of these agen- allowed the president to approve ‘‘fair com- petition’’ standards for different trades and established in Roe v. Wade, and couples cies that protect the purity of our industries. The next year, Roosevelt ap- of different races to marry, as estab- drinking water, the safety of workers proved a code for the poultry industry, lished in Loving v. Virginia, or the on construction sites, the integrity of which, among other things, set a minimum right of same-sex couples to equal our financial markets, and much, much wage and maximum hours for workers, and treatment, as established in Lawrence more, so that it may do its job and en- hygiene requirements for slaughterhouses. v. Texas and Obergefell v. Hodges. Jus- force rules and laws that provide not Such basic workplace protections and con- tice Brandeis, in one of the original only protection for ordinary people, ev- straints on the free market are now taken for granted. privacy decisions, called this right to eryday Americans, but also a level But in 1935, after a New York City slaugh- privacy ‘‘the right to be left alone,’’ playing field for the good guys who terhouse operator was convicted of violating and it is a core constitutional principle want to do the right thing, and they the poultry code, the Supreme Court called that Chief Justice Roberts endorsed as are the majority of businesses in this into question the whole approach of the New well. country. Deal, by holding that the N.I.R.A. was an If Judge Gorsuch does not believe in The proposed abandoning of the ‘‘unconstitutional delegation by Congress of this fundamental right or equal protec- Chevron doctrine that Judge Gorsuch a legislative power.’’ Only Congress can cre- tion under the rule of law, the Amer- ate rules like the poultry code, the justices supports would eviscerate the enforce- said. Because Congress did not define ‘‘fair ican people deserve to know it. Unfor- ment of these basic rules that protect competition,’’ leaving the rule-making to tunately, his continued evasion of my workers and consumers—people who the president, the N.I.R.A. violated the Con- questions and those of others tells a drink water in their homes and breathe stitution’s separation of powers. different story. I am left with the ines- the air and go to work every day and The court’s ruling in Schechter Poultry capable conclusion that Judge Gorsuch expect to come home safely, as well as Corp. v. the United States, along with an- passed the Trump litmus test—an auto- people who invest their money in a way other case decided the same year, are the only instances in which the Supreme Court matically anti-choice, pro-gun conserv- that is protected against fraud. ative and an acolyte of hard-right spe- has ever struck down a federal statute based As Emily Bazelon and Eric Posner on this rationale, known as the ‘‘nondelega- cial interests who screened and se- wrote this Sunday in the New York tion doctrine.’’ Schechter Poultry’s stand lected his name. Yet I am equally and Times: against executive-branch rule-making maybe more concerned by Judge Judge Gorsuch is skeptical that Congress proved to be a legal dead end, and for good Gorsuch’s approach to cases dealing can use broadly written laws to delegate au- reason. As the court has recognized over and with worker safety and consumer thority to agencies in the first place. That over, before and since 1935, Congress is a rights, issues relating to clean air and can only mean that at least portions of such cumbersome body that moves slowly in the water and the fundamental role of the statutes—the source of so many regulations best of times, while the economy is an in- public sector in protecting individuals that safeguard Americans’ welfare—must be credibly dynamic system. For the sake of business as well as labor, the updating of and putting their rights above cor- sent back to Congress, to redo or not. I ask unanimous consent that the ar- regulations can’t wait for Congress to give porate interests. highly specific and detailed directions. The important concerns my col- ticle be printed in the RECORD. The New Deal filled the gap by giving pol- leagues and I have raised have been There being no objection, the mate- icy-making authority to agencies, including caricatured by some Senate Repub- rial was ordered to be printed in the the Securities and Exchange Commission, licans to a belief that judges should al- RECORD, as follows: which protects investors, and the National ways rule for sympathetic plaintiffs, [From the New York Times, Apr. 1, 2017] Labor Relations Board, which oversees col- lective bargaining between unions and em- and that is simply not so. The THE GOVERNMENT GORSUCH WANTS TO UNDO ployers. Later came other agencies, includ- TransAm Trucking case, which has (By Emily Bazelon and Eric Posner) ing the Environmental Protection Agency, been discussed at length on the floor At recent Senate hearings to fill the Su- the Occupational Safety and Health Admin- and in committee, is of concern not be- preme Court’s open seat, Judge Neil Gorsuch istration (which regulates workplace safety) cause of the individual but because of came across as a thoroughly bland and non- and the Department of Homeland Security. the reasoning he used. He relied on a threatening nominee. The idea was to give as Still other agencies regulate the broadcast handpicked dictionary definition to little ammunition as possible to opponents spectrum, keep the national parks open, help rule against a worker who left his when his nomination comes up this week for farmers and assist Americans who are over- a vote, one that Senate Democrats may try truck as he was under threat of grave seas. Administrative agencies coordinated to upend with a filibuster. the response to Sept. 11, kept the Ebola out- physical peril and perhaps death, and But the reality is that Judge Gorsuch em- break in check and were instrumental to he distorted the meaning of the stat- braces a judicial philosophy that would do ending the last financial crisis. They regu- ute, leaving aside basic common sense nothing less than undermine the structure of late the safety of food, drugs, airplanes and and feeling. He called Congress’s de- modern government—including the rules nuclear power plants. The administrative clared statutory purpose—protecting that keep our water clean, regulate the fi- state isn’t optional in our complex society. health and safety—too ‘‘ephemeral and nancial markets and protect workers and It’s indispensable. generic’’ to provide an interpretive consumers. In strongly opposing the admin- But if the regulatory power of this arm of istrative state, Judge Gorsuch is in the com- government is necessary, it also poses a risk guide. That is how he characterized our pany of incendiary figures like the White that federal agencies, with their large bu- purpose here in protecting the safety of House adviser Steve Bannon, who has called reaucracies and potential ties to lobbyists, workers. This approach shows that for its ‘‘deconstruction.’’ The Republican- could abuse their power. Congress sought to Judge Gorsuch looks for guidance not dominated House, too, has passed a bill de- address that concern in 1946, by passing the in the words that Congress has chosen signed to severely curtail the power of fed- Administrative Procedure Act, which en- but in his own dictionary. And it may eral agencies. sured a role for the judiciary in overseeing not even be Webster’s; it may be the Businesses have always complained that rule-making by agencies. government regulations increase their costs, The system worked well enough for dec- dictionary that is in his head or is in and no doubt some regulations are ill-con- ades, but questions arose when Ronald the heads of the rightwing groups who ceived. But a small group of conservative in- Reagan came to power promising to deregu- screened and proposed his name. tellectuals have gone much further to argue late. His E.P.A. sought to weaken a rule, Then there is Judge Gorsuch’s open that the rules that safeguard our welfare and issued by the Carter administration, which hostility to the Chevron doctrine, the orderly functioning of the market have called for regulating ‘‘stationary sources’’ of which is a term that was likely mean- been fashioned in a way that’s not constitu- air pollution—a broad wording that is open ingless and incomprehensible to most tionally legitimate. This once-fringe cause of to interpretation. When President Reagan’s Americans before these proceedings the right asserts, as Judge Gorsuch put it in E.P.A. narrowed the definition of what and may be again after we are done. a speech last year, that the administrative counted as a ‘‘stationary source’’ to allow state ‘‘poses a grave threat to our values of plants to emit more pollutants, an environ- Yet it is a profoundly important prin- personal liberty.’’ mental group challenged the agency. The Su- ciple of law that essentially stands The 80 years of law that are at stake began preme Court held in 1984 in Chevron v. Nat- against judicial activism—the very de- with the New Deal. President Franklin D. ural Resources Defense Council that the fect that many of our Republican col- Roosevelt believed that the Great Depression E.P.A. (and any agency) could determine the

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00087 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.247 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2344 CONGRESSIONAL RECORD — SENATE April 5, 2017 meaning of an ambiguous term in the law. workplace protection? Decades of experience bate, and that if confirmed, the Presi- The rule came to be known as Chevron def- in the United States and around the world dent be immediately notified of the erence: When Congress uses ambiguous lan- teach that the administrative state is a nec- Senate’s action. guage in a statute, courts must defer to an essary part of the modern market economy. The PRESIDING OFFICER. Is there agency’s reasonable interpretation of what With Judge Gorsuch on the Supreme Court, objection? the words mean. we will be one step closer to testing that Chevron was not viewed as a left-leaning Without objection, it is so ordered. premise. The PRESIDING OFFICER. The Sen- decision. The Supreme Court decided in Mr. BLUMENTHAL. His philosophy favor of the Reagan administration, after all, ator from Rhode Island. voting 6 to 0 (three justices did not take represents the height of activism, be- Mr. WHITEHOUSE. Mr. President, I part), and spanning the ideological spectrum. cause it would allow courts to sub- ask unanimous consent to speak for up After the conservative icon Justice Antonin stitute their policy judgments for to 20 minutes as in morning business. Scalia reached the Supreme Court, he de- agency expertise. Abandoning the The PRESIDING OFFICER. Without clared himself a Chevron fan. ‘‘In the long Chevron doctrine and the principles it objection, it is so ordered. run Chevron will endure,’’ Justice Scalia represents invokes a desire to destroy a CLIMATE CHANGE wrote in a 1989 article, ‘‘because it more ac- broad array of rules that protect crit- Mr. WHITEHOUSE. Mr. President, curately reflects the reality of government, ical rights. One such rule was issued by and thus more adequately serves its needs.’’ this is my 163rd ‘‘Time to Wake Up’’ That was then. But the Reagan administra- the Occupational Safety and Health speech. I persist in the hope that one tion’s effort to cut back on regulation ran Administration in the aftermath of a day these little water drops will ulti- out of steam. It turned out that the public Connecticut tragedy at L’Ambiance mately cut through the stone of fossil often likes regulation—because it keeps the Plaza decades ago when a collapse fuel intransigence. air and water clean, the workplace safe and killed 28 workers in Bridgeport, CT. Last week our new President, Donald the financial system in working order. De- The rule prohibiting the use of the lift Trump, announced an Executive order regulation of the financial system led to the slab construction technique that led to aiming to wipe out many of his prede- savings-and-loans crisis of the 1980s and the cessors’ climate change measures. So I financial crisis a decade ago, costing tax- L’Ambiance’s collapse has now saved payers billions. the lives of others. But would it have would like to take some time this Businesses, however, have continued to survived a review by Judge Gorsuch? evening to examine his Executive complain that the federal government regu- My fear is that he would have struck it order—which is, in many respects, a lates too much. In the past 20 years, conserv- down and substituted the activist in- sham—and show how very far away it ative legal scholars have bolstered the red- stinct of a judge instead—protecting is from the actual wishes of the Amer- tape critique with a constitutional one. They the corporations that might use it. ican people. argued that only Congress—not agencies— Today we still know very little about So to set the scene, exactly as the big can create rules. This is Schechter Poultry polluters wanted, the Trump Executive all over again. Judge Gorsuch’s core beliefs because he And Judge Gorsuch has forcefully joined evaded so many questions. But here is order purports to roll back climate pro- in. Last year, in a concurring opinion in an what we do know. We know that the tections. It seeks to change rules for immigration case called Gutierrez-Brizuela man who hired him has said he passes how industry controls methane leaks v. Lynch, he attacked Chevron deference, his rightwing litmus test. We know from natural gas extraction and to lift writing that the rule ‘‘certainly seems to that conservative organizations have a ban on new coal leases on our Federal have added prodigious new powers to an al- spent millions of dollars on the pros- lands. It signals an effort to unwind ready titanic administrative state.’’ Re- the Clean Power Plan, which has markably, Judge Gorsuch argued that Chev- pect that he will move American law dramatically to the right. And we helped put us on track to sharply re- ron—one of the most frequently cited cases duce carbon emissions over the next in the legal canon—is illegitimate in part be- know that he will not answer questions cause it is out of step with (you guessed it) that his Republican-appointed prede- decade. Typical for this insider-friend- Schechter Poultry. Never mind that the Su- cessors answered about core tenets of ly administration, it is a polluter’s preme Court hasn’t since relied on its 1935 American jurisprudence. In short, he wish list, but terrible for the American attempt to scuttle the New Deal. Nonethe- has left us with substantial doubt. people—sad, as the President would less, Judge Gorsuch wrote that in light of Let me conclude on this note—that say. Schechter Poultry, ‘‘you might ask how is it President Trump promises that this doubt. Important and critical doubt that Chevron—a rule that invests agencies will revitalize the coal industry, but it that should preclude us from con- with pretty unfettered power to regulate a won’t. Appalachian coal is being firming him today leaves women won- lot more than chicken—can evade the chop- crushed in the market by Wyoming ping block.’’ dering how long they will have auton- At his confirmation hearings, Judge coal, and cheap natural gas is crushing omy over their healthcare decisions, both Appalachian coal and Wyoming Gorsuch hinted that he might vote to over- same-sex couples questioning whether turn Chevron without saying so directly, coal, and ever-cheaper renewables are they might be denied the right to noting that the administrative state existed catching up on them all. So like so long before Chevron was decided in 1984. The marry the person they love, workers much of what this Oval Office does, implication is that little would change if and consumers doubting their rights, this was political theatrics, not real courts stopped deferring to the E.P.A.’s or and Americans fearing the Court will policy. the Department of Labor’s reading of a stat- abandon protections of privacy, equal- The Clean Power Plan is going no- ute. Judges would interpret the law. Who ity, and the rule of law. where because America is not, despite could object to that? That is why I cannot support this Trump’s best efforts, a banana repub- But here’s the thing: Judge Gorsuch is nomination and why I urge my col- skeptical that Congress can use broadly lic. The administrative agencies that written laws to delegate authority to agen- leagues to support a filibuster to block Trump directed to stop taking action cies in the first place. That can mean only it. on climate change are actually obliged that at least portions of such statutes—the I yield the floor. to follow the law, and they will be held source of so many regulations that safeguard The PRESIDING OFFICER. The ma- to the law. Under the Administrative Americans’ welfare—must be sent back to jority leader. Procedures Act, these agencies have to Congress, to redo or not. UNANIMOUS CONSENT AGREEMENT—EXECUTIVE On the current Supreme Court, only Jus- follow real facts, not conjure up ‘‘alter- CALENDAR tice Clarence Thomas seeks to strip power native facts’’ from the fever swamp of from the administrative state by undercut- Mr. MCCONNELL. Mr. President, I the Breitbart imagination. Their ting Chevron and even reviving the obsolete ask unanimous consent that following record and their decisions will be re- and discredited nondelegation doctrine, as he leader remarks on Monday, April 24, viewed by courts—not ‘‘so-called’’ explains in opinions approvingly cited by the Senate proceed to executive session courts, real courts. Administrative Judge Gorsuch. But President Trump may for consideration of Calendar No. 31, agencies cannot make decisions that well appoint additional justices, and the the nomination of Sonny Perdue to be are, to use the standard of administra- other conservatives on the court have ex- Secretary of Agriculture. I further ask tive law, arbitrary and capricious. This pressed some uneasiness with Chevron, though as yet they are not on board for over- that the time until 5:30 p.m. be equally is an Oval Office that lives by being ar- turning it. What would happen if agencies divided in the usual form and that at bitrary and capricious, but administra- could not make rules for the financial indus- 5:30 p.m., the Senate vote on confirma- tive agencies cannot be, or their work try and for consumer, environmental and tion with no intervening action or de- will be thrown out in court.

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00088 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.068 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2345 The question of carbon dioxide as a fuel industry is well on its way to try concern from blue States. Well, here is pollutant has been settled by the U.S. to turn America into a banana repub- a State-by-State look. So these are all Supreme Court. Even Administrator lic, but it won’t work. It is a stain upon the States. The colors reflect the per- Pruitt seems to recognize the folly of the Senate that Pruitt actually got centage of Americans who think that trying to undo the EPA carbon dioxide through the Senate without ever hav- climate change is happening. The endangerment finding. So we have, as a ing to disclose who funded his political break point from blue to tan is the 50- matter of law, a dangerous pollutant, dark money operation. That is a first. percent break point. So in every single and under the law, it must be regu- That is a first. The Republican major- State in the Union, no matter how red, lated. So this performance of the ity would not have those questions an- a majority of Americans understand Trump Show is a waste of time because swered because they were so eager to that climate change is happening. How ultimately lawyers and courts will give shove this fossil fuel operative into the that 50 percent ends up being 9 percent the law—the law—the final say. Administrator’s seat at EPA. Incon- on the Senate floor is a story that I Courts are actually pretty good venient questions like that wouldn’t have told in other speeches. But we places for addressing climate change. get answered in banana republics, ei- will see that at 45 percent, it is just It is very hard for the lies that are at ther. pale blue. There is not a bit of pale the heart of climate denial to with- While fossil fuel interests have been blue anywhere. The entire country is stand judicial scrutiny. Smelly con- calling the shots in Washington, the above 50 percent. flicts of interest can be exposed, and American people have been of an en- So the next item this allows us to administrators with those smelly con- tirely different mind. Let me show sev- look at is Americans who support fund- flicts can be removed or recused. eral polls that have come out over the ing for research into renewables. Now, Judges aren’t supposed to be influenced past few weeks documenting public the lowest color here is the kind of by campaign contributions or political concern about climate change. deep orange and that comes in at 75 threats. The law, and real facts, not al- The Gallup poll shown here found percent. That is the lowest point of any ternative facts, prevail. that 71 percent of the American people State in wanting support funding for In litigation like the cases in New believe climate change is happening— research into renewables—75 percent— York and Oregon, the fossil fuel indus- 71 percent. Seventy-one percent trust and it goes all the way up into the 90s. try will face discovery, testimony, and scientists that, in fact, climate change For renewable research in coal coun- cross-examination. Lawyers and courts is happening; 68 percent believe that try, we see 82 percent support in Wyo- will ultimately force things back on global warming is caused by human ac- ming; 81 percent support in West Vir- track. In the meantime, this Trump tivities; 62 percent believe we are al- ginia; 79 percent support in Kentucky; show makes losers of the American ready feeling the effects of climate and the same in the oil patch—79 per- people. The Clean Power Plan is a rea- change in our lives; and 45 percent cent of Texans support renewables. De- sonable approach to confronting our worry a great deal—worry a great spite this support, President Trump re- carbon problem. It gives States flexi- deal—about global warming. cently proposed massive cuts, showing bility, and it would save American A recent poll indicates that climate once again that the Trump show is not families $85 a year on energy costs once change is the top worry for 66 percent the America show even in fossil fuel fully implemented. Good luck making of Democrats. States. Yale’s program on Climate Change a better plan. The support for carbon dioxide limits I represent Rhode Island, a downwind Communication recently launched an on existing coal-fired plants is also State prone to air pollution from out- extensive interactive map. It was fea- widespread. In all 50 States—in all 435 of-State smokestacks. We are also a tured recently in the New York Times. red, blue, and purple congressional dis- coastal State, where rising seas driven It shows that Americans all over the tricts—there is majority support, every by climate change threaten our coastal country overwhelmingly believe that single place. So what did President towns. I am sure the Presiding Officer climate change is real and support a Trump and the fossil fuel operative at can sympathize with the risk to coast- variety of actions to address it. So let’s EPA do in the face of this? Signed this al communities as the sea levels rise. start with what Americans believe. silly Executive order purporting to Just this past week, our Providence Seventy percent believe that global undo the Clean Power Plan. Journal had a story that said there are warming is happening, and 53 percent seven water treatment plants that are believe it is caused mostly by human Yale’s map allows us to do some in- in danger of inundation in a 100-year activities. Most scientists think that teresting stuff. It is interactive, so we storm, which, of course, is becoming global warming is happening—that is a can zoom in. Let’s take a quick zoom more and more likely each year. So for near majority—and 71 percent trust in Oklahoma, Administrator Pruitt’s Rhode Island, reducing carbon pollu- scientists about global warming. That, home State. tion and other greenhouse gases is part by the way, compares to 9 percent of As we can see, in every congressional of preserving the map of the State we the Republican Senate caucus when we district, a majority of Oklahomans be- love and protecting the health of our called a vote on the issue last Con- lieve climate change is happening, people. gress. So if we are looking for who is trust climate scientists about climate We need EPA, because our State en- out of step here, it is the Republican change, support regulating carbon di- vironmental agency can’t regulate out- Senate caucus that is very out of step oxide as a pollutant, and support set- of-State pollution. That brings me to with the public. ting strict carbon dioxide limits on ex- the man standing next to the President And when you go on to solutions, 82 isting coal-fired powerplants—even in as he signed this order, EPA Adminis- percent of Americans want research Oklahoma. trator Scott Pruitt. He is a man who into renewable energy sources; 75 per- So who is Scott Pruitt representing? built his career raising money from the cent want to regulate CO2 as a pollut- Because he is certainly not rep- industry, and for years lent his badge ant; and 69 percent want to set strict resenting any State in the country, of office to the industry-enabled legal CO2 limits on existing coal-fired power- any congressional district in the coun- assault on the Clean Power Plan. As plants. try, certainly not representing Okla- you might imagine, he beamed as Actually, the Clean Power Plan was a homa or any congressional district in President Trump passed him the pen good deal softer than strict CO2 limits, Oklahoma. used to sign the Executive order. and even then, 69 percent of Americans Interestingly, not too long ago, Years ago, in Central and South support it, and 66 percent of Americans President Trump and his children were America, fruit company puppets ruled support requiring utilities to produce on the same page as those majorities of banana republics. They wore ostenta- 20 percent of their electricity from re- Oklahomans and Americans. I have tious uniforms and enjoyed the newable sources. shown this before: In 2009, Donald, trappings of power, but it was the fruit So my colleagues from Republican Ivanka, Donald Junior, and Eric Trump company backers who really called the States might think this data is rep- supported meaningful and effective shots. That is why banana republics resentative of people living in their measures—in an ad in the New York are called banana republics. The fossil districts, that this is being biased by Times to fight climate change—calling

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Colorado, for ex- change was based on scientifically ir- this body—understood that our govern- ample, has roughly equal numbers of refutable evidence and had cata- ment is far more than the sum of our Democrats, Republicans, and Independ- strophic irreversible consequences. laws or the letter of our Constitution. ents. That is why the Senate gives Despite the popularity of getting Our system is also held together by smaller States disproportionate rep- something done on climate change in rules, written and unwritten, that help resentation, with Colorado receiving every single congressional district in elected officials resolve their dif- the same votes as California. the country, we do nothing. What is up ferences without unleashing a down- That is why traditions of the Senate with that, if not politics—fossil fuel in- ward spiral of recrimination that could hand the minority tools to encourage dustry politics? The most voracious endanger the Republic itself. consensus between political parties. special interest in American politics, They understood, for example, that The filibuster is one of those tools, and the fossil fuel industry, has captured while civility, compromise, and co- it has been used for good and for ill the Trump show, installed its flunkies operation are not required by law, laws throughout our history. By requiring at the EPA, and hopes to unwind envi- cannot pass without them. They recog- the consent of 60 Senators to proceed ronmental and public health safeguards nized that while the majority may on key votes, the filibuster ensures that the public supports. have the power to rule on its own, it that the legislation we pass and the So I have to keep asking the fossil should not trample over the minority. nominations we approve reflect at least fuel guys: How do you think this ends? They understood that, at some point, a modest level of consensus. The fili- Are you delusional enough to believe partisanship should give way to patri- buster is meant as a tool of last resort, that you can defeat real science and ig- otism. but in recent years it has become yet nore both the laws of nature and the Throughout history, including mo- another weapon in our endless partisan will of the American people? ments far more difficult than our own, warfare. It was not always that way. It is bonkers. It is political power run these principles were the quiet guard- From George Washington to George amuck. rails of our politics, keeping dysfunc- W. Bush, the filibuster was used just 68 We have a chance to push back a lit- tion at bay. But in recent years, we times against Presidential nominees. tle bit. Scientists will be marching in have begun tearing these guardrails But during just the first 5 years of the Washington, DC, and around the coun- down, and in doing so, we risk the re- Obama administration, Republicans try on April 22 to reject the phony-ba- venge of history by ignoring it. used the filibuster 79 times against his loney alternative facts of President There is a tendency around here to nominees. That was my first term in Trump. Please join them wherever you think that our problems are unique and the Senate, and at that time, I saw the can. The following weekend, people that the consequences of our actions filibuster the way many Americans from around the country are coming to are fleeting. still do—as an undemocratic tool for DC—April 29—for the People’s Climate Some 2,400 years ago, the ancient his- delay and gridlock. So in 2013, after un- March. I was in the People’s Climate tory of Korsia was consumed by civil precedented Republican obstruction of March in September 2014 with more war. According to Thucydides, both highly qualified nominees, I voted with than 400,000 other concerned Ameri- sides spared ‘‘no means,’’ he wrote, ‘‘in the Democratic majority to end the 60- cans, and it was a heartening and ener- their struggles for ascendancy. . . . In vote threshold for most Presidential gizing experience. So mark your cal- their acts of vengeance they went to nominations, invoking what is known endars for April 22 and for April 29, and even greater lengths, not stopping at as the nuclear option. come to DC or to the satellite marches what justice or the good of the state Although Republicans were wrong to being held around the country. demanded, but making the party ca- abuse the rules, Democrats were wrong As these maps have shown, you are price of the moment their own stand- to change them. Even as we changed not alone in seeking climate action. ard.’’ the rules, however, we made a point to Every single congressional district in As the civil war intensified, both retain the filibuster for Supreme Court the country wants climate action. It is sides struggled to end it because ‘‘there nominations, recognizing their pro- only the death grip of the fossil fuel in- was neither promise to be depended found influence on our country’s laws. dustry on this building that prevents upon nor oath that could command re- Last year, dysfunction in the Senate that from happening. spect; but all parties dwelling rather in reached a new low when Senator So help make these the last days of their calculation upon the hopelessness MCCONNELL denied Judge Merrick Gar- denial by this dirty industry and its of a permanent state of things, were land, President Obama’s nominee for rightwing climate denial fanatics. As more intent upon self-defence than ca- the vacancy left by the late Justice days and months slip by, we lose pre- pable of confidence.’’ Scalia, the courtesy of even a hearing, cious time to address both the harm to The Founders read Thucydides. They to say nothing of a vote. That was an Mother Earth of climate change and knew that once factions cross the line, offense to the traditions of this body the harm to America of being made ri- once they violate tradition in an esca- and our Constitution. diculous around the world by our obei- lating retaliation, it becomes very hard I recognize that it is impossible to sance to the fossil fuel industry. We are to turn back. separate politics from the courts, but supposed to be the city on the hill, not James Madison in particular under- at the same time, we must not allow fossil fuel’s banana republic. stood the peril of faction. He wrote how the judiciary—and especially the Su- It is time for America to begin lead- people with ‘‘a zeal for different opin- preme Court—to become a pure exten- ing again on climate. It is time to ions concerning religion, concerning sion of our partisan elections and poli- wake up. government, and many other points’’ tics. Alexander Hamilton wrote that Mr. President, I yield the floor. have ‘‘divided mankind into parties, in- ‘‘liberty can have nothing to fear from The PRESIDING OFFICER. The Sen- flamed them with mutual animosity, the judiciary alone, but would have ev- ator from Colorado. and rendered them much more disposed erything to fear from its union with ei- Mr. BENNET. Mr. President, our to vex and oppress each other than to ther of the other departments.’’ Con- founders knew that ‘‘while history does cooperate for their common good.’’ tinuing, he wrote that because of ‘‘the not repeat, it does rhyme.’’ That is why They also feared that, once in power, natural feebleness of the judiciary, it is they mined the politics of ancient majority factions would abuse that in continual jeopardy of being over- Greece and Rome for lessons about the power to run roughshod over the mi- powered, awed, or influenced by its co- promise and the perils of self-govern- nority. In a country with such diverse ordinate branches.’’ ment. In their wisdom, they placed beliefs and traditions, doing so could Our actions over the last few years— those lessons at the heart of the Amer- threaten the very stability of the Re- and I would say over the last few ican political experiment. Two hundred public. days—jeopardize not only the Senate,

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If we go down this road, we will ica. which would eliminate for all time the undermine the minority’s ability to Unlike us, our Founders knew this 60-vote threshold for Supreme Court check this administration and all those history as well as their own. But they nominees and allow them to confirm who follow. could not guarantee that we would Judge Gorsuch with the narrowest par- Today we have a President who does heed its lessons. That is why they built tisan majority. This is precisely the not appreciate the separation of powers institutions to check the worst im- outcome our Founders feared, when and who has made unprecedented at- pulses of faction, to help us navigate lifetime appointments to our highest tacks on the free press and the judici- profoundly consequential decisions— Court, which touches every aspect of ary. The country needs an empowered like confirmations for the Supreme American life, become just another Senate minority right now, more than Court—without tearing each other partisan exercise. We must not go down ever. More than that, the country apart. But the Founders also placed this road. needs a Senate that can forge a con- their faith in the willingness of elected This President may have several sensus about our future, rather than officials to resist the lure of narrow in- more opportunities to nominate a Su- carrying on the bitter and tired divi- terests or passions of the moment and preme Court Justice during his term. If sions of the past. I know it can be hard. rise up to defend their institutions and that happens, Republicans would face I have been here long enough to know our traditions, especially in hard enormous pressure to nominate an ex- it can be hard for both sides to see be- times. We must not betray their faith. treme candidate, knowing that they yond the partisan tactics of the mo- With each escalating crisis, we dam- could confirm them without a single ment. Lawmakers will never lack for age not just the Senate, but the Repub- Democratic vote—indeed, that they an excuse to break with custom or lic. The Rubicon may be far, but with would be expected to confirm them change the rules to their benefit. They each rule and custom broken, we draw without a single Democratic vote. And may even argue, as some recently have, nearer. Choices on both sides have to those who believe that President that the damage is not that bad—that brought us to this low point, but I have Trump could not nominate someone everything can continue on as normal. faith that we can choose—and we more outside the mainstream than We should know better than that. should choose—a different path. We can Judge Gorsuch, I would say to just look Our Founders certainly did. They choose to step back from the brink to at some of President Trump’s Cabinet would recognize our path today in the find common ground, to fulfill our obli- nominees, some of whom are among currents of history. The Roman Repub- gation in the time we are serving here the least qualified and most radical lic endured for nearly 500 years, but it to sustain the American experiment for ever confirmed by this body. By the was brought low by events that should the next century and beyond. way, under the change to the rules that seem eerily familiar to people in this I yield the floor. we made, it is the first Cabinet to be Chamber. The PRESIDING OFFICER. The Sen- confirmed requiring just 51 and not 60 In 60 BCE, the Roman Senate was ator from Ohio. votes. consumed by a controversial land re- Mr. BROWN. Mr. President, I always Not to put too fine a point on it, but form initiative. One side was led by a appreciate the remarks—the well- if you don’t like the ring of Judge Senator named Cato; the other, Julius thought-through remarks of my col- Gorsuch, how do you feel about Justice Caesar. To stop land reform and other league, and the history lesson putting Pruitt, who doesn’t believe in climate initiatives, Cato employed delay tac- it into context is always so important change, or Justice Sessions, who has a tics similar to the filibuster, freezing and something we should do more of in record of opposing civil rights and the Roman Senate for months. While this body. equality? If we continue down this the action was within the rules, it I thank Senator BENNET for his path, both of those could be confirmed broke with Senate custom. Caesar words. with a slim majority vote. vowed to press forward. Cato’s allies The Supreme Court, as we know, has With respect to Judge Gorsuch, I am responded by declaring a religious holi- tremendous influence over the lives of proud he is from Colorado. But I am day for the rest of the legislative cal- our country, the lives of Ohioans, my concerned by his judicial approach, endar, stopping the reform effort in its State, and the lives of so many. Nomi- which too often seems to rely on the tracks. nees must defend the rights of all narrowest interpretation of the law In a further break with precedent, Americans to make their own with little appreciation for its context. Caesar bypassed the Senate and took healthcare decisions, to collectively In particular, I believe he has far too the bill to the people’s assembly for ap- bargain for safe workplaces and fair much confidence in the original mean- proval. Furious, Cato’s allies boycotted pay, and to be protected from discrimi- ing of the words in legislation or, for the government and postponed the next nation and Wall Street greed. that matter, even the Constitution. election by 3 months. While Caesar Unfortunately, Judge Gorsuch is sim- Having worked on legislation for near- eventually triumphed, the incident in- ply not that nominee. His record is ly a decade now, I know these words, so tensified a cascade of recrimination clear. He has ruled that corporations often written in the dead of night in that the Roman Senate struggled to es- are people. I am not a lawyer, but I un- meager attempts to let everybody go cape. Legislative strikes, delayed elec- derstand that it is a relatively recent home, cannot be explained without ref- tions, and believe it or not, shutdowns concept in American jurisprudence to erence to the legislative context or grew in frequency. Manufactured crises equate corporations with people. When human history or lawmakers’ intent. became routine. you do that, you simply give corpora- Sometimes a comma really does end up As the dysfunction grew, the Senate tions more rights than individuals in the wrong place. became increasingly irrelevant, as have. When you come from that posi- Although I have reservations about power flowed to Caesar and military tion, it means that judges repeatedly his approach to the law, I do not have leaders. Even as Senators recognized rule to choose corporations over work- reservations about his qualifications the danger, they failed to correct ers; they choose polluters over commu- for the Court. He is a committed and course. Too much damage had been nities; they choose Wall Street over honorable public servant, and that is done. Centuries-long custom had been consumer protections; they choose spe- why so many members of the Colorado broken. Trust among Senators had cial interest money over our citizens. bar and bench support his nomination. eroded. Confidence in the body col- We have seen too much of that in this Qualified nominees deserve an up-or- lapsed. country. down vote. That is the tradition of this As dysfunction in the Senate rose, so We have seen a decline of the middle body. How members vote is a matter of did popular calls for a strongman to class, in part because the Federal judi- conscience for each of us. clean up the mess. Within a decade, ciary is choosing corporations over

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If chosen, polluters over com- program providing merely more than his ruling, ‘‘he didn’t even think about munities; if chosen, Wall Street over de minimus progress from year to the impact that this had on our fam- consumer protections; if chosen, spe- year—this is Justice Roberts, a very ily.’’ She said his ruling ‘‘set the prece- cial interest money over citizens—that conservative Chief Justice—can hardly dent that a company’s needs come be- is the Court we have seen in far too be said to have been offered an edu- fore workers like her mother.’’ cation at all. many 5-to-4 decisions, as Senator At a time when Americans work WHITEHOUSE has pointed out so effec- In other words, what Judge Gorsuch longer and harder than ever before, tively on this floor. thinks and thought about this case was The misguided idea that corporations that doing only a little bit for this stu- when we devalue work in this country, are people is far outside the main- dent was meeting the obligation of this when workers’ wages—for huge per- stream of what most Ohioans believe. civilized society that we are proud of. centages of workers in this country— It may work for graduates of Harvard Fortunately, the eight members of the are stagnant, when people work longer and Yale Law School. Interestingly, if Supreme Court—four Republican con- and harder with less and less to show Judge Gorsuch is approved, all nine of servative nominees, four more mod- for it, the last thing we need to do is the Supreme Court Justices will have erate to liberal nominees from the elevate someone who sees workers as attended Harvard or Yale Law School. Democrats—unanimously came to- nothing more than a cost to be mini- I don’t know what is wrong with Ohio gether and disagreed with Judge mized. State or the University of Toledo or Gorsuch. But think about what can happen the That is what is at stake here. We are Akron University or University of Cin- talking about putting someone on the cinnati or Case Western or Michigan or next time. If an Ohio family has a child with a learning disability and struggles Court who wants to give corporations Chicago or anywhere else. That is special rights, but he has a record of ig- whom Presidents have chosen; those with that school system, they won’t find sympathy from Justice Gorsuch. noring the rights of ordinary citizens, are the people we seem to confirm. choosing corporations over people, say- But this view that corporations are In fact, forget sympathy. They can’t ing that corporations are, in fact, peo- people simply doesn’t wash with the count on him to protect their child ple. That means that he is almost al- American people. It is how we got rules under the law. Take a look at the case of Alphonse ways, in his cases, choosing corpora- that allow Wall Street banks and hedge Maddin, the truckdriver from Michi- tions over workers, choosing polluters funds to wreak havoc on ordinary gan. He was hauling meat through Illi- working people and ordinary working over communities. nois when he stopped to refuel. His families, with no consequences. Judge Gorsuch’s record makes clear Judge Gorsuch himself has argued brakes froze. He was stranded. He that he would turn back the clock on a against the rights of working Ameri- called for help, for a company repair woman’s right to make her own unit. He waited for hours for help. He cans to band together to hold Wall healthcare decisions, or LBGT rights, nearly froze to death. He couldn’t feel Street and corporations accountable. or clean air and clean water, or safe his legs. It was 14-degrees below zero in He ruled against children with autism. the truck. He needed to get to shelter food and medicine. He ruled against students with disabil- or risk losing his limbs or worse. That is what is at stake here. If the ities. We have a President in the White But his company fired him. They Senate does not reject his nomination, House who makes fun of disabled peo- claimed he abandoned his cargo. Mr. the decisions Judge Gorsuch hands ple. Now, we are going to put a Justice Maddin later returned to get the cargo down will haunt our Nation for genera- on the Court who rules against stu- and completed his job. But it just did tions. My opposition to this nominee dents with disabilities. We have a Sec- not matter to the company. To the has nothing to do with what has oc- retary of Education who barely knew company, the cargo was more impor- curred in the Senate over the past 8 what IDEA was—the provision of the tant than Mr. Maddin’s life. To Judge years, as despicable as it has been. It law that guarantees disabled students Gorsuch, that company’s interests an education. has everything to do with what could were more important than Mr. Maddin, happen over the next 100. Why we are moving in this direction, more important than his health, more I think, amazes most people in this important than his life. This is about our children and our country, whether you have a disabled Imagine that. That is what we mean grandchildren. Seven of the eight cur- person in your family or not. His views when we say he puts corporations rent justices have met the 60-vote of protecting students with disabilities ahead of workers. At the beginning, benchmark. In other words, seven of are so outside the mainstream that you remember I said there is this rel- the eight justices on the Court right last month, the Supreme Court unani- atively new idea in American jurispru- now were fairminded enough and cen- mously rejected his reasoning. dence that corporations are individuals trist enough and agreeable enough that A boy with autism, Luke, wasn’t and people are corporations. When you far more than 60 Senators—people in making progress in school, and it was say that, it means that you side with both parties—came together to confirm recommended that he be placed in a corporations over workers. You side those nominees. residential program. An impartial with polluters over communities. You With so much at stake, it is up to hearing officer and two different judges side with Wall Street over consumer agreed. But Judge Gorsuch disagreed. Judge Gorsuch to earn the votes of 60 protections. You side with big, dark Members of this body. I do not believe He said that, as long as a student with money from billionaires in Citizens someone who fundamentally wants to a learning disability is making ‘‘mere- United over citizens. ly . . . more than de minimus’’ Take a look at the case of a mother give and has given corporations more progress in his or her education, the who had leukemia and had to take rights than individual citizens has school district didn’t have to do any- time off for treatment. After the treat- earned that broad support. The solu- thing else. Think of that. That student, ment was over, her doctors advised her tion is not to change the rules; it is to he counts a little bit, but he really not to return to work quite yet. There change the nominee. doesn’t count that much. He doesn’t was a flu epidemic. Her immune system That is what we mean by advice and count as a full human being with full was compromised from chemotherapy. consent. The American people need a rights and full citizenship in this coun- But her employer told her she needed Supreme Court Justice who looks out try. to show up within a week or they for the interests of all Americans, not If your disabled child is getting more would fire her despite 15 years of dedi- just the 1 percent, not just the most than nothing, I guess that is good cated service. Guess who Judge powerful, not just the most privileged. enough, according to Judge Gorsuch. Gorsuch sided with? It was not the That is why I oppose Judge Gorsuch’s Luckily, this Supreme Court, as con- worker suffering from cancer, who had confirmation to the U.S. Supreme servative as it usually is, overturned dedicated a decade and a half of her life Court. Judge Gorsuch’s precedent that denied to her employer and who wanted to re- The PRESIDING OFFICER. The Sen- a real education to students like Luke. turn to work, but she simply was ad- ator from Ohio. Again, they overturned him unani- vised against it by her doctor. mously. Chief Justice Roberts noted This woman’s daughter, Katherine, Mr. PORTMAN. Mr. President, I that a student offered an educational said that when Judge Gorsuch issued spoke on the Neil Gorsuch nomination

VerDate Sep 11 2014 06:19 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00092 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.253 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2349 last week, and I intend to speak on it and chaired that for 9 years. I am still be committing crimes, fraud, and theft again tomorrow. Let me just say that I very involved with that group, but I to pay for that habit. support Neil Gorsuch as the nominee to also got involved with legislation to In my State of Ohio—and I will bet in the Supreme Court. He is a good man. try to do things to actually reduce the your State—the No. 1 cause of crime is He is a mainstream jurist, incredibly demand for drugs, because that is so opioids. A lot of these people have lost qualified. I am happy to strongly sup- important. a job or can’t get a job. I talked to port him for the Court. Here we are again. The crisis we had some business folks over the weekend OPIOID EPIDEMIC then was mostly crack cocaine, mari- in Ohio who talked about regulations Tonight, Mr. President, I want to juana. Then it was methamphetamines, and taxes. They said: You know, this talk about another issue, one that I bath salts. But I have never seen any- drug issue is affecting every single one hope can continue to bring us together thing like this. This is the worst. If you of us. We can’t get people to pass a here in this body and also bring our don’t think it is the worst drug crisis drug test. We have employees who are country together. I rise today to talk we have ever faced, then think about now addicted to prescription drugs or about what a lot of experts say is the this. Look at this chart of drug over- heroin and their absenteeism and in- worst drug crisis in the history of our dose deaths in America. ability to come to work is affecting our great country—the worst. It is the Drug overdoses are now the leading economy. opioid epidemic. This is the addiction cause of accidental death—the leading So this is something that is affecting to heroin, prescription drugs, synthetic cause—in my home State of Ohio, and all of us. Of course, many have broken heroins like fentanyl. The newest probably in your State and in our relationships with their families and threat, this synthetic fentanyl, is com- country. This is from 2015, the most re- their loved ones. I cannot tell you the ing into our communities from other cent year for which we have complete number of people who have told me, countries, particularly China. data. Nearly two-thirds of the deaths and I have probably met with 1,000 ad- There are laboratories in China were because of the prescription pain- dicts or recovering addicts over the where evil scientists are putting to- killer heroin-fentanyl issue, or syn- last few years. I can’t tell you how gether these concoctions and sending thetic forms of heroin. many people have told me: Drugs be- them through the U.S. mail system Drug overdoses are not now just the came everything, and I pushed my fam- into our communities. leading cause of death. Overdoses kill ily out, and pushed my friends out, and China is doing it on a scale that is more Americans than guns do. This pushed my job away, and it left me in devastating to our communities. As a next chart will show that, according to a situation where I was broken. result, I have urged President Trump the Centers for Disease Control and But living without hope is something to prioritize this issue in his meeting Prevention, more Americans died from that we can deal with, because there with President Xi in Florida later this drug overdoses in 2015 than died from are ways for us to get people into week. China has banned one synthetic HIV/AIDS at the height of that epi- treatment and to get people into recov- form of heroin, carfentanil, recently, demic. The peak of the AIDS epidemic ery to help them. We are in a crisis. but there is a lot more to do. I am urg- was 1995. This is 2015 with regard to Some have asked me: Well, how did we ing President Trump to make it clear drug overdoses. get here? That is usually a good start to President Xi that we will do every- According to an article in the New to this: How do we get out of it? How thing we need to do to keep this poison York Times, more than four times as did we get here is complicated. But ac- out of our communities. many people are dying every day from cording to the Centers for Disease Con- This epidemic is affecting every sin- this epidemic than were dying at the trol and Preventions, those who are ad- gle one of the States represented here peak of the crack epidemic. In the last dicted to prescription painkillers are 40 in this body. I know the Presiding Offi- 3 years, more Americans have died of times more likely to be addicted to cer knows that because I know he has drug overdoses than died in the Viet- heroin. been involved in his own State. It is af- nam war. Let me look at this a different way. fecting your home town, whoever you Unfortunately, we have reasons to Four out of five heroin addicts started are and wherever you are in the United believe that this crisis is getting worse, with prescription drugs. So this issue States. Unfortunately, it is affecting not better. According to recent figures, of prescription drugs, overprescribing, people you probably know. fatal overdoses due to prescription is a huge part of how this happened in Every day we are now losing 144 painkillers, heroin, or synthetic heroin the first place. Increasingly, what we Americans to drug overdoses, most of in 2016 alone went up 26 percent in Con- have seen in all of our States is addic- which are from overdoses of opioids. necticut, 35 percent in Delaware, and 39 tion starting with these drugs and then That is one American life lost every 12 percent in Maine. During the first switching to cheaper and more acces- minutes. That will be about the length three quarters of 2016, deaths from sible heroin, and then switching again of this speech. Look at your watch. In overdoses in Maryland increased 62 per- to sometimes more powerful forms of the next hour, five Americans will die cent. In Ohio they increased 20 percent heroin like carfentanil, maybe 30 to 50 of a drug overdose. the last 2 years in a row. times more powerful than heroin. That I have been working on this issue for So we have seen this huge spike here is what is taking so many lives at such a long time. I first got involved over 20 in deaths from overdoses, starting in an alarming pace. The epidemic started years ago when I was in the House of about 2010 and going up. This is with with overprescribing. The United Representatives and a constituent regard to heroin. This is with regard to States uses more prescription pain came to me because her son had died of non-methadone synthetic opioids—in killers than any other country in the a combination of smoking dope and other words, fentanyl, carfentanil, U4, world. It is not even close. Look at huffing gasoline. She came to me and and other synthetic heroins. these numbers here. This is the daily said: What are you doing about it? This is a crisis. It is one that, unfor- opioid dose for over a million people. I was ready. I talked to her about the tunately, is affecting every single com- Look at the United States as compared fact that we had $15 billion devoted to munity—whether you are in an urban, to every other country in the world. interdicting drugs and incarcerating suburban, or rural community, wheth- This is using 2014 data, and the num- people and so on. er you are young or old, regardless of bers may have gotten better because of She said: What are you doing to help your walk in life. the work being done to cut back on me and my community? I have gone to The issue, of course, is much bigger painkillers. But according to the Amer- my church. They are in denial. I have than just the tragedy of overdose ican Society of Interventional Pain gone to the school, and they say it is deaths. It is also about people whose Physicians, we consume nearly 70 per- not a problem here. I have gone to my lives have gotten off track because of cent in this country—5 percent of the neighbors, and they won’t come to- these drugs and because of the addic- world’s population and nearly 70 per- gether and talk about it. tion. There are 200,000 people in Ohio cent of the world’s painkillers. So we got involved in this issue, and alone who are living with an addiction In 2012, that number was 75 percent. I set up our own community coalition to these drugs. By the way, if you are It is still not even close on a per-person back in my home town of Cincinnati addicted, you are much more likely to basis. For every American, there are 50

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00093 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.255 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2350 CONGRESSIONAL RECORD — SENATE April 5, 2017 pain pills in this country, and second course, but also, we know now, cocaine. term recovery? Have they had more place is Canada with 30 pain pills. They are mixing it with marijuana, success there? According to the National Institute mixing it with other drugs, and not let- All of this has led us to put together on Drug Abuse, painkiller prescription ting people know. this legislation, the Comprehensive Ad- sales nearly quadrupled from just 1999 We had a 14-year-old girl recently die diction and Recovery Act, that actu- to 2014. That number finally peaked in in Dayton, OH. She was with her ally funds programs like drug courts 2012, by the way, and since then has friends, snorting what she was told was that are working around the country. come down slightly. In 2012, there were heroin. She had done it before. But this They take people, diverting them from more prescriptions for painkillers in was fentanyl, and it killed her in- prison, and say: As long as you stay Ohio than there were people in Ohio. stantly. clean, you can stay out of jail, because There were more prescriptions for pain- More than 1,000 Ohioans were killed you are a user, you are not a pusher. killers—not pills, prescriptions—than by fentanyl in 2015—more than double But you have to stay clean. there were people in Ohio. By the way, the previous year and more than 10 Then they provide them alternatives, that was also true in 11 other States. times the number in 2013. In Cleveland, including using drugs that reduce the Fortunately in Ohio, we have made for example, there have been more cravings. If you reduce the craving for some progress under the leadership of overdoses from fentanyl in the past 10 opioids, that is proving to be very, very Governor Kasich, Lieutenant Governor months than there had been in the past successful in some cases. Dimitrol is Taylor, Attorney General DeWine, and 10 years. In Columbus, there have al- the drug they use mostly in Ohio to do the State legislature. They have taken ready been half as many fentanyl that. There are some great examples of some important steps to cut back on overdoses in the first 3 months of this people who have gone through the drug painkiller prescriptions. We have cut year as there were all of last year. This court process who have now been clean them back by about one-fifth, about 20 is why I say fentanyl is the new risk, for a few years. They are back to work. percent since they peaked in 2012, but the new danger. They are back with their families. that number is still way too high. Ac- As one father who lost his son to an They are back as contributing mem- cording to the Ohio Board of Phar- overdose told me: Every time you en- bers of society. So there is hope. We macy, 631 million pain pills were pre- gage in taking drugs, you are playing have seen how it can work. scribed to Ohioans last year. We are Russian roulette because you don’t CARA is the first legislation Con- also still dealing with the consequences know what is in it. gress ever passed to promote long-term of a lot of the addictions that got In my hometown of Cincinnati, recovery. Why? Because we have started in 2011, 2010, or before. fentanyl deaths now surpass heroin looked around the country and had ex- The number of prescriptions has deaths. Drug overdose deaths in Cin- perts here. We figured out that the risen, just as the addiction to opioids cinnati increased by 40 percent from treatment programs are important, has risen. Drug cartels have followed 2014 to 2015. Over that same timeframe, and before that, the detox program is this prescription drug epidemic, bring- in just 1 year, heroin overdoses in- important. But what is leading to more ing in heroin. Those drug cartels flood- creased 12 percent, while fentanyl over- success is longer term recovery pro- ed my State and probably a lot flooded dose deaths increased 153 percent. grams. a lot of your States with this cheaper, These numbers are very disturbing. As an example, think about being in more accessible heroin, now synthetic They are discouraging, too, because it detox for a week and then maybe a cou- heroin. seems like we just can’t turn the tide. ple weeks in a treatment program and According to the National Institute It is easy to feel as though we just then going into a sober housing ar- on Drug Abuse, Mexican heroin produc- can’t do anything, that we are para- rangement where you have regular tion alone increased sixfold in just 4 lyzed, but there is actually a lot we can meetings, where you are getting sup- years—from eight metric tons in 2005 do to help, and we can and should. port from fellow recovering addicts. to 50 metric tons in 2009. That number Here in the Senate, we have already That seems to work longer. You are is now 70 metric tons, and it just keeps taken some very important steps in the there. It seems to work better for most rising. last year. About 9 months ago, we Americans. According to the Office of National passed legislation called the Com- Unfortunately, we do not have all of Drug Control Policy, here in this coun- prehensive Addiction and Recovery CARA’s legislation fully implemented try, Mexican opium poppy planting in- Act, CARA. Last year, we passed the yet. Only three of its eight programs creased by 64 percent just from 2014 to 21st Century Cures Act. Those two to- have been implemented. It has been a 2015. So it is getting worse, not better. gether provide much more funding for while. It has been about 9 months. It is According to the Congressional Re- this issue. The Cures Act alone is $500 time to push all of those programs. search Service, virtually all of the her- million more this year going back to I pushed the Obama administration oin produced in Mexico is consumed the States to provide funding primarily on this. I am now pushing the Trump here in the United States of America. for treatment for this increase in over- administration. Last week, I was de- According to the Centers for Disease dose deaths. There will be $500 million lighted that the Trump administration Control and Prevention, heroin use authorized again next year. We have to announced the creation of a commis- among young people has doubled in the be sure that gets into the appropria- sion on the opioid epidemic, led by New last decade, among young people 18 to tions bill. Jersey Governor Chris Christie, who 25 years old. We also have seen, I think much has a real passion for this issue. I com- This affects all of us. It knows no ZIP more importantly in a way, through mend the President and Governor Code. It certainly knows no walk of the Comprehensive Addiction and Re- Christie for their commitment to mak- life. covery Act—separate legislation—that ing progress on the issue. Their leader- Since 2010, heroin overdose deaths we are beginning to fund directly pro- ship and their partnership with Con- have doubled among Hispanic Ameri- grams that work. We spent 3 years gress will make a difference. cans, African Americans, Native Amer- looking around the country and had Today I talked to General Kelly, the icans, and Whites. five conferences here in Washington, new Secretary of Homeland Security. A lot of the people who are addicted DC. We brought experts in from all He is going to be on the commission. to prescription drugs have switched to over the country who told us what the He said they are going to report about heroin instead. Now we are seeing that best practices were. What is the best the problem within 90 days. We know a heroin addicts are switching also, even prevention technique that is working? lot about the problem. We also have to if they don’t know they are doing it. How do we get kids not to make these be sure we are seeing some action. They are switching to fentanyl and decisions? What is the best thing that What I would suggest today is that carfentanil. Again, it could be up to 50 is happening in terms of treatment, the administration work hard to imple- times more powerful than heroin. and then longer term recovery, what ment the remaining five CARA grant Sometimes they don’t know it because works and what doesn’t work. Is medi- programs that are not yet up and run- the traffickers are sprinkling the cation-assisted treatment better? Is it ning. For example, it has been 8 fentanyl in other drugs—heroin, of better? Does it rely more on longer months, almost 9 months, since CARA

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00094 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.257 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2351 was signed into law. Yet we still don’t community leaders who were in- drug monitoring program. They have have the grant for naloxone up and volved—they all said: Get this legisla- to access the drug monitoring program running. Our States and local commu- tion implemented. We need it. before they give a prescription to be nities need this Narcan on the street to On Friday afternoon, I went to Cleve- sure the person isn’t filling the pre- save people’s lives, because this is a land and toured the St. Vincent Char- scription with them that they have al- miracle drug that reverses the effects ity Medical Center with addiction spe- ready filled somewhere else. Unfortu- of an overdose, but we also need to get cialist Dr. Ted Parren. What an amaz- nately, there is a lot of that abuse still more training for some of our first re- ing guy he is. This is in a hospital set- out there. Sometimes it is across State sponders so they can administer it ting where they have a detox unit and lines, which is why Federal legislation more effectively, which is particularly a treatment center, which is very un- is required. Our legislation requires more important right now with this usual. I think it is the only one of its that States work better together to en- new drug, the fentanyl, the synthetic kind in Cleveland, and it is one of a few sure that the Prescription Drug Moni- drug coming in, because synthetic her- in the country where, within a hospital toring Programs are talking to each oin requires sometimes not one, not setting, these people are getting every- other. two but four or five uses of Narcan— thing they need. It is a very com- By the way, if people don’t do this maybe more—to save someone’s life. prehensive approach. They deal with under our legislation—the pharmacists, So our first responders are asking for mental health issues, of course, but the doctors, and the States—then they this help. also other physical issues people have, have their Federal funding pulled back We still don’t have the grant for and it is helpful to have it all together that we talked about earlier on the medication-assisted treatment up and there at that center. I thank the sisters CARA legislation. running. We still don’t have the grant for what they are doing because they If you see a sign of addiction start- for pregnant and postpartum women’s are supporting this, and sometimes it ing, our legislation requires that you treatment providers up and running. is quite expensive to have a treatment let the patient’s doctor know that so This will help to ensure we have fewer program. At St. Vincent’s, they are we can begin to identify the people who babies who are born with this addic- doing an awesome job. have an addiction and get them the tion. Let’s get going on these. treatment they need. For all of us here in Congress, let’s be Everyone there told me the same I think this is going to be a good bill sure that we fully fund CARA. It is $182 thing that I hear across Ohio—that because it will lead to a smarter and million a year, every year, in addition their services have, unfortunately, more effective use of taxpayer dollars, to what we were spending on opioids. never been in greater demand. They and more importantly, of course, it is We need to be sure that funding is have a waiting list. They say the situa- going to prevent a lot of new addic- there, that these programs are work- tion is getting worse, not better. I tions from starting in the first place. ing, and that our communities begin to think that is true in your State, too, That, of course, would save lives. get more of the help they need. These because according to the Substance Congress can also do something else evidence-based programs that work are Abuse and Mental Health Administra- that is really important, and that is to what we ought to be supporting, and tion, SAMHSA, 9 out of 10 of the 22 give law enforcement better tools to be that is exactly what the legislation million Americans who are suffering able to keep some of this poison out of does. from addiction are not getting the our communities. So the prevention I thank Vice President PENCE, who treatment they need—9 out of 10. was in Ohio on Saturday. It was a CARA and the Cures Act will help and the treatment and the recovery meeting about the economic issues we change that. and Narcan for our first responders— faced as a country. He talked about tax People need to change that in their they are all very important, but let’s reform and regulations and skills own hearts. They need to step forward also keep some of this out. Let’s do a training, but he also talked about this and seek the treatment they need. We better job of stopping the heroin at the issue. I think it is important that we need to take away the stigma of addic- southern border. Let’s do a better job are all talking about this issue back tion because it is an illness. We need to of stopping the fentanyl, which is this home and raising awareness hopefully treat it as an illness because that new synthetic heroin we are talking to save lives, to keep people from going would help people come forward, admit about that is causing so many down this path but also to ensure that they have a problem, and get the treat- overdoses and deaths. Let’s do a better our fellow citizens know the impor- ment they need. Their families and job of keeping that out. tance of Congress and State legisla- their communities are desperate for This should be a no-brainer, in my tures and local communities getting that to happen. CARA and Cures will view, because it is coming in through engaged with it all. Everyone must get help change all that. the U.S. mail system. We know this. involved. I applaud my colleagues here, Repub- All the studies show this. Most of these I was in Youngstown, OH, on Friday, lican and Democrat alike, for moving synthetic drugs are being made in labs and I held a roundtable at the Neil forward on this legislation over the in China, and they are shipped by mail Kennedy Recovery Center. This is one last year, but there is a lot more work to traffickers in the United States, of the first programs of its kind in the to do. We should continue to address sometimes to Mexico as well. Typically country. It started in the late 1940s. It the underlying issue of overprescribing. that is done through the Postal Serv- focused more at that time on alco- It started this epidemic in the first ice. Why? Because the private carriers holism. Executive Director Carolyn place. We talked about the number of like UPS or FedEx or DHL and others Givens was there with her staff. They prescriptions that are still out there. require, when you ship something, that are incredibly compassionate people. Last week, I joined with my col- you have advance information provided She told me a lot of stories. league Senator AMY KLOBUCHAR to in- to the Customs and Border Protection I was able to meet with some of the troduce bipartisan legislation called and to others as to where the package recovering addicts at the center. One the Prescription Drug Monitoring Act is from, what is in it, where it is going. told me his name was Michael. He told to keep better track of prescription The post office doesn’t require that. Is me that center saved his life. It saved painkillers, keep them out of the it any wonder that traffickers are his life. This is a guy who worked for wrong hands, and identify an addiction using the Postal Service rather than years at utility companies. He is a as early as possible so that it can be one of these private carriers? skilled worker. He got involved with treated. Law enforcement came to us and told prescription drugs because of an acci- This goes to the pharmacist. You will us that they could use this data—it is dent or an injury, and then he ended up have to report when someone gets a electronic data provided up front—be- moving to heroin, which was cheaper pain pill prescription. They have to put cause that would enable them to deter- and more accessible. Then he found his it on the Prescription Drug Monitoring mine the suspect packages. Of the mil- life spinning out of control. Now he is Program. lions of packages that come into our there, and he is getting back on track. It goes to doctors. They have to be country, they have to know how to find Everybody, by the way, at the round- sure that when they are prescribing that needle in the haystack. That is table who was there—the staff and medication, that that is part of the why they want the ability to find these

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He agreed with me Join me and join the 10 other Sen- recently introduced it again this year that the STOP Act would ‘‘help [Cus- ators in pushing back against poi- with Senator KLOBUCHAR, Senator toms] officers target illegal shipments sonous synthetic heroin, which is com- RUBIO, Senator HASSAN, and many oth- . . . reduce the ability for the post of- ing into our communities, by sup- ers here in the Chamber. It is a bipar- fice to be used for the illicit shopping porting the STOP Act as a cosponsor so tisan bill, called the Synthetic Traf- of all kinds of contraband . . . [and] be that we can get this bill to the floor ficking and Overdose Prevention Act, helpful to be able to identify packages’’ and get it to the President for his sig- or the STOP Act. It closes this loop- of synthetic drugs. He is right. We need nature. hole we talked about within the Postal the administration’s help and push for I believe these two pieces of legisla- Service and requires the post office to this legislation as well. Let’s get this tion, if allowed on the floor, will pass obtain advanced electronic data on done. overwhelmingly. I believe the Presi- packages before they cross our borders, President Trump, by the way, en- dent would sign them. Most impor- just like the private carriers have to dorsed this idea last year when he said tantly, I believe they would begin to do. during the campaign: save lives in the communities we all It is not a new idea, by the way. In We will close the shipping loopholes to represent. 2002, Congress placed this requirement China that others are exploiting to send dan- I yield the floor. gerous drugs across our borders and into the on private carriers. That is when it hands of our own Postal Service. These traf- I suggest the absence of a quorum. started. It also required that the post fickers use loopholes in the Postal Service to The PRESIDING OFFICER. The office review this and look into this. mail fentanyl and other drugs to users and clerk will call the roll. So, in 2002, this Congress was smart dealers in the United States. [The] Trump The senior assistant legislative clerk enough to say: This seems to make administration will crack down on this abuse proceeded to call the roll. sense. Let’s require the post office to and give law enforcement the tools they need Mr. DAINES. Mr. President, I ask look into it. We have seen the results. to accomplish this mission. unanimous consent that the order for The results are that traffickers stay Let’s get it done. the quorum call be rescinded. away from the private carriers because Again, I have asked President Trump The PRESIDING OFFICER. Without they know they can use the Postal to raise this issue with President Xi objection, it is so ordered. Jinping because China can do a lot Service and get away with it. f Traffickers are lacing the heroin on more to try to shut down these labora- the streets of America with these syn- tories in China, to try to stop some of NATIONAL PARK WEEK thetic drugs to make them stronger the materials that are coming into the Mr. DAINES. Mr. President, as a and more addictive. They are getting laboratories that make up this fifth-generation Montanan who grew more people addicted. Fentanyl is also fentanyl. By the way, it is in China’s up just a short drive from our Nation’s so powerful that it only takes a couple interest to do so. first national park, Yellowstone Na- of milligrams—the equivalent of a I have received information recently tional Park, and as chair of the Senate pinch of salt—to kill you. They say that there is leakage. What does that Energy and Natural Resources Sub- that three flakes can kill you. The fact mean? That means that some of this committee on National Parks, the res- fentanyl is going out to the country- that heroin is now being laced with olution before us is critically impor- side, to the suburbs of China, and to fentanyl, of course, makes it much tant to reassure the public that the the cities of China, and it is affecting more likely for you not only to have an U.S. Senate recognizes the remarkable their population. value our national parks bring to our overdose, because of the strength of This legislation already has a com- national heritage. this synthetic heroin, but also that you panion bill in the House. So this is not I especially want to thank my good will die from that overdose. Again, it is an issue in which the Senate can act friend from Hawaii, Senator HIRONO, much harder to use Narcan and to and then we cannot get it through the who serves as ranking member of our begin to save lives by using that and to process because we cannot get it reverse the effects of the overdose. subcommittee, for her partnership on through the House and the Senate. PAT So the STOP Act, to me, again, is bringing this resolution to the floor TIBERI and RICHARD NEAL have intro- something that we definitely ought to here this evening. She has been invalu- duced companion legislation—TIBERI, a do in this Chamber. It would restrict able in working together to bring us to Republican from Ohio, and NEAL, a this moment. the supply of these dangerous drugs, Democrat from Massachusetts. It is bi- In fact, 33 of our colleagues joined us raise the prices of these drugs, and partisan. It is the kind of legislation in submitting this resolution—nearly would make them harder to get. That that should draw bipartisan support, half Republican and half Democrat—in- is going to save lives. and we should get it done. Support for the STOP Act is growing. Is it a silver bullet? No, we do not cluding Alaska, Washington, Ten- Our bill has now been endorsed by the have a silver bullet. There is not one nessee, New Mexico, Oklahoma, West Fraternal Order of Police and by the silver bullet. There is a comprehensive Virginia, Missouri, Minnesota, Florida, Major County Sheriffs of America. approach here, and these two bills that Michigan, Colorado, Virginia, Lou- They are convinced that this tool will I have talked about are new steps that isiana, Ohio, California, Wyoming, work. Last Friday, I was in Columbus, we should take. Rhode Island, Maine, Arkansas, Wis- OH. I met with Franklin County dep- I urge my colleagues to continue to consin, and New Hampshire. There are uty sheriff Rick Minerd, also the dep- support the CARA legislation. Let’s small States and large States, States uty chief of the Columbus Police, Mike provide full funding. Let’s support the that boast vast landscapes and big Woods. We had the Cincinnati and Co- Cures legislation in the upcoming ap- game like Alaska and Montana, diverse lumbus directors of the Customs and propriations process. Let’s continue to ecosystems like the oceans of Hawaii Border Patrol—the chiefs—there to engage the good folks back home who or the Florida Everglades. Other States talk about it, and we had the Drug En- are trying, at the tip of the spear, to do boast historic and cultural treasures, forcement Agency’s special agents in all that they can in terms of providing like our hallowed battlefields in Vir- charge there with us. We also had peo- better treatment opportunities and ginia. ple who were on the investigative side longer term recoveries and who are At a time when our country and Con- of the Customs and Border Patrol. The going into our schools and talking gress seem to be torn, it is only fitting deputy attorney general of Ohio was about prevention so as to do all we can that tonight our national parks are there, Steve Schumaker, and others. to keep people from going into that going to bring us together for a mo- All of these law enforcement people funnel of addiction. ment, to bridge this political divide, to said: Give us this legislation. It is a Let’s pass this legislation. Join us in bring remarkable opportunities for cul- tool that we need. keeping better track of painkiller pre- tural education, outdoor recreation for

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However, Judge Gorsuch ruled brings additional strain to our national named Alphonse Maddin was trying to in favor of the school district, saying parks and strain to our infrastructure. complete a shipment driving all night, that all the school district had to do I am hopeful that with the adoption and his brakes froze in subzero tem- was provide an education that was of this resolution, we can all be re- peratures—which we have. The heater more than just the bare minimum— minded of the importance of continued in his cab broke as well. He called his just the bare minimum. He set a very investment in our national parks to en- company to report the issue and waited low bar for Luke and for students like sure their legacy truly endures for our for help to arrive. Luke, like my nephew Barry. children, grandchildren, and for gen- While he was waiting for hours in the Just to show how disconnected Judge erations to come. freezing subzero temperatures, he real- Gorsuch is from the lives of everyday Mr. President, as in legislative ses- ized he was having trouble breathing Americans, look at the Supreme Court sion, I ask unanimous consent that the and his body was going numb. He called ruling which occurred at the same time Senate proceed to the consideration of his company to report that he needed as Judge Gorsuch’s confirmation hear- S. Res. 117, submitted earlier today. to get somewhere warm, but they told ings. In a different case on the very The PRESIDING OFFICER. The him he needed to either wait for the re- same issue, the Supreme Court chal- clerk will report the resolution by pair person, or drag his trailer even lenged and rejected the standard and title. though the brakes were frozen. Worried interpretation that Judge Gorsuch be- The senior assistant legislative clerk he might freeze to death, he finally lieved should be provided for children read as follows: unhitched the trailer from his truck. and students with disabilities. They A resolution (S. Res. 117) designating the Mr. Maddin drove off to seek help, re- unanimously rejected the standard week of April 15, 2017, through April 23, 2017, turning in just 15 minutes with assist- that he approved. This is not the view as ‘‘National Park Week.’’ ance. He did what any of us faced with of a mainstream nominee. This is not There being no objection, the Senate a life-threatening situation would do. the view of a mainstream nominee. proceeded to consider the resolution. A week later, Mr. Maddin was fired I am also deeply concerned about Mr. DAINES. Mr. President, I ask from his job, even though he was trans- Judge Gorsuch’s opinions and how they unanimous consent that the resolution parent in his actions and completed his could affect women’s access to be agreed to, the preamble be agreed delivery. He completed his delivery, de- healthcare. In the Tenth Circuit’s to, and the motions to reconsider be spite the issues caused by his frozen Hobby Lobby decision, Judge Gorsuch considered made and laid upon the brakes and the broken heater. endorsed the idea that corporations table with no intervening action or de- Two different entities within the De- can deny their employees access to es- bate. partment of Labor ruled that what the sential healthcare services, including The PRESIDING OFFICER. Without trucking company did was illegal, and birth control. His concurring opinion objection, it is so ordered. that Mr. Maddin was protected under suggested that he supported the notion The resolution (S. Res. 117) was Federal law because his life was in dan- that for-profit corporations have the agreed to. ger. Thankfully, a majority of the right to deny women insurance cov- The preamble was agreed to. Tenth Circuit judges agreed. Judge erage or any form of contraception an (The resolution, with its preamble, is Gorsuch, however, disagreed, arguing employer disagrees with. This is both printed in today’s RECORD under ‘‘Sub- the law did not protect workers who alarming and unacceptable. It once mitted Resolutions.’’) drove away to avoid freezing to death. again shows how disconnected Judge Mr. DAINES. Mr. President, I suggest According to Judge Gorsuch’s inter- Gorsuch is from what women in Michi- the absence of a quorum. pretation, Mr. Maddin would have had gan and around the country experience. The PRESIDING OFFICER. The to choose between his job and his life. Judge Gorsuch did not recognize the clerk will call the roll. What is deeply concerning to me is impact of denying coverage to women The senior assistant legislative clerk that when he was asked at his nomina- employees and their families, and put- proceeded to call the roll. tion hearing what he would have done, ting those decisions in the hands of Ms. STABENOW. Mr. President, I ask he said he really hadn’t thought about their employers. Women in Michigan unanimous consent that the order for it. Judges should think about what is should not have to pay higher costs for the quorum call be rescinded. happening to people in situations as healthcare than men, and they should The PRESIDING OFFICER. Without they are ruling in a fair and impartial not be denied essential healthcare serv- objection, it is so ordered. way. This does not look like the ruling ices. These dangerous interpretations f of a mainstream nominee. will continue to take us down a path of His rulings don’t only affect Michi- permitting and protecting discrimina- EXECUTIVE CALENDAR—Continued gan workers. I am very concerned tion by corporations and institutions Ms. STABENOW. Mr. President, I about Judge Gorsuch’s rulings on legal over the rights of workers and con- rise this evening to talk about an issue protections for individuals with dis- sumers. Again, that is not a main- that will affect families all across abilities. We passed the Individuals stream nominee. Michigan, which is the nomination of with Disabilities Education Act to When it comes to supporting Judge Gorsuch to the Supreme Court. make sure that children with disabil- women—not just in healthcare, but in He has a long record of siding with spe- ities got the education they deserved, the workplace—Judge Gorsuch has had cial interests and institutions instead and that the education would be free some extremely troubling rulings. In of hard-working Americans, and this is and available to all children. 2003, a woman named Betty Pinkerton of great concern to me. That matters. Luke, a young boy from Colorado experienced several instances of dis- I am concerned with his rulings that with autism, was not able to receive gusting sexual harassment from a male fail to protect children and students the education he needed from his pub- supervisor at the Colorado Department with disabilities in schools, and I am lic school. His parents were able to en- of Transportation. Every time she worried that he will limit access to roll him in a private residential pro- made it clear his comments were not critical healthcare for women and that gram specializing in children with au- acceptable in any way, they continued he is not a mainstream candidate. I tism that was more suitable for his over the course of months. can’t support a nominee whom I be- needs so he could get what he needed She went to her office’s civil rights lieve is disconnected from the chal- for his development. staff and submitted a written com- lenges faced by families in Michigan His parents applied to the school dis- plaint, and he was removed as her su- and across America every day. trict for reimbursement, as was appro- pervisor. She was fired about a week

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Mr. President, I rise this are cases of serious importance to ev- upheld a ruling that claimed she wait- evening to speak about the nomination eryday Americans—cases involving ed too long—she waited too long to re- of Judge Gorsuch to be an Associate rules for consumer contracts, chal- port harassment—and believed that Justice of the U.S. Supreme Court. lenges to regulations, ensuring fair Pinkerton’s firing was performance Every Member of the United States play in labor standards, and attempts based—How often do we hear that in Senate has an obligation to review this by consumers to hold companies ac- these situations?—despite not being nomination thoroughly and to make a countable for product safety and much able to produce any real evidence that determination. I believe the advice and more. this was the case. He ruled that she consent duty of a Senator—certainly in Another concern I have about his couldn’t go to trial and present her my case, when I make decisions about nomination is that at some point in case in front of a jury. any judge for confirmation, but espe- the campaign of last year, the Repub- So when it comes to protecting cially for the Supreme Court—has to be lican nominee was given a list of names women in the workplace, we know that a decision grounded in a review of a from which he should choose, were he Judge Gorsuch has come up short. This number of considerations. I think they to be elected President. I would hope is not a mainstream position and not are generally the same no matter who that there would be a list of names acceptable, in my judgment, for any the nominee is, but sometimes they that any President would consider be- Supreme Court nominee, and not ac- can vary. I think in this case there are yond what we are told in published re- ceptable for what I want to see happen probably additional considerations ports was just 21 names, developed by for the people in Michigan. that I weighed. organizations on the far right. And I wish to end my speech on the im- Of course, we want to look at the that fact alone causes me great con- portance of consensus because that is nominee’s character and their integ- cern—that the President is permitted, what we should do here. That is how we rity, certainly their judicial tempera- according to this arrangement, this un- get things done. ment. Someone can be very capable as derstanding, only to consider a list of For decades, we have confirmed our a judge and very learned in the law, 21 names that those organizations de- Supreme Court nominees with con- but they may not have the tempera- veloped. sultation and consensus. We have ment or the integrity. The record of this judge indicates said—and I think it is the right thing— I don’t think there is any question also that he would only exacerbate the that we should have to have more than that there is nothing in the record that problem that I pointed to with regard just a simple majority to confirm indicates that Judge Gorsuch doesn’t to the corporate tilt of the current judges to the highest Court in the land have the experience or the character Roberts Court. In my judgment, by for a lifetime appointment. So it and integrity to do this job, and to do doing so, it would further stack the makes sense that we come together to it with the kind of temperament we deck against ordinary workers and do that. In fact, seven of the eight cur- have the right to expect from any families. It starts with his basic judi- rent U.S. Supreme Courts Justices on judge. cial philosophy. He employs the nar- the bench today received 60 votes or I also believe at the same time, rowest possible reading of Federal law more somewhere in their process—both though, that you have to do a review of and shows extreme skepticism—even President Bush’s and President the cases decided by the nominee—in hostility—toward executive agencies or Obama’s nominees, as well, those now this case, a judge on the Tenth Circuit what some might call administrative on the Court. Court of Appeals, a very similar kind of agencies, agencies that carry out the President Clinton, President Bush, job to that which the Supreme Court law in areas like labor or consumer and President Obama talked to Sen- Justice does. You are reviewing cases protections and the like. ators from both parties about their on appellate court. In Judge Gorsuch’s Many have expressed concerns about picks to get input as to whom would case, it is the Tenth Circuit—not the his opinion in the Hobby Lobby case, likely be supported and not supported. Supreme Court, but still appellate where Judge Gorsuch endorsed the idea This did not happen with Judge court decisions. that owners of for-profit corporations Gorsuch. President Trump had a list Part of that inquiry I believe is a re- can assert corporate religious liberty chosen by very narrow special interests view of an assessment, really, of this rights, opening the door potentially to and did not ask opinions of key people individual’s judicial philosophy. That widespread discrimination against on our side of the aisle as to what is where I will spend most of my time LGBT Americans and other Americans would make sense to get the consensus tonight. I will also talk about the rule as well. But a variety of other cases are to get 60 votes. change that might be upon us. equally illustrative of Judge Gorsuch’s I do not believe Judge Gorsuch will While reading Judge Gorsuch’s opin- troubling approach to the law. be fair and impartial, giving a fair shot ions, I developed very serious concerns I will give you just a few examples. to the workers and families in Michi- about his rigid judicial philosophy. One case involved the tragic death of a gan as well as around the country. My Judge Gorsuch’s opinions indicated, in trench hand who was electrocuted test is very much about what is best my judgment, an extremely conserv- while working as part of an excavation for the people I represent in Michigan. ative judicial approach. This leads him crew. The court reviewed a ruling by Who will be fair and impartial and give to come down disproportionately on the Department of Labor, punishing them a fair shot? the side of powerful interests, against the mining company for failing to pro- Because I do not believe he can do workers in many cases, and consumers vide proper safety training to the that, I cannot support his nomination. in other cases—a cause for particular worker. Judge Gorsuch mocked the De- He is not the right choice for this va- concern at a time when the Supreme partment of Labor’s ruling as nothing cancy. We can come together. I urge Court itself, under Chief Justice Rob- more than a ‘‘Delphic declaration’’ de- my colleagues to go back to the draw- erts, has become an ever more reliable void of necessary proof, and he con- ing board and bring in a consensus ally to big corporations. cluded that the agency was wrong to mainstream nominee. A major study published by the Min- penalize the company following the In the past, we have basically had a nesota Law Review in 2013, found that worker’s death. Fortunately, a major- practical rule of saying if the nominee the four conservative Justices cur- ity of the Tenth Circuit disagreed and cannot get 60 votes, we change the rently sitting on the Court are among affirmed the Department of Labor’s nominee. We don’t change the rules. It the six most business friendly Supreme ruling. is extremely concerning that this Court Justices since 1946. A review by Another case involved a truckdriver would not be the approach at this time. the Constitutional Accountability Cen- who was stranded on the side of the I urge that we come together, get a ter shows the consequences of the road at night in subzero temperatures, mainstream nominee, and be able to Court’s corporate tilt, finding that the with the brakes on his trailer frozen work together to get this done. national Chamber of Commerce has and the heater in his cab broken. He The PRESIDING OFFICER (Mr. had a success rate of 69 percent in cases called dispatch for help multiple times, GARDNER). The Senator from Pennsyl- before the Roberts Court, a significant but after hours of waiting in the freez- vania. increase over previous courts. These ing cold, this truckdriver was having

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In fact, trailer. dicial philosophy, and after a review, President Obama’s district court nomi- Three different authorities within as well, of the current state of this nees, during his first term, waited an the Department of Labor ruled against Court—especially the corporate tilt of average of 60 days longer for confirma- the company. Judge Gorsuch disagreed, this current Roberts Court—I have con- tion than those of President George W. parsing a Federal statute to argue that cluded that I could not support Judge Bush. the driver was not protected in his de- Gorsuch’s nomination to the Supreme I think the evidence is overwhelming. cision to drive away, despite the risk of Court. Senate Republicans’ obstruction of ju- freezing to death if he stayed put. I wanted to add some comments be- dicial nominations reached historic Again, fortunately, the majority of the fore concluding tonight about what levels under President Obama. So we Tenth Circuit Court disagreed, describ- this vote may mean to the Senate and are here at this point, and we have to ing the judge’s labored interpretation the rules of the Senate. It is my be- make a decision. My vote will be to in- of the statute as ‘‘curious,’’ and ruling lief—others, of course, disagree—but it sist on 60 votes; therefore, I will be vot- in favor of the truckdriver. is my belief that if you seek to become ing no on cloture and also voting no on I have a basic disagreement with an Associate Justice on the most pow- the nomination of Judge Gorsuch. Judge Gorsuch’s rulings regarding the erful Court in the world, you ought to I yield the floor. legal protections for individuals with be able to garner the support of at The PRESIDING OFFICER. The Sen- disabilities, especially students with least 60 members of the U.S. Senate. If ator from Minnesota. disabilities. In one case, he ruled your nomination to the Court is the Ms. KLOBUCHAR. Mr. President, I against parents who believed their au- subject of such consensus, you ought to come to the floor to join my colleagues tistic child was not receiving an ade- be able to get 60 votes in the U.S. Sen- in speaking on the nomination of quate education at his public school. A ate. If both your nomination and your Judge Neil Gorsuch to serve as an As- hearing officer, an administrative law judicial philosophy is seen as such a sociate Justice on the Supreme Court. judge, and a U.S. district court all mainstream nomination, you ought to As you know, Senators have a solemn found in favor of the family, ruling be able to get 60 votes. Despite that, it obligation to advise and consent on a that they were entitled to reimburse- is a point in time when we are having President’s nominee for the Supreme ment for tuition at a residential pro- a debate about how we arrived at this Court, and I take that obligation very gram tailored for children with autism. question of a potential change in the seriously. Judge Gorsuch reversed the rulings rules. I believe that the reason we got My goal during the hearing as a and, instead, articulated an extremely here is because of substantial and member of the committee was to un- narrow interpretation of Federal law— unyielding obstruction by Republicans derstand the judge’s view on the law, this particular Federal law that pro- in the U.S. Senate over a number of his judicial record, and his philosophy. tects students with disabilities, the years. We needed to know what kind of Jus- IDEA law, the Individuals with Disabil- Just consider this: From the found- tice he would be and what that would ities Education Act. ing of our Nation, through President mean for Americans. In 2004, Congress amended the IDEA, Obama’s first term when Senate Re- Although many cases decided by the in part, based upon findings that its publicans were in the minority, clo- lower courts are less complicated, even implications have been ‘‘impeded by ture—the motion to cut off debate and though some of them are complicated, low expectations.’’ Nevertheless, Judge proceed to a final vote—has been filed many of them are more straight- Gorsuch ruled that because the student in a total of just 147 nominations. Just forward than the ones that come before in this case made some progress in pub- 147 times in the total history of the the Supreme Court. The cases that go lic school, even though he could not U.S. Senate, the minority forced the before the Supreme Court are the hard- generalize his learning to settings out- majority to file cloture. Of all the est cases. They involve the most com- side of school—which is the goal of the Presidents before President Obama plicated legal gray areas. Individuals with Disabilities Education combined, cloture needed to be filed I have heard my colleagues many Act—the family, the judge believed, only on 68 of these nominations, but in times talk about some of the unani- was not entitled to tuition reimburse- President Obama’s first term before mous decisions that the judge was in- ment. That decision happened a num- Republicans took the majority of the volved in. I know that. But when I look ber years ago. Senate, Republicans refused to consent at the kinds of cases that come before It just so happens that the U.S. Su- to votes and forced the Democratic the Supreme Court, those are different preme Court, the current Court with leader to file cloture on 79 nomina- kinds of cases. As I looked over the only 8 members, voted 8 to 0 against tions—over 50 percent of all the cloture judge’s record, I tried to focus on situa- the basic position that Judge Gorsuch motions ever filed on nominations in tions where he faced hard cases like had in that education case—a different the history of the U.S. Senate. So half those he might decide as a Supreme case but the same question about what of those cloture petitions were filed Court Justice. In my mind, the ques- is the duty owed by a school district to just in the last couple of years. That tion was this: What would Judge a child with a disability. That ruling doesn’t even include what I think was Gorsuch do if he were appointed to the happened to be announced during the an outrageous obstruction that contin- Supreme Court? What kind of philos- week that Judge Gorsuch was in front ued once Republicans took the major- ophy would he have? of the Judiciary Committee—in fact, ity, culminating, of course, in their re- In difficult cases, one judicial ap- on one of the very days he was in front fusal to consider Judge Merrick Gar- proach is to try to find consensus by of the committee. A unanimous Court land’s nomination. So Judge Garland, ruling on the narrowest possible disagreed with his approach to those of the District of Columbia Circuit, the grounds. Judge Merrick Garland, who kinds of cases involving children with chief judge who had great support, I was nominated last year, was known disabilities in a public school. think, on both sides of the aisle—Judge and praised for that approach by Sen- These cases and others are illus- Garland had maybe a few meetings, no ators on both sides of the aisle. trative of a broader trend in the judge’s vote, and not even a hearing before the Congress actually provides a helpful jurisprudence, whether it is a case in- Judiciary Committee. analogy. When Democrats and Repub- volving an employee seeking redress According to the Congressional Re- licans pass legislation, we try to find for work place discrimination, hospital search Service, President Obama is the common ground. We often have dif- staff fighting for back pay after an un- only one of the five most recent Presi- ferent views, but we do find areas of lawful reduction in the work hours, or dents whose first term was marked by consensus. Sometimes that ground is a victim of improper conduct by a med- nominations that languished for over narrow, but we can find agreement and ical device company looking for jus- half a year on average. Also in his first then come together.

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00099 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.264 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2356 CONGRESSIONAL RECORD — SENATE April 5, 2017 In reviewing the judge’s record, I saw of life: the elderly; and those who are Was that enough? No. In the one that he often took a different ap- in the shadows of life: the needy, the passing mention in the 1996 case, which proach, one where he often tried to go sick, and the disabled.’’ was not binding, the language actually a step further than the consensus opin- The Supreme Court has honored that says ‘‘more than de minimus,’’ but the ion, sometimes really further than the principle. On the day of the judge’s judge went out of his way to add the consensus opinion by suggesting a pro- hearing, the Supreme Court, in an 8-to- word ‘‘merely’’ to that standard, which vocative change in the law or by mak- 0 unanimous decision, ruled against the had never even been in the case that ing a broader ideological leap, which I narrow interpretation of the IDEA em- was not binding on him to begin with. felt was not consistent with the prece- braced by Judge Gorsuch—an interpre- So he changed it and said ‘‘merely dent and was not consistent with the tation that limited the educational op- more than de minimus,’’ that that is kind of philosophy of a judge that, re- portunities of children with disabil- all the kind of education a kid with gardless of their political beliefs—I did ities. I could not agree with the 8-to-0 disabilities in that school district in not expect to agree with everything he decision more. Colorado would have to get. This is said or how he answered the questions, All children, particularly those with like if you say more than empty—the but what I saw was a strikingly dif- disabilities, deserve the tools they need gas tank is more than empty, which ferent philosophy. to succeed in life, and every Justice on means it could be a lot more than Many of the judge’s opinions pre- the Supreme Court has a duty to pro- empty. Adding ‘‘merely’’ puts it closer sented opportunities for narrow judi- tect these kids. So when the Supreme to empty. You just say it is merely cial consensus, but the judge decided Court ruled that morning and over- more than empty. The addition of a more than the case in front of him. turned the standard that the judge had single word made it more difficult for That is what concerns me if he were to embraced in this Tenth Circuit case, I children with disabilities to get help at be confirmed to the Supreme Court, asked him about his ‘‘merely more school. where he would have to decide the than de minimus’’ standard that he That is why it is hard for me to un- toughest cases and hardest legal ques- wrote into that opinion back in 2006. derstand why the judge said that the tions facing our country. In explaining his ruling, the judge ‘‘merely more than de minimus’’ stand- So after thorough examination and said that he was bound by precedent to ard was binding on him when he wrote consideration of his answers and the use the narrow standard that he used that opinion in 2006. It was not. He record, I have decided not to vote in in that case. He cited a 1996 case from added the word ‘‘merely,’’ and then he favor of the judge’s nomination. His ju- the Tenth Circuit—his circuit—that he used a standard that did not even de- dicial approach and his record on crit- said he was bound to follow. Now, he cide that 1996 case; that was from a dif- ical cases, including the rights of chil- was not on the court back in 1996, but ferent circuit. dren with disabilities, campaign fi- when he did the case in 2006, he used When interpreting the IDEA, the nance, and preserving health and safe- that 1996 case. So I looked at that case. judge once again went a step further ty protections, have led me to conclude During the hearing and at the Judici- instead of deciding the case on a nar- that I cannot support his nomination ary Committee business meeting ear- row ground. That matters because deci- to the Supreme Court. lier this week, my Republican col- sions like this have a dramatic impact Let me make this clear. Again, I did leagues repeated those words. They on the lives of children and families, not expect to agree with every opinion said that the judge was bound by prece- which is exactly what Justice Roberts he wrote or everything he said. I cer- dent to use his narrow, ‘‘merely more noted when he wrote the opinion 8-to- tainly did appreciate the introductions than de minimus’’ standard that had, 0 rejecting the standard that Judge of the Presiding Officer, as well as Sen- in fact, been rejected by the Supreme Gorsuch had used. ator BENNET, and the support he had Court just this past month. So I looked I have heard from families in my from Colorado. That meant something to see if, in fact, that was true. Was he State, and so many of them tell me to me. But then when I looked at the truly bound by precedent? That is pret- how IDEA has made a real difference record, what I saw time and time again ty important to me. There have been a for them. was a judge who clearly demonstrated number of decisions where he has gone My mom taught second grade in the the contrast between a narrow con- much further than he needed to, where Minnesota Public Schools until she was sensus-based approach and a more far- he, in my mind, has abandoned prece- 70 years old. I know from her how reaching one. dent. much she worked with those kids with One area where the judge has gone I thought, well, here we have a case disabilities and how much she cared further to issue broad rulings that that is fresh, right before us, and he about them. would have profound consequences on has said that he was simply following Here is an example I just learned people’s lives is in the case he decided the precedent, that he had no choice at about from my State. A mom from Wa- on children with disabilities. During all. Here is what I found: While the 1996 tertown, MN, told me about her son, the hearing, because this case had been case made a number of findings and who was born with Down syndrome. decided by the Supreme Court right be- concluded that the school district sat- She is so thankful for IDEA because its fore I got to ask questions, I asked a isfied the requirement in the IDEA protections ensures that he can have lot of questions about this case on the statute of providing an appropriate everyday life experiences. IDEA allows IDEA, also known as the Individuals education, the case never actually her son to be fully integrated with the With Disabilities Education Act. turned on the standard that the judge rest of the students in his school. As a The IDEA was passed to ensure that said he was bound by, that the judge result, he has made many friends and students with the disabilities are sup- said was precedent. Here is why: The built a strong social network. When ported in school. In my State, 124,000 1996 case only mentioned the de mini- she asks her son whether he likes children rely on this critical protec- mus standard once. It was a passing school, he always says, in a resounding tion. I occupy the Senate seat once reference. Even in that mention, the de voice: Yes. Those are the stakes of this held by Minnesota’s own Hubert Hum- minimus language is from a different legal debate. phrey—someone who, of course, was circuit; it was from the Third Circuit. Second, I wanted to focus on cam- never at a loss for words. In fact, this In that 1996 case that he claimed he paign finance. In my view, one of the very desk that I am standing behind was bound by and that my Republican most troubling court decisions in re- was the desk Hubert Humphrey signed colleagues keep mentioning that he cent years is Citizens United. Since and used. He delivered a speech 40 was bound by, there is no discussion Citizens United, dark money has been years ago, and one line of that speech about whether the benefits provided to spent in extraordinary sums, adding up is just as appropriate today as it was the high school student satisfied that to an estimated $800 million in just the back then. standard. The case simply did not turn past 6 years. This continues to have an He said: ‘‘The moral test of govern- on the de minimus language. I know outsized influence on our politics, dis- ment is how that government treats this seems in the weeds, but the court torting our representative democracy those who are in the dawn of life: the in 1996 never relied on the de minimus and hurting, in my mind, campaigns on children; those who are in the twilight standard to reach the result that it did. both sides of the aisle.

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00100 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.266 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2357 How does this apply to the judge? It In Gutierrez—the name of the case— As I look back at the judge’s record applies to the judge because of an opin- the judge went beyond the facts to sug- and his answers in the hearing, I am ion he wrote that is very relevant to gest overturning the long-established again reminded that it wasn’t a law this area of the law. That case, which precedent of Chevron. professor or a Federal jurist who was is called Riddle v. Hickenlooper, is a Chevron is a 33-year-old Supreme helped by a court’s reliance on Chevron narrow case about how campaign fi- Court case that ensures that the most in interpreting a Labor Department nance laws apply to certain kinds of complex regulatory decisions are made rule. It was an hourly Minnesota gro- contributions in Colorado, about if by the experts who are best equipped to cery store worker who got to keep his they are a major party or not major handle them, not by judges or lawyers hard-earned pension after the Eighth party. without any relevant technical knowl- Circuit Court relied on Chevron. The judge again decided that a nar- edge. When the Supreme Court stripped row consensus decision was not Justice Scalia again embraced the away the rules in the Citizens United enough. It was part of that decision, Chevron doctrine, and it has been used case that opened the door to unlimited but then he went out of his way to in more than 13,500 decisions. Chevron super PAC spending, it was not the write a separate concurring opinion to ensures that Federal health, safety, campaign financiers or the ad men who suggest that the court should, in fact, and education rules stay on the books. get paid to write these ads who were apply strict scrutiny to laws restrict- These rules protect everyone, from the hurt. It was the grandma in Lanesboro, ing campaign contributions. If the Su- hard-earned pension of an hourly Min- MN, who actually thought it mattered preme Court adopted the approach in nesota grocery store worker, to the when she sent her Senator a $10 cam- the judge’s opinion, it would com- clean water in our Great Lakes, to the paign contribution. promise the few remaining campaign difference between life and death for When Chief Justice Roberts wrote finance protections that are still on Minnesota iron ore workers. the unanimous opinion just this past the books, and it would make it even The judge’s approach would have ti- month, rejecting the ‘‘merely more more difficult for Congress to pass fu- tanic, real-world implications on the than de minimis’’ standard that Judge ture reforms. daily lives of Americans. When the The notion that Congress has little Gorsuch had used to limit the help kids judge wrote an opinion that suggested or no role in setting reasonable cam- with disabilities can get at school, the paign finance is in direct contradiction it might be time to ‘‘face the behe- Justice said: ‘‘When all is said and with where the American people are. In moth,’’ he suggested a change in the done, a student offered an educational recent polls, over three-quarters of law that would jeopardize countless program providing ‘merely more than Americans have said that we need rules, compromise important protec- de minimis’ progress from year to year sweeping new laws to reduce the influ- tions, and create widespread uncer- can hardly be said to have been offered ence of money in politics. While polls tainty in our laws. an education at all.’’ That is what the may not be a judge’s problem and I asked the judge about the uncer- Supreme Court said about how the should not be a judge’s problem, de- tainty that would result from over- standard that Judge Gorsuch wrote in mocracy is. When unlimited, undis- turning Chevron. I asked what he his opinion in the Tenth Circuit af- closed money floods our campaigns, it would replace it with. I didn’t get a di- fected students with disabilities. drowns out the people’s voices, and it rect response. The judge even said that In the end, I believe we need Justices undermines our elections and shakes he ‘‘didn’t know what all the con- who understand that the law is more the public’s trust in the process. sequences would be’’ and that he than a set of dusty books in the base- My colleagues and I repeatedly asked ‘‘wasn’t thinking about being a Su- ment stacks of a law library. It is the the judge about his views on campaign preme Court justice’’ when he was bedrock of our society. Above all, we finance laws and public disclosure re- writing the decision. need Justices who understand and will quirements. He declined to tell us what So what does all of this mean? It uphold the motto on the Supreme the proper legal standard would be for means that the judge has repeatedly Court building, to ensure all Americans evaluating campaign finance laws. He gone beyond the facts of the case, achieve ‘‘Equal Justice Under Law.’’ also would not give us a real sense of issuing separate concurrences with far- That is why I won’t be supporting the his views on public disclosure of cam- reaching effects or, as in the disability judge’s nomination to be an Associate paign contributions, although a major- decision, writing opinions with pro- Justice of the Supreme Court. ity of current Justices support this. found consequences. I yield the floor. During our exchange on campaign fi- When I read these opinions, I am re- The PRESIDING OFFICER. The Sen- nance, I was reminded of Justice minded of Justice Byron White, who I ator from Hawaii. Scalia’s support for greater public dis- know Judge Gorsuch clerked for and Mr. SCHATZ. Mr. President, what is closure and his comments on that greatly admired. Justice White has the purpose of the Senate? The authors topic. Justice Scalia said: been described by many as a Justice of the Constitution laid the foundation Requiring people to stand up in public for who was focused on deciding only the of the Senate without really knowing their political acts fosters civic courage, case in front of him. Here is a quote: what it would look like once it was without which democracy is doomed. For my ‘‘Time and again, Justice White avoid- standing. They knew it would rival and part, I do not look forward to a society ed broad, theoretical bases for a deci- restrain the House of Representatives. which, thanks to the Supreme Court, cam- sion, when a narrow, fact-specific ra- After all, the Senate has a higher age paigns anonymously and even exercises the requirement, Members serve 6-year direct democracy of initiative and ref- tionale would suffice.’’ erendum hidden from public scrutiny and There is a reason we have judges to terms, and they have to represent not protected from the accountability of criti- apply the law to the facts of a case. It just a district but an entire State. But cism. This does not resemble the Home of is because answers aren’t always as it was clear from the beginning of the the Brave. clear as we would like them to be, and formation of the Senate that it would The most striking example of a judge sometimes there is more than one rea- take time before the purpose of this choosing not to decide a case narrowly sonable interpretation of the law. The body was truly realized. based on the facts was the one last cases that get to the Supreme Court For several decades in our Nation’s year in which he wrote the opinion and are not the ones where everyone agreed history, it was the House of Represent- then wrote a concurrence to his own at the lower court level. They are the atives—not the Senate—that hosted opinion. As I noted at the Judiciary really hard cases. the great debates and introduced major hearing, it is better to write a concur- It is that discretion in making those legislation. It wasn’t until the Nation rence to your own opinion than write a decisions that makes it so critical that began to splinter in the shadow of slav- dissent to our own opinion. But still he Justices interpret the law evenly, with- ery that the Senate came into its own. felt compelled to write a concurrence out fear or favor and with the humility While the rules of the Senate gave us to what was an opinion that he wrote. to recognize the gravity of the office, its basic structure, it was the Members Mostly, judges are happy when they to respect the role of the judiciary, and of the Senate—the people who made up get their peers to agree to a decision, to understand the impact of their deci- this body—who had to stand up and but in this case, he went a step further. sions on people’s lives. lead. We remember them today as lions

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00101 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.267 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2358 CONGRESSIONAL RECORD — SENATE April 5, 2017 of the Senate: Daniel Webster, John of the Senate is achieved through bi- The legislative clerk proceeded to Calhoun, and Henry Clay. This body partisanship, deliberation, and com- call the roll. owes its status to them and their lead- promise. The 60-vote threshold for Su- Mr. SULLIVAN. Mr. President, I ask ership because they began to define the preme Court nominees preserves these unanimous consent that the order for Senate in a way that no one had before. ideals. Changing this rule will make it the quorum call be rescinded. Over time, this place became one harder to get there. The PRESIDING OFFICER. Without that valued bipartisanship, delibera- Look at the House of Representa- objection, it is so ordered. tion, and compromise. It has become a tives. Look at the way the House Intel- REMEMBERING DAN FAUSKE Chamber that balances the right to de- ligence Committee has dissolved so Mr. SULLIVAN. Mr. President, for bate with demands for action. quickly into partisanship, unable to do months, I have been coming down to In some of the toughest moments in its job. the floor every week to recognize our history, the Members of the Senate Look at the country. Look at the someone in my State who has made a have used this body to lead, particu- campaign last year. We are a country difference to our communities in Alas- larly when the President has faltered. divided. Polarization is at an all-time ka, someone who has devoted time and Take President Nixon. The Water- high. Now is not the time to crush a energy to making my State a better gate scandal had weakened the Presi- cornerstone of the Senate’s foundation. place to live. I call these individuals dency in ways that do-nothing Presi- I don’t think this is inevitable. This our Alaskan of the Week. dents never had. But the Senate, led by is not unstoppable. This is up to all of As I have said repeatedly to all of my a Member of the President’s own party, us. It is up to the Members of the Sen- colleagues and to those watching on didn’t stand by and watch the void, ate to decide if we are going to damage TV, I am a little biased here, but I be- unmoved. They filled the vacuum for the world’s greatest deliberative body lieve my State is the most beautiful in the good of the country. at a time when the country needs us the country and, I would argue, in the It is this kind of history that has the most. world. I urge everybody in this room, The Senate has always been defined shaped the Senate into what it is everybody watching on TV, to come to by its Members. The rules, the cus- today, a body that examines, considers, see for yourself. Take a trip to Alaska. toms, and the traditions—they help. and protects. It will be the trip of a lifetime. I guar- But at the end of the day, it is the Senator Byrd, the longest serving antee you. Senator in U.S. history once said: ‘‘The Members of the Senate—like Calhoun, It is the people who truly make my Webster, Clay, Kennedy, Inouye, Senate is a source of wisdom and judg- State unique, people who are helping HATCH, MCCAIN—who make the Senate ment—both on the actions of the lower each other, strong-willed, warm- house and on the executive.’’ relevant and necessary. We are going to find out who we are, hearted, tenacious people who have That is what the Senate is for. That as Senators. I would ask that at a min- worked tirelessly for years for all of is our purpose. We achieve that purpose imum, the Senate take its time on this those who live in Alaska. through customs and traditions; This week I would like to honor Dan decision. Don’t rush. That is not who through members who serve 6-year Fauske, one of the strongest willed, we are. That is not how we get to the terms and represent whole States; warmest hearted people I have ever best decisions. This is about the future through rules that force bipartisan- of the Senate and the future of the known. All he has done for us has made ship, deliberation, and compromise. Court. The nuclear option will mean Alaska a better place for literally Now the majority leader has placed nominees for the Supreme Court won’t thousands of people throughout our one of those rules on the chopping have to even meet with the minority State. block because they can’t get to 60. He Dan came to Alaska in 1974 after party to be confirmed. It will mean can’t find the 60 votes needed to end serving in the Army, as so many Alas- that the Senate’s habit of being slow— debate on the President’s nomination sometimes maddeningly slow—will go kans do. Like so many Alaskans, he ar- to the Supreme Court. away. That tradition that allows the rived with a glint of steel in his eye We shouldn’t be surprised to find our- center to hold—not just in this Cham- and a mission to help build our State. selves here because, after all, back in ber but across the country—will be un- Alaska is full of natural wonders, but February, President Trump told the dermined. our manmade wonders are also mar- majority leader to change the rules if So to my Republican colleagues, vels, and Dan wanted to be part of he had to. Now, as this administration please take a few weeks before you de- building more of those marvels for our closes in on its first 100 days without cide to change the Senate forever. State and for our country. passing a single piece of major legisla- Take your time here. This is probably He first arrived in the North Slope tion, the Senate majority leader is one of the most serious decisions that Borough—the top of the world—to help ready to fulfill the President’s request you are ever going to make as a Sen- the community build up their infra- and change the rule, instead of chang- ator because it is about the Senate structure and strengthen the Alaskan ing the nominee. itself. This is worth talking about. Native villages in the area. It was a The question I have for this body is This is worth deliberating over. It is time of enormous change for all of this: Should we change the rules in worth thinking over. Alaska, particularly the North Slope. order to give the President a win before Go home and talk to your constitu- Oil from the North Slope Prudhoe Bay, spring break? Should we be weakening ents. If you want to do this, you have the largest oilfield in North America, the Senate at a time when the execu- the votes. You can do this three Mon- had recently begun to flow down the tive branch is so weak? Isn’t it our ob- days from now, anytime you want. But Trans-Alaska System for 800 miles. The ligation to assert ourselves into this for goodness sake, there is no harm in largest land claims act in U.S. history, void, instead of receding from responsi- thinking about it. All we need are the Alaskan Native Claims Settlement bility? three members of the Republican Party Act, had recently passed, and the gov- I can think of no instance in the his- to go to the majority leader—either ernments in rural Alaska were being tory of any great legislative body in publicly or privately—and say: Give us formed and reformed to take advantage which a legislature decides to diminish some time to find another way to do of these opportunities. its own power. This is beyond strange this. Otherwise, you will make the Su- After Dan went back to school to re- in the world’s greatest deliberative preme Court, this place, and this coun- ceive a master’s degree in business ad- body, in the world’s most powerful leg- try more extreme and more divided. ministration from Gonzaga, he made islative Chamber. For what good rea- You will answer this difficult moment his way back to Alaska again to serve son would we give up our own preroga- in history by weakening one of the last as chief financial officer and chief ad- tives? bastions of bipartisanship, and I be- ministrative officer for Alaska’s North This administration has been ineffec- lieve you will regret it. Slope Borough, where he launched an tive. Now the Senate majority leader is I yield the floor. ambitious and ultimately successful suggesting that the Senate respond to I suggest the absence of a quorum. capital plan to provide basic neces- this executive weakness by weakening The PRESIDING OFFICER. The sities that so many Americans take for ourselves. This is wrong. The purpose clerk will call the roll. granted, like running water and sewer,

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00102 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.269 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2359 those kinds of services, to the villages My wife Julie and I will miss him and why. Their study leads to greater throughout the North Slope Borough, greatly. understanding of the issues we have again, on the top of the world. I yield the floor. faced and how they were resolved. According to Bill Tracey, Sr., from The PRESIDING OFFICER (Mr. As Senate majority leader, I encour- Point Lay, which is one of the villages SCOTT). The Senator from Colorado. age my colleagues to follow the advice there, who was a coworker at the time, f of H. Con. Res. 307, to preserve the ‘‘Dan’s excellent work ethic and skills records of your service, both paper and earned him the respect of the North LEGISLATIVE SESSION digital, so that the full history of the Slope leaders. . . . His accomplish- Mr. GARDNER. Mr. President, I ask Senate may be appreciated and under- ments were remarkable.’’ unanimous consent to proceed to legis- stood. Last year, when we observed With his beautiful and spirited wife lative session. Congress Week 2016, our President pro Elaine always by his side, Dan then The PRESIDING OFFICER. Without tempore, Senator HATCH, stated ‘‘Serv- moved his family to Anchorage to head objection, it is so ordered. ing as a member of the world’s greatest up the Alaska Housing Finance Cor- f deliberative body is no small honor; it poration. For 18 years, he managed is a tremendous privilege that none of MORNING BUSINESS HFC’s nearly $5 billion in assets. It is us should take for granted. The Amer- not an overstatement to say that he ican people have placed their con- revolutionized that agency, doing re- CONGRESS WEEK fidence in our ability to effect mean- markable things, including and most ingful change for the good of the coun- importantly helping thousands of Alas- Mr. MCCONNELL. Mr. President, I try. May we honor this sacred trust by kans—thousands of our constituents, wish to recognize that, 228 years ago keeping detailed archives of the work our fellow Alaskans—pursue their this week, Congress achieved its first we do here.’’ dream of buying an affordable home. quorum. The House of Representatives I join my esteemed colleague in that There is nothing more important than attained its quorum on April 1, 1789, sentiment and also ask my colleagues that. and the Senate reached that goal on to preserve their archival legacy. April 6, 1789. The Association of Cen- The Alaska Legislature just passed a f bill to name the Alaska Housing Fi- ters for the Study of Congress cele- nance Corporation the Daniel R. brates this anniversary by observing NATIONAL CRIME VICTIMS’ Fauske Building, and the dedication Congress Week, an annual weeklong RIGHTS WEEK ceremony will take place in Anchorage event that highlights the resources Mr. GRASSLEY. Mr. President, mil- on Saturday. available for the study of Congress and lions of Americans and thousands of As his bio indicates, there is no doubt features commemorative events at Iowans annually fall victim to sense- that for decades Dan Fauske served member institutions across the coun- less acts of crime. In their honor and in Alaska with his hands, his heart, and try. honor of the thousands of advocates, with his head. But a bio on paper can The Association of Centers for the first responders, crisis hotline volun- only tell you so much about a person; Study of Congress is composed of more teers, and others who work tirelessly to really appreciate him, you would than 40 universities and historical soci- on their behalf, I introduced a resolu- have to have been with him and eties, including the McConnell Center tion to commemorate National Crime watched the energy and can-do spirit at the University of Louisville, that Victims’ Rights Week. radiate from Dan Fauske. You had to work to preserve the historical collec- I thank Senators LEAHY, CRAPO, and watch him talk to people with respect tions of Members of Congress and en- FEINSTEIN for joining me as cosponsors and humor and understanding and a courage their use for educational pur- of this important resolution. In 2017, very keen intelligence. He had a big poses. The organization’s goal is to National Crime Victims’ Rights Week laugh—a very big laugh—and he told promote public understanding of the takes place from April 2 through April great stories. He also had that rare legislative process by focusing on the 8. We have commemorated the week ability to genuinely connect with ev- history of the Senate and the House every April since 1981. erybody he met, it didn’t matter who. representatives and Congress’s role in Here in Washington, DC, and across He was able to speak the language of a our constitutional system of govern- the Nation, activities are being orga- businessman, a builder, a veteran, a ment. nized to highlight and promote this public servant. He spoke the language Congress Week is designed to spark a year’s theme: ‘‘Strength. Resilience. of a father, a husband, a friend, and a closer examination of the first branch Justice.’’ The theme for 2017 recognizes true Alaskan. In doing so, he gained of government, to encourage schools to the strength of individual victims. It the respect of everybody, and I mean develop programs to highlight the highlights the resilience of survivors as everybody, in my State—politicians, work of Congress, and to stimulate well as the victim assistance organiza- State workers, military members, peo- more scholarly research into Congress tions who support survivors in their ef- ple from all across Alaska, people from and its history. forts to heal. And it reflects the impor- all across the political spectrum. If you Emphasizing the historical impor- tance of securing justice for crime vic- wanted something done and if you tance of Members’ records, H. Con. Res. tims. wanted it done right in Alaska, you 307 was passed unanimously in 2008. During this week, we also highlight asked Dan Fauske to help you do it. This resolution recommends that Mem- the contributions of the crisis hotline People trusted him. I trusted him. bers’ records be properly maintained, volunteers and staff, victims’ rights at- Most importantly, Dan was a great that each Member take all necessary torneys, advocates, sexual assault father to three great boys, D.J., Scott, measures to manage and preserve nurse examiners, police officers, and and Brad, and two daughters, Marcy them, that they arrange for the deposit other emergency responders who pro- and Kathy, and he was a great husband or donation of their records with a re- vide critical assistance to survivors of to his incredible, vivacious, and very search institution that is properly crime in communities across the strong wife Elaine. equipped to care for them, and that United States. On Friday, several of Mr. President, Dan Fauske passed they make them available for edu- these individuals will receive awards away this afternoon with his family cational purposes at an appropriate during a ceremony hosted by the Office and friends by his side. Our prayers and time. Members of Congress are respon- for Victims of Crime at the U.S. De- the prayers of so many Alaskans go out sible for preserving their own records partment of Justice. I extend my grati- to all of them during this very difficult of public service. tude to those award recipients for their time. For anyone watching, I humbly Members’ collections are essential work to assist victims of crime. ask that you say a prayer too. for public understanding of the vital Many of us in this Chamber have For all he has done for all of us, all role that Congress plays in our democ- championed landmark legislation to his memory will continue to do for all racy. As primary source materials, enhance the rights of crime victims. of us, Dan Fauske is our Alaskan of the they contain the most authentic record For example, I was an original cospon- Week. He was also my very good friend. of cause and effect of what happened sor of the 1984 Victims of Crime Act,

VerDate Sep 11 2014 05:29 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00103 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.270 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2360 CONGRESSIONAL RECORD — SENATE April 5, 2017 which established the Crime Victims fense systems, and cancel a new nu- MEASURES REFERRED Compensation Fund. I also joined my clear-armed cruise ‘‘missile that would The following bill was read the first colleagues in supporting the 1994 enact- make Americans less safe. and the second times by unanimous ment of the Violence Against Women I will miss David’s wisdom, humor, consent, and referred as indicated: Act. This landmark legislation en- and strategic insight, but I am com- H.R. 1343. An act to direct the Securities hanced penalties for sex offenders and forted to know that his legacy lives on and Exchange Commission to revise its rules made hundreds of millions of dollars in the robust and committed arms con- so as to increase the threshold amount for available for activities and programs trol community he helped lead. I will requiring issuers to provide certain disclo- to respond to the needs of domestic vi- continue to be inspired by David’s sures relating to compensatory benefit plans; olence survivors. memory, and I offer my deepest condo- to the Committee on Banking, Housing, and The Judiciary Committee, which I lences to his friends and his family. Urban Affairs. chair, has continued to make the pro- f f tection of victims’ rights a top pri- MEASURES READ THE FIRST TIME ority. Two years ago, we approved the ADDITIONAL STATEMENTS The following bills were read the first Justice for Victims of Trafficking Act, time: which makes new resources available to help survivors of human trafficking. TRIBUTE TO JAMES C. FOX H.R. 1301. An act making appropriations for the Department of Defense for the fiscal We also approved the Survivors’ Bill of ∑ Mr. BURR. Mr. President, I want to year ending September 30, 2017, and for other Rights, which establishes new rights honor the work of the Honorable James purposes. for survivors of federal crimes of sexual C. Fox, who retired last month after S. 861. A bill to provide for the compensa- violence. We cleared the Justice for All over 35 years of service on the Federal tion of Federal employees affected by lapses in appropriations. Reauthorization Act, which enhances bench. crime survivors’ ability to seek restitu- Judge Fox was born in Kansas but f tion and improves victims’ access to has spent most of his life in North EXECUTIVE AND OTHER legal services. And we approved the Carolina, graudating from the Univer- COMMUNICATIONS Emmett Till Unsolved Civil Rights sity of North Carolina with both his Crimes Reauthorization Act of 2016. The following communications were undergraduate and law degrees. Fol- laid before the Senate, together with Supporting and protecting victims of lowing law school, he clerked for the crime will again be an important pri- accompanying papers, reports, and doc- Honorable Don Gilliam in the U.S. Dis- uments, and were referred as indicated: ority this year in the Judiciary Com- trict Court for the Eastern District of mittee. Last week, I convened a hear- EC–1172. A communication from the Senior North Carolina. After time in private Official performing the duties of the Assist- ing to examine allegations that dozens practice and as the county attorney for of young athletes experienced sexual ant Secretary of the Army (Manpower and New Hanover County, Judge Fox was Reserve Affairs), transmitting, pursuant to abuse at the hands of coaches, instruc- nominated by President Reagan to law, a report on the mobilizations of selected tors, and others. serve where he had previously clerked: reserve units, received in the Office of the Senators FEINSTEIN, COLLINS, and I the U.S. District Court for the Eastern President of the Senate on April 4, 2017; to also recently introduced a bill, the Pro- District of North Carolina. the Committee on Armed Services. tecting Young Victims from Sexual EC–1173. A communication from the Acting Judge Fox served chief judge from Abuse Act, to ensure that sexual as- Secretary of the Army, transmitting, pursu- 1990–1997, and while he took senior sta- sault allegations by young athletes ant to law, a report entitled ‘‘Annual Report tus in 2001, he maintained a significant will be reported and investigated to Congress on the Activities of the Western caseload until his retirement last Hemisphere Institute for Security Coopera- promptly. This year, we also will make week. His dedication to the law is to be tion for 2016’’; to the Committee on Armed it a priority to extend and update pro- commended and is exceeded only by his Services. grams authorized under the Trafficking dedication to his family. I wish him all EC–1174. A communication from the Chief Victims Protection Act. Counsel, Federal Emergency Management the best in retirement as he spends In closing, crime victims and sur- Agency, Department of Homeland Security, vivors in the United States deserve our time with his wife, Kate, and his chil- transmitting, pursuant to law, the report of dren and grandchildren, and I am a rule entitled ‘‘Final Flood Elevation Deter- assistance in helping them cope with ∑ the often devastating consequences of grateful for his service. minations; St. Charles County, Missouri and Incorporated Areas’’ (Docket No. FEMA– f crime. That is why it is so important 2016–0002) received in the Office of the Presi- that we support the mission of Na- MESSAGE FROM THE HOUSE dent of the Senate on March 29, 2017; to the tional Crime Victims’ Rights Week. I Committee on Banking, Housing, and Urban urge my colleagues to join me in sup- At 10:28 a.m., a message from the Affairs. porting passage of this important reso- House of Representatives, delivered by EC–1175. A communication from the Chief lution. Mr. Novotny, one of its reading clerks, Counsel, Federal Emergency Management Agency, Department of Homeland Security, f announced that the House has passed the following bill, in which it requests transmitting, pursuant to law, the report of REMEMBERING DAVID CULP the concurrence of the Senate: a rule entitled ‘‘Final Flood Elevation Deter- minations; Washington County, Oregon and Mr. MARKEY. Mr. President, I was H.R. 1343. An act to direct the Securities Incorporated Areas’’ (Docket No. FEMA– deeply saddened to learn of the passing and Exchange Commission to revise its rules 2016–0002) received in the Office of the Presi- of my dear friend David Culp in early so as to increase the threshold amount for dent of the Senate on March 29, 2017; to the February. As one of the leaders of the requiring issuers to provide certain disclo- Committee on Banking, Housing, and Urban arms control community for decades, sures relating to compensatory benefit plans. Affairs. David was an indefatigable advocate The message further announced that EC–1176. A communication from the Dep- for reducing the threat of catastrophic the House agrees to the amendment of uty Assistant Secretary for Export Adminis- nuclear war and stopping the prolifera- the Senate to the bill (H.R. 353) to im- tration, Bureau of Industry and Security, Department of Commerce, transmitting, pur- tion of nuclear weapons. In particular, prove the National Oceanic and Atmos- suant to law, the report of a rule entitled David’s work was critical for Senate pheric Administration’s weather re- ‘‘Removal of Certain Persons from the Enti- ratification of the New START Treaty, search through a focused program of ty List; Addition of a Person to the Entity which established limits on the number investment on affordable and attain- List; and EAR Conforming Change’’ of deployed strategic nuclear weapons able advances in observational, com- (RIN0694–AH30) received in the Office of the in the United States and Russia. puting, and modeling capabilities to President of the Senate on March 30, 2017; to More recently, David worked closely support substantial improvement in the Committee on Banking, Housing, and with my staff on a number of arms con- weather forecasting and prediction of Urban Affairs. EC–1177. A communication from the Dep- trol initiatives, including my efforts to high impact weather events, to expand uty Assistant Secretary for Export Adminis- scale back the Pentagon’s trillion-dol- commercial opportunities for the pro- tration, Bureau of Industry and Security, lar nuclear spending spree, restrain ex- vision of weather data, and for other Department of Commerce, transmitting, pur- cessive and destabilizing missile de- purposes. suant to law, the report of a rule entitled

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00104 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.054 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2361 ‘‘Removal of Certain Persons from the Enti- Model; Delay of Effective Date’’ ((RIN0938– sumer Financial Protection Bureau, trans- ty List’’ (RIN0694–AH28) received in the Of- AS90) (CMS–5519–IFC)) received in the Office mitting, pursuant to law, the Bureau’s fiscal fice of the President of the Senate on March of the President of the Senate on April 4, year 2016 report relative to the Notification 30, 2017; to the Committee on Banking, Hous- 2017; to the Committee on Finance. and Federal Employee Antidiscrimination ing, and Urban Affairs. EC–1187. A communication from the Regu- and Retaliation Act of 2002 (No FEAR Act); EC–1178. A communication from the Assist- lations Coordinator, Centers for Medicare to the Committee on Homeland Security and ant Director for Legislative Affairs, Con- and Medicaid Services, Department of Governmental Affairs. sumer Financial Protection Bureau, trans- Health and Human Services, transmitting, EC–1197. A communication from the Equal mitting, pursuant to law, a report entitled pursuant to law, the report of a rule entitled Employment Opportunity and Inclusion Di- ‘‘Consumer Response Annual Report’’; to the ‘‘Medicaid Program; Disproportionate Share rector, Farm Credit System Insurance Cor- Committee on Banking, Housing, and Urban Hospital Payments—Treatment of Third poration, transmitting, pursuant to law, the Affairs. Party Payers in Calculating Uncompensated Farm Credit System Insurance Corporation’s EC–1179. A communication from the Sec- Care Costs’’ ((RIN0938–AS92) (CMS–2699–F)) fiscal year 2016 annual report relative to the retary, Securities and Exchange Commis- received in the Office of the President of the Notification and Federal Employee Anti- sion, transmitting, pursuant to law, the re- Senate on April 3, 2017; to the Committee on discrimination and Retaliation Act of 2002 port of a rule entitled ‘‘Inflation Adjust- Finance. (No FEAR Act); to the Committee on Home- ments and Other Technical Amendments EC–1188. A communication from the Assist- land Security and Governmental Affairs. Under Titles I and III of the JOBS Act’’ ant Legal Adviser for Treaty Affairs, Depart- EC–1198. A communication from the Acting Director of Equal Employment Opportunity, (RIN3235–AL38) received in the Office of the ment of State, transmitting, pursuant to the Securities and Exchange Commission, trans- President of the Senate on April 4, 2017; to Case-Zablocki Act, 1 U.S.C. 112b, as amended, mitting, pursuant to law, the Commission’s the Committee on Banking, Housing, and the report of the texts and background state- 2016 annual report relative to the Notifica- Urban Affairs. ments of international agreements, other tion and Federal Employee Antidiscrimina- EC–1180. A communication from the Execu- than treaties (List 2017–0050—2017–0068); to tion and Retaliation Act of 2002 (No FEAR tive Director, Comptroller of the Currency, the Committee on Foreign Relations. Act); to the Committee on Homeland Secu- Department of the Treasury, transmitting, EC–1189. A communication from the Board pursuant to law, the Office of the Comptrol- rity and Governmental Affairs. of Trustees, National Railroad Retirement EC–1199. A communication from the Acting ler’s 2016 Office of Minority and Women In- Investment Trust, transmitting, pursuant to Assistant Attorney General, Office of Legis- clusion Annual Report to Congress; to the law, the annual management report relative lative Affairs, Department of Justice, trans- Committee on Banking, Housing, and Urban to its operations and financial condition for mitting, pursuant to law, the Department’s Affairs. fiscal year 2016; to the Committee on Health, fiscal year 2016 annual report relative to the EC–1181. A communication from the Chief Education, Labor, and Pensions. Notification and Federal Employee Anti- Counsel, Federal Emergency Management EC–1190. A communication from the Sec- discrimination and Retaliation Act of 2002 Agency, Department of Homeland Security, retary of the Federal Trade Commission, (No FEAR Act); to the Committee on Home- transmitting, pursuant to law, the report of transmitting, pursuant to law, the Commis- land Security and Governmental Affairs. a rule entitled ‘‘Final Flood Elevation Deter- sion’s fiscal year 2016 annual report relative EC–1200. A communication from the Direc- minations; Otsego County, New York’’ to the Notification and Federal Employee tor, Equal Employment Opportunities and (Docket No. FEMA–2016–0002) received in the Antidiscrimination and Retaliation Act of Diversity Programs, National Archives and Office of the President of the Senate on 2002 (No FEAR Act); to the Committee on Records Administration, transmitting, pur- March 30, 2017; to the Committee on Bank- Homeland Security and Governmental Af- suant to law, the Administration’s fiscal ing, Housing, and Urban Affairs. fairs. year 2016 annual report relative to the Noti- EC–1182. A communication from the Chair- EC–1191. A communication from the Acting fication and Federal Employee Antidiscrimi- man, Federal Financial Institutions Exam- President and Chief Executive Officer, Over- nation and Retaliation Act of 2002 (No FEAR ination Council, transmitting, pursuant to seas Private Investment Corporation, trans- Act); to the Committee on Homeland Secu- law, the Council’s 2016 Annual Report to mitting, pursuant to law, the Corporation’s rity and Governmental Affairs. Congress; to the Committee on Banking, fiscal year 2016 annual report relative to the EC–1201. A communication from the Asso- Housing, and Urban Affairs. Notification and Federal Employee Anti- ciate General Counsel for General Law, De- EC–1183. A communication from the Acting discrimination and Retaliation Act of 2002 partment of Homeland Security, transmit- Deputy Assistant Administrator for Regu- (No FEAR Act); to the Committee on Home- ting, pursuant to law, two (2) reports relative latory Programs, Office of Sustainable Fish- land Security and Governmental Affairs. to vacancies in the Department of Homeland eries, Department of Commerce, transmit- EC–1192. A communication from the Diver- Security, received in the Office of the Presi- ting, pursuant to law, the report of a rule en- sity and Inclusion Programs Director, Board dent of the Senate on March 29, 2017; to the titled ‘‘Taking and Importing Marine Mam- of Governors of the Federal Reserve System, Select Committee on Intelligence. mals; Taking Marine Mammals Incidental to transmitting, pursuant to law, the Board’s EC–1202. A communication from the Sec- Rehabilitation of the Jetty System at the fiscal year 2016 annual report relative to the retary, Judicial Conference of the United Mouth of the Columbia River; Jetty A, North Notification and Federal Employee Anti- States, transmitting, a report relative to Jetty, and South Jetty, in Washington and discrimination and Retaliation Act of 2002 bankruptcy judgeship recommendations and Oregon’’ (RIN0648–BF95) received in the Of- (No FEAR Act); to the Committee on Home- corresponding draft legislation for the 115th fice of the President of the Senate on April land Security and Governmental Affairs. Congress; to the Committee on the Judici- 3, 2017; to the Committee on Commerce, EC–1193. A communication from the Staff ary. Science, and Transportation. Director, Federal Election Commission, f EC–1184. A communication from the Attor- transmitting, pursuant to law, the Commis- ney-Advisor, U.S. Coast Guard, Department sion’s fiscal year 2016 annual report relative PETITIONS AND MEMORIALS of Homeland Security, transmitting, pursu- to the Notification and Federal Employee The following petition or memorial ant to law, the report of a rule entitled Antidiscrimination and Retaliation Act of was laid before the Senate and was re- ‘‘Recreational Boat Flotation Standards— 2002 (No FEAR Act); to the Committee on ferred or ordered to lie on the table as Update of Outboard Engine Weight Test Re- Homeland Security and Governmental Af- quirements’’ ((RIN1625–AC37) (Docket No. fairs. indicated: USCG–2016–1012)) received in the Office of the EC–1194. A communication from the Equal POM–15. A joint resolution adopted by the President of the Senate on April 4, 2017; to Employment Opportunity Director, Farm Legislature of the State of Nevada relative the Committee on Commerce, Science, and Credit Administration, transmitting, pursu- to their ratification of the proposed amend- Transportation. ant to law, the Farm Credit Administra- ment to the Constitution of the United EC–1185. A communication from the Acting tion’s fiscal year 2016 annual report relative States providing that equality of rights Chairman, Federal Maritime Commission, to the Notification and Federal Employee under the law shall not be denied or abridged transmitting, pursuant to law, the 55th An- Antidiscrimination and Retaliation Act of by the United States or by any state on ac- nual Report of the activities of the Federal 2002 (No FEAR Act); to the Committee on count of sex; to the Committee on the Maritime Commission for fiscal year 2016; to Homeland Security and Governmental Af- Judiciary. the Committee on Commerce, Science, and fairs. SENATE JOINT RESOLUTION NO. 2 Transportation. EC–1195. A communication from the Gen- Whereas, Both houses of the 92nd Congress EC–1186. A communication from the Regu- eral Counsel, Administrative Conference of of the United States of America, by a con- lations Coordinator, Centers for Medicare the United States, transmitting, pursuant to stitutional majority of two-thirds, adopted and Medicaid Services, Department of law, the fiscal year 2016 annual report rel- the following resolution proposing to amend Health and Human Services, transmitting, ative to the Notification and Federal Em- the United States Constitution: pursuant to law, the report of a rule entitled ployee Antidiscrimination and Retaliation Resolved by the Senate and House of Rep- ‘‘Medicare Program; Advancing Care Coordi- Act of 2002 (No FEAR Act); to the Committee resentatives of the United States of America in nation Through Episode Payment Models on Homeland Security and Governmental Af- Congress Assembled (Two-Thirds of Each House (EPMs); Cardiac Rehabilitation Incentive fairs. Concurring Therein), That the following arti- Payment Model; and Changes to the Com- EC–1196. A communication from the Assist- cle is proposed as an amendment to the Con- prehensive Care for Joint Replacement ant Director for Legislative Affairs, Con- stitution of the United States, which shall be

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valid to all intents and purposes as part of United States of America is hereby ratified By Mr. MCCAIN (for himself, Mr. the Constitution when ratified by the legis- by the Legislature of the State of Nevada; TESTER, Ms. COLLINS, and Mr. CAR- latures of three-fourths of the several States and be it further PER): within seven years from the date of its sub- Resolved, That the Secretary of the Senate S. 829. A bill to reauthorize the Assistance mission by the Congress: shall prepare and transmit a copy of this res- to Firefighters Grants program, the Fire ARTICLE olution to the Vice President of the United Prevention and Safety Grants program, and States as the presiding officer of the United the Staffing for Adequate Fire and Emer- Section 1. Equality of rights under the law States Senate, the Speaker of the House of gency Response grant program, and for other shall not be denied or abridged by the United Representatives and each member of the Ne- purposes; to the Committee on Homeland Se- States or by any State on account of sex. curity and Governmental Affairs. Section 2. The Congress shall have the vada Congressional Delegation; and be it fur- By Mr. CASSIDY (for himself, Mr. CAR- power to enforce, by appropriate legislation, ther PER, Mr. GRASSLEY, Mr. COONS, Ms. the provisions of this article. Resolved, That this resolution becomes ef- MURKOWSKI, Mr. HEINRICH, and Mrs. Section 3. This amendment shall take ef- fective upon passage. f CAPITO): fect two years after the date of ratification; S. 830. A bill to amend title XVIII of the and REPORTS OF COMMITTEES Social Security Act to provide for the co- Whereas, The 95th Congress of the United ordination of programs to prevent and treat States amended the resolution of the 92nd The following reports of committees obesity, and for other purposes; to the Com- Congress to extend the time for ratification were submitted: mittee on Finance. to June 30, 1982, thereby indicating its con- By Mr. THUNE, from the Committee on By Mr. TOOMEY (for himself and Mr. tinued support of the amendment: and Commerce, Science, and Transportation, CASEY): Whereas, The Congress of the United with an amendment in the nature of a sub- S. 831. A bill to designate the facility of States adopted the 27th Amendment to the stitute: the United States Postal Service located at Constitution of the United States, which was S. 102. A bill to direct the Federal Commu- 120 West Pike Street in Canonsburg, Penn- proposed in 1789 by our First Congress but nications Commission to commence pro- sylvania, as the ‘‘Police Officer Scott not ratified by three-fourths of the States ceedings related to the resiliency of critical Bashioum Post Office Building’’; to the Com- until May 7, 1992, and, on May 18, 1992, cer- communications networks during times of mittee on Homeland Security and Govern- tified as the 27th Amendment; and emergency, and for other purposes (Rept. No. mental Affairs. Whereas, The restricting time limit for 115–24). By Mr. CARDIN (for himself, Mr. ISAK- ratification of the Equal Rights Amendment By Mr. HATCH, from the Committee on Fi- SON, and Mr. COONS): is in the resolving clause and is not part of nance: S. 832. A bill to enhance the transparency the amendment which was proposed by Con- Special Report entitled ‘‘Report on the Ac- and accelerate the impact of programs under gress and which has already been ratified by tivities of the Committee on Finance During the African Growth and Opportunity Act and 35 states; and the 114th Congress’’ (Rept. No. 115–25). the Millennium Challenge Corporation, and Whereas, Having passed a time extension for other purposes; to the Committee on For- f for the Equal Rights Amendment on October eign Relations. 20, 1978, Congress demonstrated that a time EXECUTIVE REPORTS OF By Mr. TESTER (for himself, Ms. MUR- limit in a resolving clause may be dis- COMMITTEES KOWSKI, Ms. HARRIS, Ms. KLOBUCHAR, regarded if it is not part of the proposed Mrs. MCCASKILL, Mrs. MURRAY, Mr. amendment; and The following executive reports of KING, and Mr. BLUMENTHAL): Whereas, The United States Supreme nominations were submitted: S. 833. A bill to amend title 38, United Court in Coleman v. Miller, 307 U.S. 433 (1939), By Mr. McCAIN for the Committee on States Code, to expand health care and bene- recognized that Congress is in a unique posi- Armed Services. fits from the Department of Veterans Affairs tion to judge the tenor of the nation, to be Heather Wilson, of South Dakota, to be for military sexual trauma, and for other aware of the political, social and economic Secretary of the Air Force. purposes; to the Committee on Veterans’ Af- factors affecting the nation and to be aware By Mr. THUNE for the Committee on Com- fairs. of the importance to the nation of the pro- merce, Science, and Transportation. By Mr. MARKEY (for himself, Mr. posed amendment; and *Jeffrey A. Rosen, of Virginia, to be Dep- SCHUMER, Mrs. GILLIBRAND, Mr. DUR- Whereas, If an amendment to the Constitu- uty Secretary of Transportation. BIN, Mr. WHITEHOUSE, Mr. REED, Mr. tion of the United States has been proposed *Nomination was reported with rec- BLUMENTHAL, Ms. WARREN, Ms. by two-thirds of both houses of Congress and DUCKWORTH, Mr. CASEY, Mrs. MUR- ratified by three-fourths of the state legisla- ommendation that it be confirmed sub- RAY, Mr. WYDEN, Mr. MURPHY, Mr. tures, it is for Congress, under the principles ject to the nominee’s commitment to KAINE, Mr. SANDERS, Mr. SCHATZ, Ms. of Coleman v. Miller, to determine the valid- respond to requests to appear and tes- HIRONO, Ms. BALDWIN, Mr. BROWN, ity of the state ratifications occurring after tify before any duly constituted com- Mr. CARPER, Mr. VAN HOLLEN, Mr. a time limit in the resolving clause, but not mittee of the Senate. CARDIN, Mr. COONS, Mr. BOOKER, Ms. in the amendment itself; and (Nominations without an asterisk HARRIS, Mr. MENENDEZ, and Mrs. Whereas, The Legislature of the State of were reported with the recommenda- FEINSTEIN): Nevada finds that the proposed amendment S. 834. A bill to authorize the appropriation is meaningful and needed as part of the Con- tion that they be confirmed.) of funds to the Centers for Disease Control stitution of the United States and that the f and Prevention for conducting or supporting present political, social and economic condi- INTRODUCTION OF BILLS AND research on firearms safety or gun violence tions demonstrate that constitutional equal- prevention; to the Committee on Health, ity for women and men continues to be a JOINT RESOLUTIONS Education, Labor, and Pensions. timely issue in the United States: Now, The following bills and joint resolu- By Mr. MURPHY (for himself, Mr. therefore, be it tions were introduced, read the first BLUMENTHAL, Mr. WHITEHOUSE, Mr. Resolved by the Senate and Assembly of the and second times by unanimous con- MARKEY, Ms. HIRONO, Mr. DURBIN, State of Nevada, Jointly, That the proposed and Mr. MERKLEY): amendment to the Constitution of the sent, and referred as indicated: S. 835. A bill to require the Supreme Court United States of America is hereby ratified By Mr. PAUL (for himself and Mr. of the United States to promulgate a code of by the Legislature of the State of Nevada; BOOKER): ethics; to the Committee on the Judiciary. and be it further S. 827. A bill to provide for the sealing or By Mr. WYDEN (for himself, Ms. MUR- Resolved, That the Secretary of the Senate expungement of records relating to Federal KOWSKI, Ms. WARREN, and Mr. MAR- shall prepare and transmit a copy of this res- nonviolent criminal offenses, and for other KEY): olution to the Secretary of State who shall purposes; to the Committee on the Judici- S. 836. A bill to amend the Federal Credit keep it as a true record of the official acts of ary. Union Act to exclude a loan secured by a the Legislative Department of the State By Mr. ROUNDS (for himself, Mr. WAR- non-owner occupied 1- to 4-family dwelling Government pursuant to Section 20 of Arti- NER, Mr. TESTER, Mr. SCOTT, Mr. from the definition of a member business cle 5 of the Nevada Constitution; and be it DONNELLY, Ms. HEITKAMP, Mr. COT- loan, and for other purposes; to the Com- further TON, Mr. TILLIS, Mr. VAN HOLLEN, Mr. mittee on Banking, Housing, and Urban Af- Resolved, That the Secretary of the Senate KENNEDY, and Mr. SCHUMER): fairs. shall prepare and transmit a certified copy of S. 828. A bill to amend the Federal Deposit By Mr. HATCH: this resolution, duly authenticated, to the Insurance Act to require the appropriate S. 837. A bill to provide for the conveyance Archivist of the United States at the Na- Federal banking agencies to treat certain of certain land to Washington County, Utah, tional Archives and Records Administration municipal obligations as level 2B liquid as- to authorize the exchange of Federal land pursuant to 1 U.S.C. §§ 106b and 112, which sets, and for other purposes; to the Com- and non-Federal in the State of Utah, and for shall serve as official notice that the pro- mittee on Banking, Housing, and Urban Af- other purposes; to the Committee on Energy posed amendment to the Constitution of the fairs. and Natural Resources.

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By Mr. COTTON (for himself, Mr. BOOZ- frage, and for other purposes; to the Com- By Mrs. SHAHEEN (for herself, Mr. MAN, and Mr. RUBIO): mittee on the Judiciary. FRANKEN, Ms. STABENOW, and Ms. S. 838. A bill to amend the Truth in Lend- By Ms. HASSAN: KLOBUCHAR): ing Act to include retrofit loans such as S. 848. A bill to amend the Higher Edu- S. 858. A bill to provide protection for sur- property assessed clean energy loans, and for cation Act of 1965 to encourage entrepreneur- vivors of domestic violence or sexual assault other purposes; to the Committee on Bank- ship by providing loan deferment and loan under the Fair Housing Act; to the Com- ing, Housing, and Urban Affairs. cancellation for founders and employees of mittee on Banking, Housing, and Urban Af- By Mr. WICKER (for himself, Mrs. CAP- small business startups, and for other pur- fairs. ITO, and Mr. INHOFE): poses; to the Committee on Health, Edu- By Mr. PETERS (for himself, Mr. S. 839. A bill to allow for judicial review of cation, Labor, and Pensions. PORTMAN, and Ms. STABENOW): any final rule addressing national emission By Mr. KING (for himself, Mr. BURR, S. 859. A bill to authorize the Director of standards for hazardous air pollutants for Mr. NELSON, and Mr. RUBIO): the United States Geological Survey to con- brick and structural clay products or for S. 849. A bill to support programs for mos- duct monitoring, assessment, science, and clay ceramics manufacturing before requir- quito-borne and other vector-borne disease research, in support of the binational fish- ing compliance with such rule; to the Com- surveillance and control; to the Committee eries within the Great Lakes Basin, and for mittee on Environment and Public Works. on Health, Education, Labor, and Pensions. other purposes; to the Committee on Envi- By Mr. PORTMAN (for himself and Mr. By Mr. DURBIN (for himself and Mr. ronment and Public Works. WARNER): CASSIDY): By Mr. GRASSLEY (for himself, Mr. S. 850. A bill to amend the Higher Edu- S. 840. A bill to amend the Higher Edu- WHITEHOUSE, Mr. TILLIS, Mrs. FEIN- cation Act of 1965 to establish fair and con- cation Act of 1965 to allow the Secretary of STEIN, Mr. HATCH, Mr. LEAHY, Mr. sistent eligibility requirements for graduate Education to award Early College Federal DURBIN, Mr. CORNYN, Mr. BLUNT, and Pell Grants; to the Committee on Health, medical schools operating outside the United States and Canada; to the Committee on Ms. KLOBUCHAR): Education, Labor, and Pensions. S. 860. A bill to reauthorize and improve By Mr. PORTMAN (for himself and Mr. Health, Education, Labor, and Pensions. By Mr. WHITEHOUSE: the Juvenile Justice and Delinquency Pre- BROWN): vention Act of 1974, and for other purposes; S. 841. A bill to designate the Veterans Me- S. 851. A bill to end offshore corporate tax avoidance, and for other purposes; to the to the Committee on the Judiciary. morial and Museum in Columbus, Ohio, as By Mr. CARDIN (for himself, Mr. VAN the National Veterans Memorial and Mu- Committee on Finance. By Mr. CARDIN (for himself and Mr. HOLLEN, Mr. LEAHY, Mr. seum, and for other purposes; to the Com- BLUMENTHAL, Mrs. GILLIBRAND, Mr. mittee on Energy and Natural Resources. PORTMAN): S. 852. A bill to amend the Internal Rev- SCHATZ, Mr. CARPER, Mr. WARNER, By Mr. BOOKER (for himself, Mr. enue Code of 1986 to protect older, longer Mr. MARKEY, Mr. SANDERS, Mr. JOHNSON, Ms. BALDWIN, Mrs. ERNST, service and grandfathered participants in de- UDALL, Ms. HIRONO, Mrs. SHAHEEN, Mr. BROWN, and Mr. PORTMAN): fined benefit plans; to the Committee on Fi- Ms. BALDWIN, Mr. KAINE, Mrs. MUR- S. 842. A bill to prohibit Federal agencies nance. RAY, and Mr. BROWN): and Federal contractors from requesting By Mr. CARDIN (for himself, Mr. S. 861. A bill to provide for the compensa- that an applicant for employment disclose PERDUE, Mrs. FEINSTEIN, Mr. RUBIO, tion of Federal employees affected by lapses criminal history record information before Mr. BLUMENTHAL, Ms. COLLINS, Mr. in appropriations; read the first time. the applicant has received a conditional MERKLEY, Mr. BOOKER, and Mr. offer, and for other purposes; to the Com- LEAHY): f mittee on Homeland Security and Govern- S. 853. A bill to identify and combat cor- mental Affairs. ruption in countries, to establish a tiered SUBMISSION OF CONCURRENT AND By Mr. BENNET (for himself and Mr. system of countries with respect to levels of SENATE RESOLUTIONS PORTMAN): corruption by their governments and their S. 843. A bill to amend the Internal Rev- efforts to combat such corruption, and to as- The following concurrent resolutions enue Code of 1986 to provide for the issuance sess United States assistance to designated and Senate resolutions were read, and of exempt facility bonds for qualified carbon countries in order to advance anti-corrup- referred (or acted upon), as indicated: dioxide capture facilities; to the Committee tion efforts in those countries and better By Mr. YOUNG (for himself and Mr. on Finance. serve United States taxpayers; to the Com- By Mr. WYDEN (for himself, Mr. BOOZ- CARDIN): mittee on Foreign Relations. S. Res. 114. A resolution expressing the MAN, and Mr. MARKEY): By Mr. CASEY (for himself, Mr. S. 844. A bill to amend title 38, United sense of the Senate on humanitarian crises MANCHIN, and Mr. BROWN): States Code, to consider certain time spent in Nigeria, Somalia, South Sudan, and S. 854. A bill to improve compliance with Yemen; to the Committee on Foreign Rela- by members of reserve components of the mine safety and health laws, empower min- tions. Armed Forces while receiving medical care ers to raise safety concerns, prevent future By Mr. MORAN (for himself and Mr. from the Secretary of Defense as active duty mine tragedies, and for other purposes; to ROBERTS): for purposes of eligibility for Post-9/11 Edu- the Committee on Health, Education, Labor, S. Res. 115. A resolution commemorating cational Assistance, and for other purposes; and Pensions. the 100th anniversary of the 1st Infrantry Di- to the Committee on Veterans’ Affairs. By Mr. CASEY (for himself, Mr. vision; to the Committee on Armed Services. By Mr. BLUMENTHAL (for himself, BROWN, Mr. MANCHIN, Mr. KAINE, and By Mr. CARDIN (for himself, Mr. Ms. HIRONO, Mr. FRANKEN, Mr. KAINE, Mr. WARNER): Mr. MERKLEY, Mrs. GILLIBRAND, Ms. S. 855. A bill to ensure that claims for ben- CORKER, Mr. DURBIN, Mr. RUBIO, Mr. HARRIS, Mr. MARKEY, Mr. BOOKER, efits under the Black Lung Benefits Act are KAINE, Mrs. SHAHEEN, Mr. UDALL, Mr. Ms. WARREN, and Mr. WYDEN): processed in a fair and timely manner, to COONS, and Mr. GARDNER): S. 845. A bill to protect sensitive commu- better protect miners from pneumoconiosis S. Res. 116. A resolution condemning the nity locations from harmful immigration en- (commonly known as ‘‘black lung disease’’), Assad regime for its continued use of chem- forcement action, and for other purposes; to and for other purposes; to the Committee on ical weapons against the Syrian people; to the Committee on the Judiciary. Health, Education, Labor, and Pensions. the Committee on Foreign Relations. By Mrs. SHAHEEN (for herself, Mr. By Mrs. MCCASKILL (for herself, Mr. By Mr. DAINES (for himself, Ms. WHITEHOUSE, Ms. HASSAN, Mr. KING, HELLER, Mr. BLUMENTHAL, Mr. HIRONO, Ms. MURKOWSKI, Ms. CANT- and Mr. CASEY): GRASSLEY, Mrs. GILLIBRAND, Mr. WELL, Mr. ALEXANDER, Mr. UDALL, S. 846. A bill to direct the Secretary of RUBIO, Mr. WARNER, Mrs. ERNST, Mr. Mr. INHOFE, Mr. HEINRICH, Mrs. CAP- Transportation to assist States to rehabili- REED, Ms. HASSAN, Mrs. CAPITO, and ITO, Mr. WYDEN, Mr. BLUNT, Mr. tate or replace certain bridges, and for other Mrs. SHAHEEN): FRANKEN, Mr. RUBIO, Ms. STABENOW, purposes; to the Committee on Environment S. 856. A bill to amend the Higher Edu- Mr. GARDNER, Mr. WARNER, Mr. CAS- and Public Works. cation Act of 1965 and the Jeanne Clery Dis- SIDY, Mr. NELSON, Mr. PORTMAN, Mrs. By Ms. BALDWIN (for herself, Ms. COL- closure of Campus Security Policy and Cam- FEINSTEIN, Mr. BARRASSO, Mrs. MUR- LINS, Ms. DUCKWORTH, Mrs. FEIN- pus Crime Statistics Act to combat campus RAY, Mr. ENZI, Mr. WHITEHOUSE, Ms. STEIN, Mrs. GILLIBRAND, Ms. HARRIS, sexual assault, and for other purposes; to the COLLINS, Mr. REED, Mr. COTTON, Mr. Ms. HASSAN, Ms. HEITKAMP, Ms. Committee on Health, Education, Labor, and TESTER, Mr. CORKER, Ms. BALDWIN, HIRONO, Mrs. MCCASKILL, Mrs. MUR- Pensions. Mr. SULLIVAN, Mr. PETERS, Mr. RAY, Mrs. SHAHEEN, Ms. WARREN, Ms. By Mr. BROWN (for himself and Mr. SCHATZ, Mr. KING, Mrs. SHAHEEN, and CANTWELL, Ms. STABENOW, and Ms. ALEXANDER): Mr. LEAHY): KLOBUCHAR): S. 857. A bill to amend title 54, United S. Res. 117. A resolution designating the S. 847. A bill to establish a commission to States Code, to establish within the National week of April 15, 2017, through April 23, 2017, ensure a suitable observance of the centen- Park Service the African American Civil as ‘‘National Park Week’’; considered and nial of the passage and ratification of the Rights Network, and for other purposes; to agreed to. 19th Amendment to the Constitution of the the Committee on Energy and Natural Re- By Ms. HARRIS (for herself, Mr. RUBIO, United States providing for women’s suf- sources. Mrs. FEINSTEIN, and Ms. COLLINS):

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A resolution condemning hate S. 493 (Ms. BALDWIN) was added as a cospon- crime and any other form of racism, reli- At the request of Mr. RUBIO, the sor of S. 630, a bill to amend the Af- gious or ethnic bias, discrimination, incite- name of the Senator from Utah (Mr. ghan Allies Protection Act of 2009 to ment to violence, or animus targeting a mi- LEE) was added as a cosponsor of S. 493, make 2,500 visas available for the Af- nority in the United States; considered and a bill to amend title 38, United States agreed to. ghan Special Immigrant Visa program, Code, to provide for the removal or de- and for other purposes. f motion of employees of the Depart- S. 697 ADDITIONAL COSPONSORS ment of Veterans Affairs based on per- At the request of Mr. DAINES, the formance or misconduct, and for other S. 175 name of the Senator from Maine (Ms. purposes. COLLINS) was added as a cosponsor of S. At the request of Mr. MANCHIN, the S. 497 name of the Senator from New Mexico 697, a bill to amend the Internal Rev- At the request of Ms. CANTWELL, the enue Code of 1986 to lower the mileage (Mr. UDALL) was added as a cosponsor name of the Senator from Arkansas of S. 175, a bill to amend the Surface threshold for deduction in determining (Mr. BOOZMAN) was added as a cospon- adjusted gross income of certain ex- Mining Control and Reclamation Act of sor of S. 497, a bill to amend title XVIII 1977 to transfer certain funds to the penses of members of reserve compo- of the Social Security Act to provide nents of the Armed Forces, and for Multiemployer Health Benefit Plan for Medicare coverage of certain and the 1974 United Mine Workers of other purposes. lymphedema compression treatment S. 717 America Pension Plan, and for other items as items of durable medical purposes. At the request of Mr. SULLIVAN, the equipment. name of the Senator from Indiana (Mr. S. 236 S. 568 DONNELLY) was added as a cosponsor of At the request of Mr. WYDEN, the At the request of Mr. BROWN, the S. 717, a bill to promote pro bono legal names of the Senator from Connecticut name of the Senator from Iowa (Mrs. services as a critical way in which to (Mr. MURPHY) and the Senator from ERNST) was added as a cosponsor of S. empower survivors of domestic vio- New Jersey (Mr. BOOKER) were added as 568, a bill to amend title XVIII of the lence. cosponsors of S. 236, a bill to amend the Social Security Act to count a period S. 722 Internal Revenue Code of 1986 to re- of receipt of outpatient observation At the request of Mr. CORKER, the form taxation of alcoholic beverages. services in a hospital toward satisfying names of the Senator from Utah (Mr. S. 372 the 3-day inpatient hospital require- HATCH) and the Senator from Nevada ment for coverage of skilled nursing fa- At the request of Mr. PORTMAN, the (Mr. HELLER) were added as cosponsors cility services under Medicare. name of the Senator from Indiana (Mr. of S. 722, a bill to impose sanctions S. 569 YOUNG) was added as a cosponsor of S. with respect to Iran in relation to At the request of Ms. CANTWELL, the 372, a bill to amend the Tariff Act of Iran’s ballistic missile program, sup- name of the Senator from Tennessee 1930 to ensure that merchandise arriv- port for acts of international ter- (Mr. ALEXANDER) was added as a co- ing through the mail shall be subject rorism, and violations of human rights, sponsor of S. 569, a bill to amend title to review by U.S. Customs and Border and for other purposes. Protection and to require the provision 54, United States Code, to provide con- S. 733 of advance electronic information on sistent and reliable authority for, and for the funding of, the Land and Water At the request of Ms. MURKOWSKI, the shipments of mail to U.S. Customs and names of the Senator from Montana Border Protection and for other pur- Conservation Fund to maximize the ef- (Mr. TESTER), the Senator from Mis- poses. fectiveness of the Fund for future gen- erations, and for other purposes. souri (Mrs. MCCASKILL), the Senator S. 382 from Virginia (Mr. KAINE) and the Sen- S. 577 At the request of Mr. MENENDEZ, the ator from Minnesota (Ms. KLOBUCHAR) At the request of Mr. LANKFORD, the names of the Senator from Virginia name of the Senator from Kansas (Mr. were added as cosponsors of S. 733, a (Mr. KAINE), the Senator from Rhode ROBERTS) was added as a cosponsor of bill to protect and enhance opportuni- Island (Mr. REED) and the Senator from S. 577, a bill to require each agency, in ties for recreational hunting, fishing, Illinois (Mr. DURBIN) were added as co- providing notice of a rule making, to and shooting, and for other purposes. sponsors of S. 382, a bill to require the include a link to a 100 word plain lan- S. 751 Secretary of Health and Human Serv- guage summary of the proposed rule. At the request of Mr. WARNER, the ices to develop a voluntary registry to S. 578 names of the Senator from Tennessee collect data on cancer incidence among At the request of Mr. LANKFORD, the (Mr. ALEXANDER) and the Senator from firefighters. name of the Senator from Kansas (Mr. California (Mrs. FEINSTEIN) were added S. 459 ROBERTS) was added as a cosponsor of as cosponsors of S. 751, a bill to amend At the request of Mr. RUBIO, the S. 578, a bill to amend title 5, United title 54, United States Code, to estab- name of the Senator from Illinois (Mr. States Code, to provide requirements lish, fund, and provide for the use of DURBIN) was added as a cosponsor of S. for agency decision making based on amounts in a National Park Service 459, a bill to designate the area be- science. Legacy Restoration Fund to address tween the intersections of Wisconsin S. 579 the maintenance backlog of the Na- Avenue, Northwest and Davis Street, At the request of Mr. LANKFORD, the tional Park Service, and for other pur- Northwest and Wisconsin Avenue, name of the Senator from Kansas (Mr. poses. Northwest and Edmunds Street, North- ROBERTS) was added as a cosponsor of S. 770 west in Washington, District of Colum- S. 579, a bill to require agencies to pub- At the request of Mr. SCHATZ, the bia, as ‘‘Boris Nemtsov Plaza’’, and for lish an advance notice of proposed rule name of the Senator from New Hamp- other purposes. making for major rules. shire (Ms. HASSAN) was added as a co- S. 479 S. 584 sponsor of S. 770, a bill to require the At the request of Mr. BROWN, the At the request of Mr. LANKFORD, the Director of the National Institute of names of the Senator from New Jersey name of the Senator from Kansas (Mr. Standards and Technology to dissemi- (Mr. BOOKER), the Senator from New ROBERTS) was added as a cosponsor of nate resources to help reduce small Jersey (Mr. MENENDEZ) and the Sen- S. 584, a bill to amend chapter 6 of title business cybersecurity risks, and for ator from Delaware (Mr. COONS) were 5, United States Code (commonly other purposes. added as cosponsors of S. 479, a bill to known as the Regulatory Flexibility S. 782 amend title XVIII of the Social Secu- Act), to ensure complete analysis of po- At the request of Mr. CORNYN, the rity Act to waive coinsurance under tential impacts on small entities of names of the Senator from Utah (Mr. Medicare for colorectal cancer screen- rules, and for other purposes. HATCH) and the Senator from Rhode Is- ing tests, regardless of whether thera- S. 630 land (Mr. WHITEHOUSE) were added as peutic intervention is required during At the request of Mrs. SHAHEEN, the cosponsors of S. 782, a bill to reauthor- the screening. name of the Senator from Wisconsin ize the National Internet Crimes

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00108 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.078 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2365 Against Children Task Force Program, the 11 African-American soldiers of the mated 1 in 10 DC residents has a crimi- and for other purposes. 333rd Field Artillery Battalion who nal record. S. 801 were massacred in Wereth, Belgium, The American Bar Association has At the request of Mr. Lee, the name during the Battle of the Bulge in De- identified over 44,500 ‘‘collateral con- of the Senator from New Mexico (Mr. cember 1944. sequences’’—or legal constraints— UDALL) was withdrawn as a cosponsor S. RES. 106 placed on what individuals with of S. 801, a bill to amend the Fair At the request of Mr. WICKER, the records can do once they are released Labor Standards Act of 1938 to provide name of the Senator from Wisconsin from prison. Of those, up to 70 percent compensatory time for employees in (Mr. JOHNSON) was added as a cosponsor are related to employment. the private sector. of S. Res. 106, a resolution expressing Today, a criminal conviction is a S. 816 the sense of the Senate to support the modern-day scarlet letter that, because At the request of Mr. CASEY, the territorial integrity of Georgia. of the so-called War on Drugs, has had name of the Senator from Ohio (Mr. S. RES. 108 a disproportionate impact on commu- BROWN) was added as a cosponsor of S. At the request of Mr. CARDIN, the nities of color. For example, African- 816, a bill to amend the Internal Rev- name of the Senator from Delaware American men with a conviction are 40 enue Code of 1986 to allow rollovers (Mr. COONS) was added as a cosponsor percent less likely to receive an inter- from 529 programs to ABLE accounts. of S. Res. 108, a resolution reaffirming view. And the likelihood that Latino S. 817 the commitment of the United States men with a record will receive an inter- At the request of Mr. CASEY, the to the United States-Egypt partner- view or be offered a job is 18 percent name of the Senator from Ohio (Mr. ship. smaller than the likelihood for white BROWN) was added as a cosponsor of S. S. RES. 109 men. 817, a bill to amend the Internal Rev- At the request of Mr. PAUL, the name To increase public safety, reduce re- enue Code of 1986 to increase the age of the Senator from Florida (Mr. cidivism, and protect the future of our requirement with respect to eligibility RUBIO) was added as a cosponsor of S. children, I am proud to re-introduce for qualified ABLE programs. Res. 109, a resolution encouraging the the REDEEM Act. This bill would incentivize states to raise the age of S. 818 Government of Pakistan to release original jurisdiction for criminal At the request of Mr. CASEY, the Aasiya Noreen, internationally known name of the Senator from Ohio (Mr. as Asia Bibi, and reform its religiously courts to 18 years old. Trying juveniles who have committed low-level, non- BROWN) was added as a cosponsor of S. intolerant laws regarding blasphemy. violent crimes as adults is counter- 818, a bill to amend the Internal Rev- f enue Code of 1986 to allow individuals productive. They do not emerge from STATEMENTS ON INTRODUCED prison reformed and ready to re- with disabilities to save additional BILLS AND JOINT RESOLUTIONS amounts in their ABLE accounts above integrate into school, nor will the the current annual maximum contribu- By Mr. PAUL (for himself and criminal record they have help them tion if they work and earn income. Mr. BOOKER): obtain a job. This change in law is important for S. 823 S. 827. A bill to provide for the seal- protecting our children’s futures. For At the request of Mr. WYDEN, the ing or expungement of records relating kids in the dozen states that treat 17- name of the Senator from Massachu- to Federal nonviolent criminal of- and even 16-year-olds as adults, no setts (Mr. MARKEY) was added as a co- fenses, and for other purposes; to the longer would getting into a school yard sponsor of S. 823, a bill to ensure the Committee on the Judiciary. scuffle result in an adult record that digital contents of electronic equip- Mr. BOOKER. Mr. President, I rise could follow an individual for the rest ment and online accounts belonging to today to introduce the Record of their life, restrict access to a college or in the possession of United States Expungement Designed to Enhance degree, limit job prospects, or lead to persons entering or exiting the United Employment Act, or REDEEM Act. likely recidivism. States are adequately protected at the This bill would take meaningful steps The bill would enhance Federal juve- border, and for other purposes. towards allowing returning citizens to obtain employment. As President nile record confidentiality and provide S.J. RES. 5 George W. Bush said in his 2004 State of for automatic expungement of records At the request of Mr. CARDIN, the the Union Address, ‘‘America is the for kids who commit nonviolent crimes name of the Senator from Illinois (Ms. land of the second chance, and when before they turn 15 and automatic seal- DUCKWORTH) was added as a cosponsor the gates of the prison open, the path ing of records for those who commit of S.J. Res. 5, a joint resolution remov- ahead should lead to a better life.’’ The nonviolent crimes after they turn 15. ing the deadline for the ratification of REDEEM Act would help provide peo- The bill would ban the very cruel and the equal rights amendment. ple with that second chance after their counterproductive practice of juvenile S.J. RES. 6 incarceration. I thank Senator PAUL solitary confinement that can have im- At the request of Mr. MENENDEZ, the for his tireless work with me on the mediate and long-term detrimental ef- name of the Senator from Connecticut REDEEM Act. fects on a youth’s mental and physical (Mr. BLUMENTHAL) was added as a co- In the last 30 years, the number of in- health. In fact, the majority of suicides sponsor of S.J. Res. 6, a joint resolu- carcerated people in the United States by juveniles in prisons occur when tion proposing an amendment to the has drastically increased. Since 1980, young people are placed in solitary Constitution of the United States rel- the federal prison population alone has confinement. Other nations even con- ative to equal rights for men and grown by nearly 800 percent and Amer- sider it torture. women. ican taxpayers are left paying for the The REDEEM Act would, for adults, S.J. RES. 28 bill. In fiscal year 2014, the Bureau of offer the first broad-based federal path At the request of Mr. INHOFE, the Prisons accounted for a quarter of the to the sealing of criminal records. A name of the Senator from Texas (Mr. Department of Justice’s budget at $6.9 person who commits a nonviolent CRUZ) was added as a cosponsor of S.J. billion. Our bloated criminal justice crime will be able to petition a court Res. 28, a joint resolution providing for system wastes priceless human poten- for sealing of the record, so their fu- congressional disapproval under chap- tial and fails to make our communities ture job prospects are not harmed. ter 8 of title 5, United States Code, of safer. It also fails to adequately pre- And the bill would enhance the accu- the rule submitted by the Adminis- pare the over 600,000 people each year racy of criminal justice records. Em- trator of the Environmental Protection who are released from prison for their ployers requesting a background check Agency relating to accidental release return to the community. from the FBI will be provided with prevention requirements of risk man- A high number of Americans living in only relevant and accurate information agement programs under the Clean Air our communities have criminal convic- thanks to a provision that will protect Act. tions. About 70 million people in the job applicants by improving the qual- S. RES. 99 United States have been arrested or ity of the Bureau’s background check. At the request of Mr. MANCHIN, the convicted of a crime. That means al- Think about this: 17 million back- name of the Senator from Mississippi most one in three adults in the United ground checks were done by the FBI in (Mr. WICKER) was added as a cosponsor States has a criminal record. In fact, in 2013, many of them for private pro- of S. Res. 99, a resolution recognizing our Nation’s Capital alone, an esti- viders, and upward of half of them were

VerDate Sep 11 2014 05:43 Aug 12, 2017 Jkt 079060 PO 00000 Frm 00109 Fmt 0624 Sfmt 0634 E:\RECORD17\APRIL\S04AP7.PT2 S04AP7 S2366 CONGRESSIONAL RECORD — SENATE April 5, 2017 inaccurate or incomplete, often caus- dential Loan Parity Act with Senator mittee on Homeland Security and Gov- ing people to lose a job, miss an eco- MURKOWSKI. This bill would increase ernmental Affairs. nomic opportunity, and be trapped access to capital by exempting certain Mr. BOOKER. Mr. President, I rise with few economic options other than loans from the member business lend- today to introduce the Fair Chance to to reoffend in order to feed a child or ing cap imposed on credit unions. Cur- Compete for Jobs Act of 2017, also pay a debt. rently, loans made for one- to four- known as the Fair Chance Act. This The bill helps guard against gender person, non-owner-occupied housing criminal justice reform bill is designed disparities in federal juvenile delin- are treated as business loans when they to help returning citizens successfully quency proceedings. Additionally, it are made by credit unions. As such, obtain jobs and reintegrate into soci- would ensure that programming and these types of loans count against a ety. As the nation’s largest employer, services are distributed evenly among credit union’s business lending cap, ef- it is time the Federal Government male and female juveniles. Oftentimes, fectively limiting a credit union’s abil- leads by example and delays the crimi- juvenile females receive less program- ity to provide loans to small busi- nal history inquiry until later in the ming and resources than males because nesses. Our legislation would address hiring process. I thank Senator JOHN- of the smaller size of the female prison this issue by allowing credit unions to SON for his leadership on the Fair population. This is wrong and this bill treat these types of loans as residential Chance Act, and I deeply appreciate take a step forward to fix the problem. loans—the same treatment these kinds Senators BALDWIN, ERNST, BROWN, and Finally, the REDEEM Act would lift of loans receive when made by other fi- PORTMAN for joining the bill as original a ban on two critical Federal benefits: nancial institutions. In effect, the bill cosponsors. the Supplemental Nutritional Assist- would exempt residential loans from Everyone deserves the dignity of ance Program and Temporary Assist- the business lending cap. This exemp- work and the opportunity for a second ance for Needy Families. The intent of tion would increase access to capital chance to earn a living. But far too those Federal programs is to keep low- for small businesses, which in turn many Americans who return home income families from going hungry. would create jobs and grow our local from behind bars have to disclose con- Yet those convicted of drug felonies economies. In addition to generally in- victions on their initial employment lose the right to obtain such benefits. creasing credit union lending, our leg- application or initial job interview Once an individual has paid his or her islation would directly free up capital that often serve as insurmountable debt to society, a path to the reinstate- for small businesses that make much barriers to employment. This legisla- ment of those benefits should be avail- needed investments in rental housing. tion would ensure that people with able. I am hopeful that this legislation will convictions—who have paid their debt I am proud to introduce the RE- be received by colleagues for what it to society and want to turn their lives DEEM Act today. Again, I thank Sen- is—a simple step to help ensure Amer- around—have a fair chance to work. ator PAUL for partnering with me on ica’s small businesses have access to By encouraging Federal employers to this bill. I urge this bill’s speedy pas- the fuel they need to power our econ- focus on an individual’s qualifications sage. omy. and merit and not solely on past mis- It is my hope that the Senate will takes, the Fair Chance Act would re- By Mr. WYDEN (for himself, Ms. pass this legislation swiftly. move burdensome and unnecessary ob- MURKOWSKI, Ms. WARREN, and Mr. President, I ask unanimous con- stacles that prevent formerly incarcer- Mr. MARKEY): sent that the text of the bill be printed ated people from reaching their full po- S. 836. A bill to amend the Federal in the RECORD. tential and contributing to society. It Credit Union Act to exclude a loan se- There being no objection, the text of would also help reduce recidivism, cured by a non-owner occupied 1- to 4- the bill was ordered to be printed in combat poverty, and prevent violence family dwelling from the definition of the RECORD, as follows: in our communities by helping people a member business loan, and for other S. 836 get back to work. purposes; to the Committee on Bank- Be it enacted by the Senate and House of Rep- Creating employment opportunities ing, Housing, and Urban Affairs. resentatives of the United States of America in for our returning citizens benefits pub- Mr. WYDEN. Mr. President, most of Congress assembled, lic safety. With little hope of obtaining us have heard the metaphor that small SECTION 1. SHORT TITLE. a decent paying job, returning citizens businesses are the engines that power This Act may be cited as the ‘‘Credit Union are often left with few options but to our economy. What we don’t hear peo- Residential Loan Parity Act’’. return to a life of crime. A 2011 study ple talk about as much is the fuel that SEC. 2. TREATMENT OF A NON-OWNER OCCUPIED in the Justice Quarterly concluded feeds the engines: capital. Without cap- 1- TO 4-FAMILY DWELLING. that the lack of employment was the ital, entrepreneurs cannot see their (a) REMOVAL FROM MEMBER BUSINESS LOAN single most negative determinant of ideas to fruition, successful business LIMITATION.—Section 107A(c)(1)(B)(i) of the recidivism. A report by the Bureau of owners cannot expand to meet the Federal Credit Union Act (12 U.S.C. Justice Statistics found that of the 1757a(c)(1)(B)(i)) is amended by striking needs of the market, and eager job ‘‘that is the primary residence of a member’’. over 400,000 State prisoners released in seekers must take their skills else- (b) RULE OF CONSTRUCTION.—Nothing in 2005, 67.8 percent of them were re- where. Without capital, Main Street this Act or the amendment made by this Act arrested within 3 years of their release, falters, and Wall Street keeps the ad- shall preclude the National Credit Union Ad- and 76.6 percent were rearrested within vantage. ministration from treating an extension of 5 years of their release. Today, more than 9 years after the credit that is fully secured by a lien on a 1- Creating employment opportunities start of the great recession and many to 4-family dwelling that is not the primary for our returning citizens strengthens policy reforms later, access to capital residence of a member as a member business our economy. Poor job prospects for loan for purposes other than the member remains a challenge. This capital business loan limitation requirements under people with records reduced our Na- drought hampers small business section 107A of the Federal Credit Union Act tion’s gross domestic product in 2008 growth, economic development, and job (12 U.S.C. 1757a). between $57 billion and $65 billion. creation in Oregon and across the With an increasingly competitive glob- country. Despite this, government reg- By Mr. BOOKER (for himself, Mr. al economy and to maintain America’s ulation continues to tie the hands of JOHNSON, Ms. BALDWIN, Mrs. competitive advantage, we must pro- many willing small businesses lend- ERNST, Mr. BROWN, and Mr. mote employment of all Americans. ers—namely, credit unions. According PORTMAN): Today, I introduce the Fair Chance to some estimates, credit unions could S. 842. A bill to prohibit Federal Act, which would help eliminate bar- lend an additional $11 billion to small agencies and Federal contractors from riers to employment for formerly in- businesses if Congress loosened re- requesting that an applicant for em- carcerated people and bring America straints on credit union business lend- ployment disclose criminal history closer to truly being a land of oppor- ing. record information before the appli- tunity for all. It would preclude the With this in mind, I am pleased to in- cant has received a conditional offer, federal government—including the ex- troduce today the Credit Union Resi- and for other purposes; to the Com- ecutive, legislative, and judicial

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00110 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.073 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2367 branches—from requesting criminal businesses. A New York Times report The ROI Act would work to drive our history information from applicants highlighted that the percentage of new 21st century economy, but we know until they reach the conditional offer entrepreneurs between 20–34 years old that we have more work to do to bring stage. fell to 25 percent in 2014, down from al- down the costs of higher education and This bill strikes the right balance. It most 35 percent in 1996. And Gallup ensure that New Hampshire students, would allow qualified people with found that 19 percent of graduates with families, and innovative businesses criminal records to get their foot in student loan debt say they have de- have the support they need. In addition the door and be judged on their own layed starting a business because of it. to working to pass this commonsense merit. At the same time, the legisla- It is time to once again unleash the legislation, I will continue to focus on tion would allow employers to know an entrepreneurial potential of our young expanding Pell grants, lowering inter- individual’s criminal history before the people into creating the jobs of the fu- est rates for student loans and allowing job applicant is hired. ture. That is why this week I intro- students to refinance, and increasing This bill would prohibit federal con- duced the Reigniting Opportunity for apprenticeship and job training oppor- tractors from requesting criminal his- Innovators, ROI, Act, the first bill I am tunities. tory information from candidates for writing as a U.S. Senator, which would The ROI Act is an important step positions within the scope of Federal help provide the relief necessary for that we can take now to help young en- contracts until a conditional job offer young entrepreneurs to start up and trepreneurs and lay the foundation for has been extended. Companies that do grow innovative small businesses. a new generation of economic growth, business with the Federal Government The ROI Act will allow eligible and I look forward to working with and receive Federal funds should founders and full-time employees of members of both parties to pass this espouse good hiring practices. The Fair certified small business to defer their commonsense bill. Chance Act would permit Federal con- Federal student loan payments and in- tractors to inquire about criminal his- terest accrual for up to 3 years while By Mr. DURBIN (for himself and tory earlier in the hiring process if the launching a startup. This will help give Mr. CASSIDY): job requires a candidate to access clas- graduates the financial stability they S. 850. A bill to amend the Higher sified information. need to take the risk of starting a busi- Education Act of 1965 to establish fair The bill includes exceptions for sen- ness that can create good-paying jobs. and consistent eligibility requirements sitive positions where criminal history Additionally, this legislation pro- for graduate medical schools operating vides an additional incentive for start- inquiries are necessary earlier in the outside the United States and Canada; up companies to move off the beaten application process. Exceptions include to the Committee on Health, Edu- path to help revitalize struggling com- positions involving classified informa- cation, Labor, and Pensions. munities. If the startup is located in an tion, sensitive national security duties, Mr. DURBIN. Mr. President, I ask economically distressed area, founders armed forces, and law enforcement unanimous consent that the text of the and employees will be eligible for can- jobs, and jobs where criminal history bill be printed in the RECORD. cellation of up to $20,000 in student information is legally required. There being no objection, the text of loans. Finally, the Fair Chance Act would the bill was ordered to be printed in The ROI Act is an important step the RECORD, as follows: require the Bureau of Justice Statis- that we can take now to help young en- S. 850 tics, in coordination with the U.S. Cen- trepreneurs and lay the foundation for sus Bureau, to report to Congress on a new generation of economic growth. Be it enacted by the Senate and House of Rep- the employment statistics of returning New businesses are historically the resentatives of the United States of America in Congress assembled, citizens. Currently, no comprehensive top job creators in our country, and tracking of data on the employment SECTION 1. SHORT TITLE. small businesses are the driving force This Act may be cited as the ‘‘Foreign histories of people with convictions ex- of New Hampshire’s economy. But to ists. This provision would change that Medical School Accountability Fairness Act get the education they need to compete of 2017’’. and allow us to better understand the for jobs in the 21st century economy, SEC. 2. PURPOSE. scope of the problem people with con- students are taking on more debt than To establish consistent eligibility require- victions face when trying to find a job. ever before. In 2015, college graduates ments for graduate medical schools oper- I am proud to reintroduce the Fair left school with an average of $30,000 of ating outside of the United States and Can- Chance Act. I want to again thank the student loan debt, and New Hampshire ada in order to increase accountability and bill cosponsors and their leadership on students had the highest average stu- protect American students and taxpayer dol- this issue. I urge this legislation’s dent debt in the country. lars. speedy passage. At a roundtable discussion at Keene SEC. 3. FINDINGS. State College, I heard from students Congress finds the following: By Ms. HASSAN: (1) Three for-profit schools in the Carib- about the challenges posed by their 3 S. 848. A bill to amend the Higher student loan debt. One young woman bean receive nearly ⁄4 of all Federal funding under title IV of the Higher Education Act of Education Act of 1965 to encourage en- told me that she hoped to start her own trepreneurship by providing loan 1965 (20 U.S.C. 1070 et seq.) that goes to stu- business but that she would likely have dents enrolled at foreign graduate medical deferment and loan cancellation for to put off that goal for another 10 years schools, despite those three schools being ex- founders and employees of small busi- because of her student loan debt. empt from meeting the same eligibility re- ness startups, and for other purposes; Any entrepreneur will tell you that quirements as the majority of graduate med- to the Committee on Health, Edu- getting a small business off the ground ical schools located outside of the United cation, Labor, and Pensions. is expensive. These costs, mixed with States and Canada. Ms. HASSAN. Mr. President, I rise student loan debt, make it even more (2) The National Committee on Foreign today to introduce my first bill in the daunting for young entrepreneurs to Medical Education and Accreditation and U.S. Senate—a bill to help relieve the the Department of Education recommend consider taking the leap of starting a that all foreign graduate medical schools burden of student debt for young entre- new business. Student debt decreases should be required to meet the same eligi- preneurs from New Hampshire and the the cash flow of potential entre- bility requirements to participate in Federal entire country. preneurs, it hurts their ability to build funding under title IV of the Higher Edu- Most of us have seen personally how equity, and it can negatively affect cation Act of 1965 (20 U.S.C. 1070 et seq.). heavily the burden of student loan debt credit scores and their ability to secure (3) The attrition rate at United States weighs on students and families across financing. medical schools averaged 3.4 percent in 2014, New Hampshire. Less visible, but no With the deck too often stacked while rates at for-profit Caribbean medical less important, is how student loan against them, we need to be doing ev- schools have been known to reach 30 percent. debt is weighing down our economy— erything we can to support young en- (4) In 2016, residency match rates for for- eign trained graduates averaged 54 percent stifling innovation and job creation. trepreneurs looking to start the inno- compared to 94 percent for graduates of med- Student loan debt is preventing the vative businesses that will drive job- ical schools in the United States. next generation of entrepreneurs and creation and move our economy for- (5) On average, students at for-profit med- innovators from opening their own ward. ical schools operating outside of the United

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00111 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.079 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2368 CONGRESSIONAL RECORD — SENATE April 5, 2017 States and Canada amass more student debt SEC. 2. COMPENSATION FOR FEDERAL EMPLOY- tounding 60% of the country’s population— than those at medical schools in the United EES AFFECTED BY A LAPSE IN AP- are food insecure, including seven million States. PROPRIATIONS. people who are unable to survive without Section 1341 of title 31, United States Code, food assistance.’’; SEC. 4. REPEAL GRANDFATHER PROVISIONS. is amended— Whereas, according to the United Nations Section 102(a)(2) of the Higher Education (1) in subsection (a)(1), by striking ‘‘An of- Children’s Fund (UNICEF), ‘‘Some 22 million Act of 1965 (20 U.S.C. 1002(a)(2)) is amended— ficer’’ and inserting ‘‘Except as specified in children have been left hungry, sick, dis- (1) in subparagraph (A), by striking clause this subchapter or any other provision of placed and out of school in the four coun- (i) and inserting the following: law, an officer’’; and tries. Nearly 1.4 million are at imminent risk ‘‘(i) in the case of a graduate medical (2) by adding at the end the following: of death this year from severe malnutri- school located outside the United States— ‘‘(c)(1) In this subsection— tion.’’; ‘‘(I) at least 60 percent of those enrolled in, ‘‘(A) the term ‘covered lapse in appropria- Whereas the humanitarian crises in each of and at least 60 percent of the graduates of, tions’ means any lapse in appropriations these regions are, to varying degrees, man- the graduate medical school outside the that begins on or after April 28, 2017; and made and preventable—exacerbated by United States were not persons described in ‘‘(B) the term ‘excepted employee’ means armed conflict, disregard for international section 484(a)(5) in the year preceding the an excepted employee or an employee per- humanitarian law, and deliberate restric- year for which a student is seeking a loan forming emergency work, as such terms are tions on humanitarian access; under part D of title IV; and defined by the Office of Personnel Manage- Whereas parties to the conflicts have har- ‘‘(II) at least 75 percent of the individuals ment. assed, attacked, and killed humanitarian who were students or graduates of the grad- ‘‘(2) Each Federal employee furloughed as workers, blocking and hindering humani- uate medical school outside the United a result of a covered lapse in appropriations tarian access and depriving the world’s most shall be paid for the period of the lapse in ap- States or Canada (both nationals of the hungry people of the food they need; propriations, and each excepted employee United States and others) taking the exami- Whereas humanitarian actors, coordinated who is required to perform work during a nations administered by the Educational by UNOCHA, are appealing for $5,600,000,000 covered lapse in appropriations shall be paid Commission for Foreign Medical Graduates in 2017 to address famines in Yemen, South for such work, at the employee’s standard Sudan, Nigeria, and Somalia, $4,400,000,000 of received a passing score in the year pre- rate of pay, at the earliest date possible after which is required urgently; and ceding the year for which a student is seek- the lapse in appropriations ends, regardless Whereas Mr. Daccord testified on March 22, ing a loan under part D of title IV;’’; and of scheduled pay dates. (2) in subparagraph (B)(iii), by adding at ‘‘(3) During a covered lapse in appropria- 2017, ‘‘Our message is clear: immediate, deci- the end the following: tions, each excepted employee who is re- sive action is needed to prevent vast num- ‘‘(V) EXPIRATION OF AUTHORITY.—The au- quired to perform work shall be entitled to bers of people starving to death.’’: Now, thority of a graduate medical school de- use leave under chapter 63 of title 5, or any therefore, be it scribed in subclause (I) to qualify for partici- other applicable law governing the use of Resolved, That— pation in the loan programs under part D of leave by the excepted employee, for which (1) It is the sense of the Senate that— title IV pursuant to this clause shall expire compensation shall be paid at the earliest (A) United States national security inter- beginning on the first July 1 following the date possible after the lapse in appropria- ests and the values of the American people date of enactment of the Foreign Medical tions ends, regardless of scheduled pay demand that the United States lead an ur- School Accountability Fairness Act of 2017.’’. dates.’’. gent and comprehensive international diplo- matic effort to address obstacles in Nigeria, SEC. 5. LOSS OF ELIGIBILITY. f Somalia, South Sudan, and Yemen that are If a graduate medical school loses eligi- SUBMITTED RESOLUTIONS preventing humanitarian aid from being de- bility to participate in the loan programs livered to millions of people who desperately under part D of title IV of the Higher Edu- need it; cation Act of 1965 (20 U.S.C. 1087a et seq.) due SENATE RESOLUTION 114—EX- (B) the President should encourage other to the enactment of the amendments made PRESSING THE SENSE OF THE governments to join the United States in by section 4, then a student enrolled at such providing the resources necessary to meet SENATE ON HUMANITARIAN CRI- the $5,600,000,000 UNOCHA appeal to address graduate medical school on or before the SES IN NIGERIA, SOMALIA, date of enactment of this Act may, notwith- the humanitarian crises in Nigeria, Somalia, standing such loss of eligibility, continue to SOUTH SUDAN, AND YEMEN South Sudan, and Yemen; be eligible to receive a loan under such part Mr. YOUNG (for himself and Mr. (C) parties to the conflicts in Nigeria, So- D while attending such graduate medical CARDIN) submitted the following reso- malia, South Sudan, and Yemen must re- school in which the student was enrolled lution; which was referred to the Com- spect fully international humanitarian law by allowing and facilitating rapid and upon the date of enactment of this Act, sub- mittee on Foreign Relations: ject to the student continuing to meet all unimpeded passage of humanitarian relief S. RES. 114 applicable requirements for satisfactory aca- for civilians in need and respecting and pro- demic progress, until the earliest of— Whereas Nigeria, Somalia, South Sudan, tecting humanitarian and medical relief per- (1) withdrawal by the student from the and Yemen are all in famine, pre-famine, or sonnel and objects; and graduate medical school; ‘‘at risk of famine’’ stages in 2017; (D) the President, working with inter- (2) completion of the program of study by Whereas, according to the United Nations national partners, should work to identify the student at the graduate medical school; Office for the Coordination of Humanitarian and document violations of international hu- or Affairs (UNOCHA), 20,000,000 people are at manitarian law in Nigeria, Somalia, South (3) the fourth June 30 after such loss of eli- risk of starvation within the next six months Sudan, and Yemen seeking to bring perpetra- gibility. in Nigeria, Somalia, South Sudan, and tors to justice where possible; and Yemen; (2) the Senate— Whereas, on March 22, 2017, Mr. Yves (A) urges the President, in close coordina- By Mr. CARDIN (for himself, Mr. Daccord, the Director-General of the Inter- tion with international partners, to employ VAN HOLLEN, Mr. LEAHY, Mr. national Committee of the Red Cross, testi- every appropriate strategy to persuade the BLUMENTHAL, Mrs. GILLIBRAND, fied that the crisis represents ‘‘one of the Government of South Sudan to stop blocking Mr. SCHATZ, Mr. CARPER, Mr. most critical humanitarian issues to face aid for people who desperately need it; WARNER, Mr. MARKEY, Mr. mankind since the end of the Second World (B) calls on the President to notify Con- SANDERS, Mr. UDALL, Ms. War’’ and warned that ‘‘we are at the brink gress without delay if the Government of HIRONO, Mrs. SHAHEEN, Ms. of a humanitarian mega-crisis unprecedented South Sudan does not immediately and fully in recent history’’; respect international humanitarian law so BALDWIN, Mr. KAINE, Mrs. MUR- Whereas, according to the United States that Congress can work with President to RAY, and Mr. BROWN): Agency for International Development impose additional costs on the government S. 861. A bill to provide for the com- (USAID), ‘‘More than 5.1 million people face and leaders of South Sudan for their deplor- pensation of Federal employees af- severe food insecurity in northeastern Nige- able actions; fected by lapses in appropriations; read ria’’; (C) urges the President to press the Gov- the first time. Whereas, according to USAID, ‘‘An esti- ernment of Nigeria to take tangible and im- mated 6.2 million people—more than half of mediate steps to ensure accountability for S. 861 Somalia’s total population—currently re- security forces that violate human rights Be it enacted by the Senate and House of Rep- quire urgent humanitarian assistance.’’; and fail to cooperate fully with international resentatives of the United States of America in Whereas, according to USAID, ‘‘An esti- aid efforts; Congress assembled, mated 5.5 million people—nearly half of (D) calls on the President to send the Sec- South Sudan’s population—will face life retary of State or other high level represent- SECTION 1. SHORT TITLE. threatening hunger by July.’’; ative to attend the upcoming United King- This Act may be cited as the ‘‘Federal Em- Whereas, according to USAID, in Yemen, dom’s Ministerial Conference on Somalia ployee Fair Treatment Act of 2017’’. ‘‘More than seventeen million people—an as- and publicly announce a contribution to the

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00112 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.081 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2369 humanitarian assistance efforts which will made the assault landing on Omaha Beach lican Guard of Saddam Hussein, among many help leverage other international donors; and on D-Day, June 6, 1944, which began the lib- other enemy forces; (E) urges the President to work urgently eration of Europe from Nazi control; Whereas the 1st Infantry Division deployed with stakeholders to persuade parties to con- Whereas the 1st Infantry Division contin- to Bosnia for 31 months between 1996 and flict in Yemen to permit humanitarian ued its invaluable service throughout World 2000, to Macedonia for 4 months in 1999, and groups increased access to Red Sea ports like War II, including in— to Kosovo for 22 months between 1999 and Hodeida to deliver much-needed assistance (1) the liberation of France and Belgium; 2003— to vulnerable communities. (2) the seizing of Aachen, the first city of (1) to enforce international peace agree- ments; f Nazi Germany to fall to the Allies; (3) the Battle of the Huertgen Forest; (2) to halt the worst ethnic violence in Eu- SENATE RESOLUTION 115—COM- (4) the Battle of the Bulge, in which the 1st rope since the Holocaust; and MEMORATING THE 100TH ANNI- Infantry Division held the critical northern (3) to bring peace and stability to the Bal- VERSARY OF THE 1ST INFANTRY shoulder at Butgenbach, Belgium; kans; Whereas, in 2004, the 1st Infantry Division DIVISION (5) the crossing of the Rhine River at Re- magen; deployed to Iraq in Operation Iraqi Freedom Mr. MORAN (for himself and Mr. (6) the battles around the Ruhr Pocket in as Task Force Danger and conducted sophis- ROBERTS) submitted the following reso- Germany; and ticated counterinsurgency operations that lution; which was referred to the Com- (7) the offensive into Czechoslovakia, led to the first free and fair elections in Iraqi mittee on Armed Services: where the 1st Infantry Division liberated history in 2005; Nazi labor camps at Falkenau and Zwodau; Whereas, between 2005 and 2014, the brigade S. RES. 115 Whereas 17 members of the 1st Infantry Di- combat teams and other major headquarters Whereas June 8, 2017, is the 100th anniver- vision received the Congressional Medal of and units of the 1st Infantry Division have sary of the organization of the 1st Infantry Honor for their service during World War II; deployed repeatedly to Iraq and Afghanistan Division; Whereas, in recognition of exemplary serv- in Operation Enduring Freedom, Operation Whereas the 1st Infantry Division was es- ice during World War II, the 1st Infantry Di- Iraqi Freedom, and Operation New Dawn; tablished in 1917 as the First Division, the vision was the recipient of— Whereas Specialist Ross A. McGinnis, a 1st first combat division in United States his- (1) the French Croix de Guerre with Palm Infantry Division soldier, is 1 of the very few tory, and has been on continuous active duty and Streamers embroidered with ‘‘Kas- people of the United States to receive the since 1917; serine’’ and ‘‘Normandy’’; Congressional Medal of Honor in the War on Whereas, from the heroic start of the 1st (2) the French Fourragere, embroidered Terror; Infantry Division, the 1st Infantry Division with ‘‘World War II’’; Whereas, in the defense of United States has played an integral part in United States (3) the Belgian Fourragere; and interests, the 1st Infantry Division deployed history by serving in— (4) the subordinate units of the 1st Infantry its units and soldiers to Africa in 2015 and (1) World War I; Division earned numerous Presidential Unit Kuwait in 2016; (2) World War II; Citations and Army Valorous Unit awards; Whereas, since November 2016, the head- (3) the Cold War; Whereas the 1st Infantry Division guarded quarters of the 1st Infantry Division has (4) the Vietnam War; the Nuremburg Trials and remained on occu- been in Iraq, where the 1st Infantry Division (5) Operations Desert Shield and Desert pation duty in Germany before returning is— Storm; home to Fort Riley, Kansas, in 1955; (1) engaged in the fight against the Islamic (6) the Balkans peacekeeping missions; Whereas, in 1965, the 1st Infantry Division State in Iraq and Syria (ISIS); and (7) the War on Terror; and was 1 of the first 2 divisions sent to the Viet- (2) providing the leadership structure for (8) as of April 2017, multiple operations nam War, and the 1st Infantry Division re- the Combined Joint Forces Land Component around the globe; mained in Vietnam for 5 years, during which Command–Operation Inherent Resolve; Whereas, immediately after its establish- the 1st Infantry Division— Whereas, as of April 2017— ment, the First Division started to build a (1) protected the capital, Saigon, from at- (1) the Combat Aviation Brigade of the 1st prestigious reputation for its service in tack by the North Vietnamese Army; Infantry Division is deployed to Afghanistan World War I; (2) conducted hundreds of— and is conducting combat aviation oper- Whereas, in May 1918, the victory of the (A) offensive operations between Saigon ations in support of the Afghan and inter- First Division at the Battle of Cantigny, and Cambodia against Viet Cong and North national security forces battling the France, was the first United States victory Vietnamese Army units; and Taliban; of World War I, and despite suffering more (B) civil action and pacification oper- (2) the 1st Armor Brigade Combat Team of the 1st Infantry Division is deployed to the than 1,000 casualties in that battle, the First ations to protect and assist the Viet- South Korea, where it bolsters United States Division seized the village from German namese people; and forces, defended the village against repeated deterrence against North Korea; and (3) responded to the 1968 Tet Offensive by (3) the 2nd Armor Brigade Combat Team of counterattacks, and bolstered the morale of clearing Tan Son Nhut Air Force Base of the 1st Infantry Division is at Fort Riley, the Allies; enemy forces, securing Saigon and counter- Kansas, where it is honing its combat-readi- Whereas, after the Battle of Cantigny, the attacking vigorously; ness in preparation for deployment; and First Division played a central role in other Whereas 12 soldiers of the 1st Infantry Di- Whereas, since the establishment of the 1st monumental battles of World War I, such vision earned the Congressional Medal of Infantry Division in 1917— as— Honor during the Vietnam War; (1) the 1st Infantry Division has been (1) the Battle of Soissons; Whereas, in recognition of exemplary serv- present all over the world, assisting in com- (2) the Battle of Saint-Mihiel; and ice during the Vietnam War, the 1st Infantry bat and noncombat missions for 100 years; (3) the Meuse-Argonne Offensive; Division was the recipient of— (2) more than 13,000 soldiers of the 1st In- Whereas 5 soldiers of the First Division re- (1) the Republic of Vietnam Cross of Gal- fantry Division have sacrificed their lives in ceived the Congressional Medal of Honor lantry with Palm for 1968; combat; and during World War I; (2) the Civic Action Honor Medal First (3) 35 soldiers of the 1st Infantry Division Whereas the First Division— Class; have received the Medal of Honor: Now, (1) remained on occupation duty in Ger- (3) the United States Army Meritorious therefore, be it many to enforce the Armistice; and Unit Commendation; and Resolved, That the Senate— (2) in September 1919, was the last combat (4) the subordinate units of the 1st Infantry (1) commemorates ‘‘A Century of Service’’, division to return home after World War I; Division earned numerous Presidential and the 100th anniversary of the 1st Infantry Di- Whereas, by the end of World War I, the Army awards; vision on June 8, 2017; First Division was 1 of only 4 United States Whereas, from 1970 to 1990 the 1st Infantry (2) commends the 1st Infantry Division for divisions to remain on active duty, which is Division— continuing to exemplify the motto of the 1st a strong testament to its accomplishments; (1) was a key component of the North At- Infantry Division, ‘‘No Mission Too Difficult. Whereas, in November 1939, the 1st Infan- lantic Treaty Organization deterrent strat- No Sacrifice Too Great. Duty First!’’; try Division was called to action again and, egy; (3) honors the memory of the more than in August 1942, became the first United (2) deployed annually to Germany on major 13,000 soldiers of the 1st Infantry Division States division sent to Europe during World exercises that demonstrated United States who lost their lives in battle; War II; resolve to friend and foe alike; and (4) expresses gratitude and support for all Whereas, during World War II, the 1st In- (3) contributed directly to the peaceful end 1st Infantry Division soldiers, veterans, and fantry Division fought bravely in Algeria, of the Cold War; their families, including 1st Infantry Divi- Tunisia, and Sicily in 1942 and 1943 before the Whereas, in November 1990, the 1st Infan- sion soldiers and their families of the past courage and resolve of the 1st Infantry Divi- try Division deployed to Saudi Arabia and and future and those who are serving as of sion was tested on Omaha Beach in Nor- played a key role in the famous ‘‘left hook’’ April 2017; and mandy, France; attack of the US VII Corps through the (5) recognizes that the 1st Infantry Divi- Whereas the 1st Infantry Division, rein- deserts of western Iraq to destroy the sion holds an honored place in United States forced by units of the 29th Infantry Division, Tawakalna Division of the vaunted Repub- history.

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00113 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.083 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2370 CONGRESSIONAL RECORD — SENATE April 5, 2017 SENATE RESOLUTION 116—CON- rity Council Resolution on February 28, 2017, cation, and inspiration of current and future DEMNING THE ASSAD REGIME which would have implemented a sanctions generations; FOR ITS CONTINUED USE OF regime against the Assad regime for its use Whereas, in 2017, the National Park Serv- CHEMICAL WEAPONS AGAINST of chemical weapons; ice began its second century of stewardship Whereas, on the morning of April 4, 2017, of the National Park System after the 2016 THE SYRIAN PEOPLE another chemical weapons attack took place National Park Service Centennial, which Mr. CARDIN (for himself, Mr. in the town of Khan Sheikhoun in Idlib Prov- celebrated 100 years of the work of the Na- CORKER, Mr. DURBIN, Mr. RUBIO, Mr. ince, killing at least 58 people, including 11 tional Park Service to protect and manage KAINE, Mrs. SHAHEEN, Mr. UDALL, Mr. children, according to the Syrian Observ- the majestic landscapes, hallowed battle- atory For Human Rights; fields, and iconic cultural and historical COONS, and Mr. GARDNER) submitted Whereas Human Rights Watch reported sites of the United States; the following resolution; which was re- that dozens of people showed symptoms con- Whereas the units of the National Park ferred to the Committee on Foreign sistent with exposure to chemicals after air- System span from Maine to Hawaii and Alas- Relations: craft attacked the town; ka and many of the units embody the rich S. RES. 116 Whereas the Assad regime is the only enti- natural heritage of the United States, reflect Whereas on August 21, 2013, the Assad re- ty operating in Syria that the UN-OPCW a unique national story through people and gime launched rockets carrying sarin gas, a Joint Investigative Mechanism has con- places, and offer countless opportunities for deadly nerve agent, against Ghouta, a rebel- firmed use of aircraft to launch chemical recreation, volunteerism, cultural exchange, held suburb of Damascus, killing 1,429 men, weapons attacks; education, civic engagement, and explo- women, and children, according to United Whereas, United States Ambassador to the ration; States Government estimates, while injuring United Nations Nikki Haley announced that Whereas the national parks of the United another 3,600 people; the United Nations Security Council would States attracted record-breaking visitation Whereas, on September 14, 2013, the Assad hold an emergency meeting on April 5, 2017, during the National Park Service Centen- regime agreed to enter the Convention on to discuss the chemical weapons attack in nial, with 331,000,000 recreational visits to the Prohibition of the Development, Produc- Idlib province; these incredible places in 2016; tion, Stockpiling, and Use of Chemical Weap- Now, therefore, be it Whereas the dedicated employees of the ons and on their Destruction, done at Paris Resolved, That the Senate— National Park Service carry out their mis- January 13, 1993, and entered into force April (1) holds the Assad regime responsible for sion to protect the national parks of the 29, 1997 (referred to in this Resolution as the war crimes and crimes against humanity, in- United States so that the vibrant culture, di- ‘‘Chemical Weapons Convention’’) and to cluding its confirmed use of chemical weap- verse wildlife, and priceless resources of the allow a joint mission between the United Na- ons; parks will endure for perpetuity; and tions and the Organization for the Preven- (2) condemns Russia for repeatedly block- Whereas the people of the United States tion of Chemical Weapons (referred to in this ing collective response to Bashar al-Assad’s have inherited the remarkable legacy of the Resolution as the ‘‘OPCW-UN’’) to oversee confirmed use of chemical weapons though National Park System and are entrusted the removal and elimination of Syria’s the United Nations Security Council; with its preservation as the United States chemical weapons program; (3) calls on the United Nations Security marks the beginning of the second century of Whereas, on September 27, 2013, the United Council to take immediate, decisive action the National Park System: Now, therefore, Nations Security Council unanimously in response to the Assad regime’s continued be it adopted Resolution 2118, which endorsed the use of chemical weapons; Resolved, That the Senate— destruction of Syria’s chemical weapons pro- (4) supports the critical work of the United (1) designates the week of April 15, 2017, gram and agreed that in the event of non- Nations-Organization for the Prohibition of through April 23, 2017, as ‘‘National Park compliance, it would take action under Chemical Weapons Joint Investigate Mecha- Week’’; and Chapter VII of the Charter of the United Na- nism; (2) encourages the people of the United tions; (5) expresses alarm that the continued use States and the world to visit and experience Whereas, on October 16, 2013, the OPCW-UN of chemical weapons by the Assad regime un- the treasured national parks of the United was formally established to investigate and dermines the integrity of the Chemical States. destroy Syria’s chemical weapons program Weapons Convention; Mr. DAINES. Mr. President, as a and stockpiles; (6) reiterates that Bashar al-Assad has lost fifth-generation Montanan who grew Whereas, on June 23, 2014, the OPCW-UN legitimacy as Syria’s leader; and up just a short drive from our Nation’s announced that the last of Syria’s declared (7) insists that Bashar al-Assad must be first national park, Yellowstone Na- chemical weapon stockpile had been shipped held accountable for his war crimes and crimes against humanity. tional Park, and as chair of the Senate out of Syria for destruction; Energy and Natural Resources Sub- Whereas, on September 30, 2014, the OPCW- f UN announced that it had completed its committee on National Parks, I am ex- mandate and officially ended operations; SENATE RESOLUTION 117—DESIG- cited to introduce this resolution to re- Whereas on October 14, 2013, the Syria Gov- NATING THE WEEK OF APRIL 15, assure the public that Congress recog- ernment entered into the Chemical Weapons 2017, THROUGH APRIL 23, 2017, AS nizes the remarkable value that our Convention; ‘‘NATIONAL PARK WEEK’’ National Parks bring to our national Whereas the Chemical Weapons Conven- Mr. DAINES (for himself, Ms. heritage. From America’s hallowed tion has 192 member states and bans all battlefields in Gettysburg and Fred- HIRONO, Ms. MURKOWSKI, Ms. CANT- chemical weapons; ericksburg, to the glacial peaks, gey- WELL, Mr. ALEXANDER, Mr. UDALL, Mr. Whereas, the Assad regime was subse- sers, and big game in my home State of quently accused of committing more chem- INHOFE, Mr. HEINRICH, Mrs. CAPITO, Mr. Montana, to the ancient cultural re- ical weapons attacks on Syrian civilians in WYDEN, Mr. BLUNT, Mr. FRANKEN, Mr. sources, volcanoes, and marine life of opposition-held areas by using chlorine- RUBIO, Ms. STABENOW, Mr. GARDNER, Hawaii and all across the plains, many based chemical weapons, in violation of the Mr. WARNER, Mr. CASSIDY, Mr. NELSON, Chemical Weapons Convention; of the units of the National Park Sys- Mr. PORTMAN, Mrs. FEINSTEIN, Mr. BAR- Whereas on August 7, 2015, the United Na- tem bring remarkable opportunities for RASSO, Mrs. MURRAY, Mr. ENZI, Mr. tions Security Council adopted Resolution cultural education and outdoor recre- WHITEHOUSE, Ms. COLLINS, Mr. REED, 2235, which established the UN-OPCW Joint ation for people from around the world Mr. COTTON, Mr. TESTER, Mr. CORKER, Investigative Mechanism to identify which to enjoy. I am excited to be joined by individuals and entities were responsible for Ms. BALDWIN, Mr. SULLIVAN, Mr. ranking member MAZIE HIRONO and the use of chlorine-based chemical weapons PETERS, Mr. SCHATZ, Mr. KING, Mrs. over 30 of our bipartisan colleagues attacks in Syria; SHAHEEN, and Mr. LEAHY) submitted Whereas, on October 27, 2016, the UN-OPCW from Alaska to Maine and Florida in the following resolution; which was introducing this resolution. The sup- Joint Investigative Mechanism definitively considered and agreed to: confirmed that the Assad regime was respon- port of this resolution is a reflection sible for the use of chemical weapons in S. RES. 117 that our National Parks bridge polit- Syria in Talmenes in April 2014, in Qmenas Whereas, on March 1, 1872, Congress estab- ical divides and make our Nation in March 2015, and in Sarmin in March 2016; lished Yellowstone National Park as the first uniquely American. As the National Whereas, the United Nation Security Coun- national park for the enjoyment of the peo- Park System begins its second century cil adopted Resolution 2319 on November 17, ple of the United States; this year, we have seen record visita- 2016, which renewed the UN-OPCW Joint In- Whereas, on August 25, 1916, Congress es- vestigative Mechanism mandate for one tablished the National Park Service with the tion with 331 million visits in 2016, but year; mission to preserve unimpaired the natural record visitation also brings additional Whereas, the Russian Federation, along and cultural resources and values of the Na- strain on the National Park Service’s with China, blocked a United Nations Secu- tional Park System for the enjoyment, edu- failing infrastructure. I am hopeful

VerDate Sep 11 2014 06:19 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00114 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.088 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2371 that Congress, the Trump administra- Resolved, That the Senate— COMMITTEE ON HEALTH, EDUCATION, LABOR, tion and future administrations will (1) affirms that the United States stands AND PENSIONS continue to invest in our National united in condemning hate and evil in all The Committee on Health, Edu- parks to ensure their legacy endures forms; cation, Labor, and Pensions is author- for our children and generations to (2) rejects hate-motivated crime as an at- ized to meet, during the session of the tack on the fabric of the society of the come. United States and the ideals of pluralism and Senate, in order to conduct a hearing f respect; entitled ‘‘Nomination of Scott Gott- lieb, MD, to serve as Commissioner of SENATE RESOLUTION 118—CON- (3) condemns hate crime and any other form of racism, religious or ethnic bias, dis- Food and Drugs’’ on Wednesday, April DEMNING HATE CRIME AND ANY crimination, incitement to violence, or ani- 5, 2017, at 10 a.m., in room 430 of the OTHER FORM OF RACISM, RELI- mus targeting a minority in the United Dirksen Senate Office Building. GIOUS OR ETHNIC BIAS, DIS- States; COMMITTEE ON HOMELAND SECURITY AND CRIMINATION, INCITEMENT TO (4) calls on Federal law enforcement offi- GOVERNMENTAL AFFAIRS VIOLENCE, OR ANIMUS TAR- cials, working with State and local offi- GETING A MINORITY IN THE cials— The Committee on Homeland Secu- UNITED STATES (A) to expeditiously investigate all cred- rity and Governmental Affairs is au- ible reports of hate crimes and incidents and thorized to meet during the session of Ms. HARRIS (for herself, Mr. RUBIO, threats against minorities in the United the Senate on Wednesday, April 5, 2017, Mrs. FEINSTEIN, and Ms. COLLINS) sub- States; and at 9:30 a.m., in order to conduct a hear- mitted the following resolution; which (B) to hold the perpetrators of those ing entitled ‘‘Improving Border Secu- was considered and agreed to: crimes, incidents, or threats accountable and rity and Public Health.’’ S. RES. 118 bring the perpetrators to justice; SUBCOMMITTEE ON ECONOMIC POLICY Whereas, in the past several years, violent (5) encourages the Department of Justice crimes, threats of violence, and other inci- and other Federal agencies— The Committee on Banking, Housing dents of hate-motivated targeting of reli- (A) to work to improve the reporting of and Urban Affairs Subcommittee on gious, racial, and ethnic minorities have in- hate crimes; and Economic Policy is authorized to meet creased across the United States; (B) to emphasize the importance of the during the session of the Senate on Whereas, in 2015, hate crimes targeting agencies’ collection and reporting of data Wednesday, April 5, 2017 at 3 p.m. to Muslims in the United States increased by 67 pursuant to Federal law; (6) encourages the development of an inter- conduct a hearing entitled ‘‘The Cur- percent, reaching a level of violence tar- rent State of Retirement Security in geting Muslim Americans that the United agency task force led by the Attorney Gen- States had not experienced since the after- eral to collaborate on the development of ef- the United States.’’ math of the September 11, 2001, attacks, ac- fective strategies and efforts to detect and SUBCOMMITTEE ON AFRICA AND GLOBAL HEALTH cording to the Federal Bureau of Investiga- deter hate crime in order to protect minority The Committee on Foreign Relations tion; communities; and Subcommittee on Africa and Global Whereas, in 2015, anti-Semitic incidents in- (7) calls on the executive branch— (A) to continue to offer Federal assistance Health Policy is authorized to meet creased in the United States for the second during the session of the Senate on straight year, according to the Anti-Defama- that may be available for victims of hate tion League’s 2015 Audit of Anti-Semitic In- crimes; and Wednesday, April 5, 2017, at 2 p.m., to cidents, which describes trends such as the (B) to continue to carry out safety and pre- hold a hearing entitled ‘‘A Progress Re- tripling of assaults targeting Jews since 2012 paredness programs for religious institu- port on Conflict Minerals.’’ tions, places of worship, and other institu- and the rise of online harassment and hate f speech directed at Jewish journalists and in- tions that have been targeted because of the dividuals through social media; affiliation of the institutions with any par- MEASURES READ THE FIRST Whereas, in 2015, anti-Semitic incidents at ticular religious, racial, or ethnic minority TIME—S. 861 AND H.R. 1301 institutions of higher education nearly dou- in the United States. Mr. GARDNER. Mr. President, I un- bled compared to the number of those inci- f dents in 2014, and during the 2016–2017 school derstand there are two bills at the year there has been an increase in white su- AUTHORITY FOR COMMITTEES TO desk, and I ask for their first reading premacist activity on college campuses MEET en bloc. across the United States, according to the The PRESIDING OFFICER. The Anti-Defamation League; Mr. BOOZMAN. Mr. President, I have 7 requests for committees to meet dur- clerk will read the bills by title for the Whereas, in 2015, among single-bias hate first time en bloc. crime incidents in the United States, 59.2 ing today’s session of the Senate. They percent of victims were targeted due to ra- have the approval of the Majority and The legislative clerk read as follows: cial, ethnic, or ancestry bias, and among Minority leaders. A bill (S. 861) to provide for the compensa- those victims, 52.2 percent were victims of Pursuant to Rule XXVI, paragraph tion of Federal employees affected by lapses in appropriations. crimes motivated by their offenders’ anti- 5(a), of the Standing Rules of the Sen- Black or anti-African American bias, accord- A bill (H.R. 1301) making appropriations ing to the Federal Bureau of Investigation; ate, the following committees are au- for the Department of Defense for the fiscal Whereas, in 2017, there have been more thorized to meet during today’s session year ending September 30, 2017, and for other than 100 reported bomb threats against Jew- of the Senate: purposes. ish community centers, Jewish day schools, COMMITTEE ON ARMED SERVICES Mr. GARDNER. I now ask for a sec- and other Jewish organizations and institu- The Committee on Armed Services is ond reading, and I object to my own re- tions in more than 38 States; authorized to meet during the session quest, all en bloc. Whereas, in 2017, Islamic centers and mosques have been burned in the States of of the Senate on Wednesday, April 5, The PRESIDING OFFICER. Objec- Texas, Washington, and Florida, and Jewish 2017, at 2:30 p.m. tion having been heard, the bills will cemeteries have been desecrated in the COMMITTEE ON COMMERCE, SCIENCE, AND receive their second reading on the States of Missouri and Pennsylvania; TRANSPORTATION next legislative day. Whereas, in 2017, there has been harass- The Committee on Commerce, f ment and hate-based violence against indi- Science, and Transportation is author- viduals who are perceived to be Arab or Mus- ized to hold an Executive Session dur- CONDEMNING HATE CRIME AND lim, including members of South Asian com- ing the session of the Senate on ANY OTHER FORM OF RACISM, munities in the United States, and Hindu RELIGIOUS OR ETHNIC BIAS, DIS- and Sikh Americans have been the target of Wednesday, April 5, 2017, at 10 a.m., in hate-based violence targeting religious mi- room 216 of the Hart Senate Office CRIMINATION, INCITEMENT TO norities; and Building. VIOLENCE, OR ANIMUS TAR- Whereas, on February 28, 2017, President COMMITTEE ON ENVIRONMENT AND PUBLIC GETING A MINORITY IN THE Donald Trump, before a joint session of Con- WORKS UNITED STATES gress, acknowledged threats targeting Jew- The Committee on Environment and Mr. GARDNER. Mr. President, I ask ish community centers and the vandalism of Jewish cemeteries, and stated that ‘‘we are a Public Works is authorized to meet unanimous consent that the Senate country that stands united in condemning during the session of the Senate on proceed to the immediate consider- hate and evil in all of its very ugly forms’’: April 5, 2017, at 10 a.m., in room 406 of ation of S. Res. 118, submitted earlier Now, therefore, be it the Dirksen Senate Office Building. today.

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00115 Fmt 0624 Sfmt 0634 E:\CR\FM\A04AP6.087 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2372 CONGRESSIONAL RECORD — SENATE April 5, 2017 The PRESIDING OFFICER. The The PRESIDING OFFICER. Without And I said: No, Judge Gorsuch, I clerk will report the resolution by objection, it is so ordered. mean the people of Washington voted title. Ms. CANTWELL. Mr. President, I on these issues and voted to protect a The legislative clerk read as follows: rise to oppose the nomination of Neil woman’s right to access to reproduc- A resolution (S. Res. 118) condemning hate Gorsuch and to oppose cloture on this tive healthcare. crime and any other form of racism, reli- nomination. When it comes to the right to pri- gious or ethnic bias, discrimination, incite- I take seriously the responsibility to vacy, I work hard to understand where ment to violence, or animus targeting a mi- give advice and consent, and I take se- our judiciary is coming from, and if it nority in the United States. riously the President’s remarks that he is for the next 30 to 35 years, I guar- There being no objection, the Senate planned on nominating someone to the antee you these privacy rights are proceeded to consider the resolution. Court who would overturn Roe v. Wade. going to be of critical importance. Mr. GARDNER. Mr. President, I ask A U.S. Supreme Court nominee re- In the longstanding precedent known unanimous consent that the resolution quires 60 votes, and if a nominee can’t as the Chevron doctrine, judges should be agreed to, the preamble be agreed clear 60 votes, then I agree with my defer to reasonable agency interpreta- to, and the motions to reconsider be colleague, the Senator from New York, tions of ambiguous statutory language. considered made and laid upon the that it is the nominee who should be It allows agencies to get expert input table with no intervening action or de- changed and not the Senate rules. on their decisions and regulations. By bate. If confirmed, Judge Gorsuch will overturning this doctrine, it could The PRESIDING OFFICER. Without have a lifetime appointment to the make it easier for courts to challenge objection, it is so ordered. U.S. Supreme Court and have an im- important agency decisions protecting The resolution (S. Res. 118) was pact on many, many Americans’ lives. health and the environment. This issue agreed to. When people say lifetime, I think that is also important to my State. We The preamble was agreed to. doesn’t quite accurately reflect this fought the Enron case to make sure (The resolution, with its preamble, is issue and nomination. Lifetime, in this that the Federal energy regulators did printed in today’s RECORD under ‘‘Sub- case, may mean 30 to 35 years. their job in protecting the ratepayers mitted Resolutions.’’) It is hard for me in an information of Washington from, at the time, what f age to think of all the issues that are was, in my opinion, a violation of the ORDERS FOR THURSDAY, APRIL 6, going to occur in the next 30 to 35 years Federal Power Act on just and reason- 2017 and what issues this nominee might able rates. We had to go to a great ex- rule on. But I know this: Right now, Mr. GARDNER. Mr. President, I ask tent to make sure that the agencies’ privacy rights and how they affect the unanimous consent that when the Sen- decisions were carefully considered to lives of many Americans are critical, ate completes its business today, it re- make sure we didn’t become the deep not just to my constituents but to peo- cess until 10 a.m., Thursday, April 6; pockets. ple all over the country. Making sure that this doctrine is further, that following the prayer and Judge Gorsuch is commonly referred continued and not overturned is impor- pledge, the time for the two leaders be to as a proponent of originalism and tant. I find it troubling that Judge reserved for their use later in the day; textualism. He believes the U.S. Con- Gorsuch concluded that this precedent further, that following leader remarks, stitution should be interpreted by the from Chevron v. the Natural Resources the time until the cloture vote on the original intentions of those who draft- Defense Council should be overturned. Gorsuch nomination be equally divided ed it as closely as possible. As someone Also, yesterday was Equal Pay Day, between Senators GRASSLEY and FEIN- who knows well the record of the and there was a lot of discussion about STEIN or their designees; finally, that former Supreme Court Justice who how women still face unequal wages. the mandatory quorum call with re- wrote the Griswold v. Connecticut deci- What would Judge Gorsuch do about spect to the cloture vote be waived. sion, I doubt that one would say that equal pay? The PRESIDING OFFICER. Without he was an originalist. As a professor, he told his students objection, it is so ordered. Some legal scholars have even called that women manipulate family leave f Judge Gorsuch a selective originalist, policies for their own benefits. As a EXECUTIVE SESSION favoring some textual provisions while judge, he frequently ruled against overlooking others. And while no one women and their rights. In Hobby expects Judge Gorsuch to reveal how Lobby v. Sebelius, a privately held EXECUTIVE CALENDAR—Continued he would vote on a particular case. company, which was a store chain, Mr. GARDNER. Mr. President, I ask During his Senate confirmation hear- challenged the Affordable Care Act’s unanimous consent that the Senate re- ing, he did not give Senators enough birth control benefit. The Affordable sume executive session to consider the background about his judicial philos- Care Act required health insurance nomination of Neil Gorsuch. ophy. In our private meeting, he did plans to provide women with birth con- The PRESIDING OFFICER. Without not give me enough of an assurance of trol coverage with no cost sharing. objection, it is so ordered. his philosophy as it relates to these Judge Gorsuch joined the Tenth Cir- ORDER FOR RECESS issues on privacy for my constituents cuit majority, holding that an employ- Mr. GARDNER. Mr. President, if in Washington. er’s religious beliefs could override an there is no further business to come be- Whether we are talking about access employee’s right to birth control cov- fore the Senate, I ask unanimous con- to healthcare or we are protecting indi- erage. Judge Gorsuch also supported an sent that it stand in recess under the viduals’ privacy rights from unwanted effort to defund Planned Parenthood, previous order, following the remarks corporation or government interven- an important provider of women’s of Senator CANTWELL for 10 minutes, tion, these issues are critically impor- health services. In Planned Parenthood Senator FRANKEN for 30 minutes, Sen- tant. Judge Gorsuch told the Senate Association of Utah v. Herbert, the ator MURPHY for 30 minutes, and Sen- Judiciary Committee that he does rec- Tenth Circuit upheld an injunction to ator HIRONO for 30 minutes. ognize privacy rights. However, his ear- prevent the Governor of Utah from The PRESIDING OFFICER. Without lier writings on unenumerated con- defunding Planned Parenthood. How- objection, it is so ordered. stitutional rights contradict this state- ever, Judge Gorsuch dissented and Mr. GARDNER. Mr. President, I sug- ment. This contradiction raised ques- pushed for a rehearing of this case by gest the absence of a quorum. tions with me, and I worked to try to the full court. The PRESIDING OFFICER. The further clarify his judicial philosophy Judge Gorsuch has had a narrow in- clerk will call the roll. on this issue. terpretation of the laws meant to pro- The legislative clerk proceeded to I told him that my State had actu- tect workers against discrimination. In call the roll. ally codified the rights of women to another case, a worker alleged that she Ms. CANTWELL. Mr. President, I ask have access to reproductive healthcare. had been unlawfully discriminated unanimous consent that the order for He said: Oh, you mean your State against based on gender because she the quorum call be rescinded. legislature did that. took 2 weeks of leave under the Family

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00116 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.271 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2373 Medical Leave Act. She claimed that Not having a deeper understanding voted to make President Obama the her employer had a higher performance about his judicial philosophy and given President of the United States. None- standard for women than for her male my great concerns for the right to pri- theless, Republican members of the Ju- coworkers. The Tenth Circuit ruled in vacy issues that will remain constant diciary Committee gathered behind her favor and found that the employer in our society for the next 30 years and closed doors and vowed to defy the had discriminated against her. How- given these issues around regulatory eventual nominee a hearing. Many Re- ever, Judge Gorsuch dissented, arguing standards that are so important, I can- publicans refused to even meet with evidence of discrimination was entirely not support this nomination nor sup- the nominee. They said it didn’t mat- absent. port cloture to move ahead. ter who the President nominated; they These issues and rulings make me I yield the floor. said this was about principle. concerned about Judge Gorsuch’s judi- Mr. President, I suggest the absence But Senate Republicans had a dif- cial philosophy as it relates to what I of a quorum. ficult time justifying their obstruc- now believe is an accepted standard. The PRESIDING OFFICER. The tion—that is, until they decided to Judge Gorsuch has also ruled against clerk will call the roll. mischaracterize a speech delivered by LGBTQ individuals seeking fair and The legislative clerk proceeded to former Judiciary Committee chairman nondiscriminatory treatment. Lambda call the roll. Joe Biden in June of 1992. In that June Legal and other groups have called his Mr. FRANKEN. Mr. President, I ask of 1992 speech, then-Senator Biden dis- record openly hostile toward the unanimous consent that the order for cussed the possibility of a Supreme LGBTQ community. Judge Gorsuch has the quorum call be rescinded. Court Justice resigning in an election held that a transwoman’s constitu- The PRESIDING OFFICER. Without year in order to ensure that a Presi- tional rights were not violated, citing objection, it is so ordered. dent of the same party could name a the absence of any medical evidence. CHEMICAL ATTACK IN SYRIA replacement. Under those cir- Also, as many of my colleagues have Mr. FRANKEN. Mr. President, before cumstances, he said, the President talked about, Judge Gorsuch has had a I begin my remarks on Judge Gorsuch, should refrain from nominating a re- pattern of ruling against the little guy. I just want to take a minute to talk placement and the Senate should not My colleague from Hawaii noted that about the chemical attack in Syria. hold confirmation hearings until after he seems to favor corporate interests Words cannot describe these vicious the election. over workers’ rights and private inter- attacks against civilians. We have all My Republican colleagues seized ests over public interests. seen the horrific footage of the vic- upon this small portion of Senator Look at the outcome in many of tims, many of whom were children. Biden’s speech and dubbed it the these cases, which have been cited fre- These are innocent men, women, and ‘‘Biden rule.’’ Chairman GRASSLEY said quently since his nomination—none children who, through no fault of their the Senate ought to abide by the Biden more than the case involving the Indi- own, are caught in the middle of a rule, which he said holds that there are viduals with Disabilities Education bloody civil war, stuck between a bru- ‘‘no presidential Supreme Court nomi- Act. I think it is so important that it tal regime, armed groups, and foreign nations in an election year.’’ The majority leader said: ‘‘As Chair- needs to continue to be talked about. powers. My heart goes out to the vic- This case, which was recently re- man GRASSLEY and I declared . . . the tims and their families. jected by the U.S. Supreme Court, lim- The world has come together and un- Senate will continue to observe the ited the opportunities for children with equivocally condemned these acts and Biden Rule so that the American peo- disabilities. Judge Gorsuch had con- ple have a voice in this momentous po- their perpetrators. We must work to- cluded that to comply with the law, sition.’’ So in order to justify a truly gether to find a path toward peace and the school’s responsibility to the stu- unprecedented act of obstruction, my stability in Syria, and the United dent was to make progress that was Republican colleagues pointed to the States must take a leadership role in ‘‘merely more than de minimis.’’ That so-called Biden rule and said they were that effort. is to say that those children in our standing on principle. That was the Mr. President, I rise in opposition to education system who have a special principle. But my Republican col- the nomination of Judge Neil Gorsuch need, whether it be autism or some- leagues chose to overlook a few impor- to serve as an Associate Justice on the thing else, through our education sys- tant details. Supreme Court. After meeting with the tem need to make progress, and it First of all, the scenario Senator nominee, carefully reviewing his could be no more than de minimis. Biden described in his 90-minute speech This ruling impacts hundreds of record, and questioning him during his was not the situation our country faced thousands of students all across Amer- confirmation hearing, I have come to last year. No one strategically resigned ica, including in the State of Wash- the conclusion that elevating Judge last year. A Justice died. No one dies ington. He wrote the majority opinion Neil Gorsuch to the Supreme Court’s to game the system. and used the word ‘‘merely.’’ bench would merely guarantee more of Second and most importantly, my I asked Judge Gorsuch about this be- the same from the Roberts Court—a Republican colleagues ignored the ac- cause of the cases I mentioned earlier sharply divided, already activist Court tual point that Senator Biden made in on Federal energy regulators and the that routinely sides with powerful cor- that speech. If they had bothered to fact that we needed strong anti-manip- porate interests over the rights of aver- read the entire speech—and I suspect ulation laws, and we needed people to age Americans. they actually had—they would have interpret the standards to make sure I think it is important to start by ac- found that further down, Senator Biden that they were upholding the interests knowledging just exactly how it is that said—and this is important. This is of the public. We had quite a long dis- Judge Gorsuch came to be before the what Senator Biden said in the speech cussion about this issue. Judge Senate; namely, this body’s failure to used as the justification not to take up Gorsuch suggested that he was bound fulfill one of its core functions. Imme- Merrick Garland. Senator Biden said in by a previous decision. diately following the death of Justice that speech, ‘‘If the president [then I know some of my colleagues have Scalia, in a move as cynical as it was George H. W. Bush] consults and co- also noted this, but when Justice Rob- irresponsible, Senate Republicans an- operates with the Senate or moderates erts wrote the unanimous opinion re- nounced that they would not move for- his selections absent consultation, jecting these ‘‘merely more than de ward with filling the vacancy until then his nominee may enjoy my sup- minimis’’ standards that Judge after the Presidential election. Before port, as did Justices Kennedy and Gorsuch used, Justice Roberts said: President Obama had even named a Souter.’’ ‘‘When all is said and done, a student nominee, the majority leader said: Allow me to dwell on that for a mo- offered an educational program pro- ‘‘The American people should have a ment. Senator Biden said that if a Su- viding merely more than de minimis voice in the selection of their next Su- preme Court vacancy arose during an progress from year to year can hardly preme Court Justice.’’ The only prob- election year and the President con- said to have been offered an education lem with the majority leader’s rea- sulted with the Senate or, absent con- at all.’’ On this point, I agree with the soning was the American people did sultation, put forward a moderate, con- Chief Justice. have a voice in the decision; they had sensus candidate, that candidate

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00117 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.272 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2374 CONGRESSIONAL RECORD — SENATE April 5, 2017 should enjoy the support of the Judici- knew it. That is why my Republican vice president, who was working with ary Committee’s chairman. That is the colleagues had to hide behind new and the transition team. Judge Gorsuch Biden rule. That is the Biden rule. misleading so-called rules in order to went on to interview with a host of If Senate Republicans had actually deny him a hearing and a vote. other members of the transition team, followed the Biden rule, we wouldn’t be Judge Gorsuch is no Merrick Gar- including now-White House Chief of here today. Merrick Garland would be land. Judge Gorsuch is a creature of Staff Reince Priebus and Chief Strate- sitting on the Supreme Court bench. politics. That is not what Judge gist Stephen Bannon. Weeks later, Over the past few days, I have heard Gorsuch told me when I met him ear- President Trump had officially nomi- my Republican colleagues denounce lier this year. I asked Judge Gorsuch if nated Judge Gorsuch. Both Mr. Reince Democratic opposition to Judge he was bothered by the way the Senate Priebus and Mr. Bannon appeared be- Gorsuch by claiming that there never treated Merrick Garland. He responded fore rightwing activists at CPAC and has been a partisan filibuster of a Su- by telling me that he tries to stay talked about his nomination. Mr. preme Court nominee. But if the away from politics. But documents Priebus told the crowd that Justice shameful and unprecedented obstruc- that the Judiciary Committee received Gorsuch would bring about ‘‘a change tion that Republicans used to effec- from the Department of Justice, in- of potentially 40 years of law.’’ He said: tively block President Obama from ap- cluding emails between Judge Gorsuch ‘‘Neil Gorsuch represents . . . the type pointing a Supreme Court Justice and Bush administration officials, of judge that has the vision of Donald wasn’t a partisan filibuster, then I show that Judge Gorsuch was very Trump, and [his nomination] fulfills don’t know what is. heavily involved in politics. A resume the promise that he made to all of Perhaps my Republican colleagues he sent to President Bush’s political di- you,’’ gesturing to a crowd of conserv- were concerned that President Obama rector in November 2004—back when ative activists. would seek to replace Justice Scalia— Judge Gorsuch was looking for a job— So whether Mr. Priebus was sug- a reliably conservative member of the detailed his work on Republican polit- gesting that, if confirmed, Judge Court—with a jurist whose view would ical campaigns dating back to 1976 and Gorsuch would unsettle 40 years of place him or her on the opposite end of highlighted an award he received from precedent—like Roe v. Wade or Chev- the ideological spectrum. That seems Senate Republicans for his work to ad- ron—or whether he was suggesting that to be the concern that my good friend vance President Bush’s judicial nomi- Judge Gorsuch would be a reliably con- Senator HATCH expressed when he said: nees. Ken Mehlman, the former chair- servative vote for the next 40 years, it [T]he President told me several times he’s man of the Republican National Com- seems clear to me that confirming going to name a moderate, but I don’t be- mittee, later recommended Judge Judge Gorsuch is central to President lieve him. [President Obama] could easily Gorsuch for a post at the Justice De- Trump’s political agenda. name Merrick Garland, who is a fine man. He partment and described him as a ‘‘true Now, my Republican colleagues probably won’t do that because this appoint- loyalist.’’ would have you believe that nothing ment is about the election. So I’m pretty Understand, being politically active could be further from the truth. In sure he’ll name someone the [Democratic or being a Republican is not a disquali- their view, they say that judges call base] wants. fying characteristic in a Supreme balls and strikes—nothing more, noth- But as it turns out, in recognition of Court nominee, at least not in my ing less. Earlier this week, for example, the forthcoming election and the Re- book, but Judge Gorsuch’s resume is Senator CRUZ said: ‘‘Conservatives un- publican-controlled Senate, President relevant here because, contrary to derstand that it is the role of a judge, Obama did exactly what then-Senator what he told me, his resume estab- and especially the role of a Supreme Biden said a President should do: He lishes that he is not just intimately fa- Court Justice, simply to follow the named a moderate, consensus can- miliar with politics; he knows the poli- law.’’ He said that Senate Republicans didate. He named Merrick Garland. tics of the judicial nominations process ‘‘are not confirming someone who will Judge Garland was supremely well and he knows it well. Let me explain simply vote with our team on a given qualified for the job. Here is a guy who why I think that is important. issue.’’ It is Democratic judges, accord- was his high school’s valedictorian, During the campaign, then-Candidate ing to Senator CRUZ who, ‘‘by and large who attended Harvard on a scholarship, Trump spoke openly about his litmus view the process as achieving the re- won clerkships with legal legends like test and what kind of a judge he would sult they want and view the process of Second Circuit Judge Henry Friendly appoint to fill Justice Scalia’s seat on adjudicating a case as a political proc- and Supreme Court Justice William the Court. He said that he would ‘‘ap- ess.’’ Brennan, and left a partnership at a point judges very much in the mold of Let me explain why I take issue with prestigious law firm to become a Fed- Justice Scalia.’’ During the final de- that. If my Republican colleagues truly eral prosecutor during the George H.W. bate, he said, ‘‘The justices that I’m believe that a judge’s proper role is to Bush administration. He later joined going to appoint will be pro-life. They call balls and strikes and to decide the Justice Department, where he pros- will have a conservative bent.’’ cases narrowly, they would have con- ecuted the men responsible for bomb- Part of the reason that then-Can- firmed Merrick Garland, a judge with a ing the Oklahoma City Federal Build- didate Trump could say that with such proven track record of crafting con- ing in 1995, and Merrick Garland kept conviction is because he had already sensus opinions built on narrow hold- in touch with the survivors’ and the outsourced the job of coming up with a ings. But a judge who calls balls and victims’ families. That is the reason list of potential nominees to the Fed- strikes isn’t really what my colleagues why one of the very first of three Re- eralist Society and the Heritage Foun- want. Contrary to what Senator CRUZ publicans agreed to meet with Judge dation, both rightwing organizations. said, what my Republican colleagues Garland—Senator JIM INHOFE of Okla- The groups produced a list of 21 con- want is a results-oriented judge. Why homa, a staunch conservative—because servative judges for then-Candidate else would they hold open a seat on the people of Oklahoma had such regard for Trump, a list that included Judge Supreme Court bench? Why else would Merrick Garland. Gorsuch. Presumably, the Federalist they turn to the Heritage Foundation After Judge Garland was confirmed Society and the Heritage Foundation and the Federalist Society for can- to the DC Circuit in 1997, he earned a knew something about the judicial phi- didates? Why else would they trample reputation for working with his col- losophy of the men and women who it on the traditions of the Senate? What leagues from across the ideological had decided to include on that list, my Republican colleagues really want spectrum to identify areas of agree- given Judge Gorsuch’s previous work is a judge who will vote with their ment and to craft strong consensus to push judicial nominees through the team, and that is the judge they will opinions, often by deciding a case on Senate. I am sure he knew a thing or get by confirming Neil Gorsuch. That the narrowest grounds possible. two about the Heritage Foundation and is what this is all about. That is what Judge Garland was the right choice the Federalist Society, as well. this is about. at the right time. He wasn’t a partisan In fact, Judge Gorsuch first learned Unlike Merrick Garland, Judge warrior or a partisan political animal; that he was under consideration for the Gorsuch has little interest in reaching he was a judge’s judge, and everyone vacancy from the Federalist Society’s consensus or in citing cases narrowly.

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00118 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.274 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2375 Now, Judge Gorsuch took great pains covers that the brakes on his trailer I asked him if he had even thought to paint himself as a mainstream are locked. It is 14 below zero out. about what he would have done if he nominee. He pointed out that the These brakes are literally frozen. So he were Maddin. You know, he had heard Tenth Circuit ruled unanimously 97 calls his dispatcher to ask for repairs. the case. He did not answer. So I asked percent of the time, and that he was in And he waits. him again. I asked him, given the the majority 99 percent of the time, While he is waiting, the heater in his choices of sitting there and possibly but that is not unusual, and it doesn’t cab stops working, and he falls asleep freezing to death or going on the road provide any insight into his approach and is awakened by a call from his with an unsafe vehicle, or doing what to being a judge. After all, the Courts cousin. When Maddin sits up to answer Mr. Maddin did, and Judge Gorsuch re- of Appeals are required to follow Su- the phone, he realizes that his torso is sponded: Senator, I don’t know. I was preme Court precedent in all circuits numb, and that he can’t feel his feet. not in the man’s shoes. around the country, and the vast ma- He is having trouble breathing. His Judge Gorsuch said he decides cases jority of their cases are decided unani- cousin later says that Maddin’s voice is based on the facts and the law alone. ‘‘I mously. slurred, and he wasn’t tracking. Ac- go to the law,’’ he said. But so, in fact, So in order to really understand cording to the Mayo Clinic, these are did the majority. Here is the operable Judge Gorsuch’s approach to deciding all symptoms of hyperthermia. Maddin law. Here is the law: ‘‘A person may cases—in order to really understand calls into the dispatcher again. He is not discharge an employee who refuses how he views the law—it is critically told to hang on. He says: I can’t. His to operate a vehicle because the em- important to look at the cases where boss tells him he has two choices, wait ployee has reasonable apprehension of he chose to write separate concur- there until the repair truck comes, or serious injury to the employee or the rences or dissents. These concurring he can take the whole rig on the road, public because of the vehicle’s haz- and dissenting opinions offer the clear- including the trailer with frozen ardous safety or security condition.’’ est window into how he really thinks. brakes. Those are the two options he is The majority ruled that the company Judge Gorsuch tends to write a lot of given by his boss. Maddin knows that if could not fire the truckdriver because concurring and dissenting opinions. he waits, he may very well freeze to he had refused to operate the rig, the Even when Judge Gorsuch agrees with death. That is his first option, or he entire rig, because it was unsafe. But the majority and joins their decision, can go out on the interstate at 2 Judge Gorsuch said no. While operating he frequently writes his own concur- o’clock in the morning, dragging a the cab, he was operating the vehicle. rence, setting out his own views. Judge fully-loaded trailer with frozen brakes Therefore, he did not refuse to operate Gorsuch has done this 31 times, includ- at 10, maybe 15 miles per hour max, a vehicle. Judge Gorsuch said he made that de- ing writing two concurrences to major- posing a safety hazard to other drivers cision by applying the plain meaning ity decisions that he, himself, had writ- at the interstate. Remember, it is 2 rule. I pointed out that the plain mean- ten. That is not seeking out consensus. o’clock in the morning. It is dark. It is ing rule has an exception: ‘‘When using That is holding his nose to join a con- probably icy. Imagine a car going 80, 85 the plain meaning rule would create an sensus opinion, and then writing sepa- miles per hour—as people do at 2 absurd result, courts should depart rately in order to point the way to o’clock in the morning on an inter- from the plain meaning.’’ It is absurd broader, more sweeping rulings that state—coming up over a hill behind to say that this company was within other courts might issue in future that rig, and then coming down and its rights to fire him because he re- cases—other courts like the Supreme seeing this rig going 10 or 15 miles per fused to choose between possibly dying Court, which doesn’t have to follow hour, where you are going 80, 85. That by freezing to death or possibly killing precedent, which he is now poised to would be like suddenly coming down on other people by driving a semi on an join and where he will not be re- a stopped tractor trailer while you are interstate at 10 miles an hour at 2 in strained by precedent. going 70 miles per hour. That is his sec- the morning. Frankly, the company is Judge Gorsuch is a results-oriented ond option. fortunate that Mr. Maddin made the judge, and his record demonstrates Instead, Maddin does what any of us choice he made because otherwise they that he approaches cases with a very would do. He unhitches the trailer and may very well have faced a wrongful specific outcome in mind. Contrary to drives down the interstate to find death claim. what my Republican colleagues would someplace warm, and he does get Everyone who was in the hearing have you believe, he doesn’t hide that warm. Then he returns to the trailer knows what Judge Gorsuch would have judicial philosophy. Whether it is his when the repair truck finally shows up, done in Alphonse Maddin’s situation. If concurrence in Hobby Lobby or his dis- and he is fired. He is fired for aban- Judge Gorsuch had answered honestly, sent in TransAm Trucking, Judge doning his cargo. Now, there is a law to he would have said that he would have Gorsuch wears that philosophy on his protect people in Maddin’s situation. done exactly, exactly what the driver sleeve. It only underscores a disturbing So he files a case. When it gets to the did. Everyone would. Judge Gorsuch pattern: siding with corporate interests Tenth Circuit, a three-judge panel just did not want to admit it. That is over average Americans. agrees with him, with Maddin. They because there is no good answer. That philosophy was on full display find that the trucking company If Judge Gorsuch said that he would in the dissent that Judge Gorsuch shouldn’t have fired Mr. Maddin, but do the very same thing that Mr. wrote in TransAm Trucking. It seems one judge dissented—Judge Neil Maddin did, that would make his dis- clear to me that Judge Gorsuch ap- Gorsuch. sent look pretty bad. But if he had said proached this case with a specific out- So during my question, I asked Judge ‘‘I would have done what the company come in mind, which was siding with a Gorsuch a very simple question: What told me to do,’’ that would be an ab- company over a worker. And in order he would have done if he had been the surd answer. That would make you to just justify that outcome in his dis- truck driver; if he had been driving question the man’s judgment. No one sent, Judge Gorsuch twisted himself that truck. I asked: Which would you would believe it. So, instead, Judge into a pretzel. have chosen? What would you have Gorsuch said: I don’t know what I You may have heard this story, but I done? And here is Judge Gorsuch’s re- would have done. But of course he did. want to lay it out as efficiently as pos- sponse: ‘‘Oh, Senator, I don’t know He just was not being honest. Judge sible because I think it reveals a great what I would have done if I were in his Gorsuch approached Mr. Maddin’s case deal about Judge Gorsuch’s philosophy, shoes.’’ with an outcome in mind, siding with and it helps to explain exactly why I Now, is there anyone here who would the corporation, and the dissent that am voting against him. In this case, not have done what that driver did? I he wrote makes that perfectly clear. trucker Alphonse Maddin is driving a don’t think so. Of course, you would When I joined the Senate back in rig on the interstate through Illinois. unhitch the trailer and find someplace 2009, I arrived here in June, a little He is pulling a long trailer that is fully warm as quickly as possible—of course. later than the rest of my class. Just a loaded. He makes a stop. He takes a But Judge Gorsuch said he didn’t know few days later, my fifth day in office, break. Then, at 11 p.m., he is about to what he would have done? Is that pos- Judge Sonia Sotomayor appeared be- pull back onto the interstate, but dis- sible? fore the Judiciary Committee for her

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00119 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.276 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2376 CONGRESSIONAL RECORD — SENATE April 5, 2017 first day of her confirmation hearings make it impossible for people to get yer who likely has the right disposition for the Supreme Court. I have been into the courts. to serve on our Nation’s highest Court, thinking a lot about Justice But the most egregious of all 5-to-4 but that is not the end of the analysis Sotomayor’s hearings because the con- decisions was Citizens United—another that I or any of us are required to con- cern I expressed about the direction of 5-to-4 decision that paved the way for duct. I am concerned about Judge the Court back then is just as relevant individuals and outside groups to spend Gorsuch’s record of putting corporate as today. Back then, almost 8 years unlimited sums of money in our elec- interests before the public interests. ago, I voiced concern about it becom- tions. His past decisions demonstrate a re- ing more difficult for Americans seek- In each one of those 5-to-4 decisions sistance on his part to put victims’ and ing a level playing field to defend their Justice Scalia sided with the majority. employees’ needs above those of large rights and get their day in court, from So now this body considers replacing corporations. He has regularly sided bringing a discrimination claim to pro- him with Judge Gorsuch. I think it is with employers over workers, corpora- tecting their right to vote. important to understand the extent to tion’s rights over the rights of employ- Back then, I said: ‘‘I am wary of judi- which he shares Justice Scalia’s views. ees to make personal healthcare deci- cial activism and I believe in judicial Judge Gorsuch’s record demonstrates sions. While he admirably claims to restraint. Yet looking at recent deci- that he is, in President Trump’s words, rest his decisions on the law rather sions on voting rights, campaign fi- a judge very much in the mold of Jus- than his political views, his consistent nance reform, and . . . other topics, tice Scalia. support for the powerful over the pow- . . . there are ominous signs that judi- During his time on the Tenth Circuit, erless doesn’t seem coincidental. cial activism is on the rise.’’ Judge Gorsuch has consistently ruled The Roberts Court, in my mind, has That was my first opening state- in favor of powerful interests. He has swung dramatically in favor of the ment, the first opening statement that sided with corporations over workers, rights of corporations and special in- I ever delivered at the first confirma- corporations over consumers, and cor- terests over those of individual Ameri- tion hearing that I ever attended. But porations over women’s health. cans. I would have supported a main- in the years that followed, my concerns A study published in the Minnesota stream nominee, but the risk that have proved to be justified in one 5-to- Law Review found that the Roberts Judge Gorsuch will inject his political 4 decision after another. We have seen Court is the most pro-corporate Su- judgment over a process that already the Roberts Court go out of the way to preme Court since World War II. If the too often favors the rights of corpora- answer questions not before it, to over- Senate confirms him, Judge Gorsuch tions over individuals is too great a turn precedents, to strike down laws guarantees more of the same from the risk for him to earn my support. That enacted by Congress, and to do all of Roberts Court, and I do not believe was the statement I released upon this at great cost to consumers and to that is a Court that our country can making my decision. I wanted to begin workers and to small businesses and to continue to afford. my remarks with it. middle-class Americans. So I oppose Judge Gorsuch’s nomina- I want to talk a little bit about the In decisions such as Shelby County, tion. I urge my colleagues to take a elements inherent in my decision to the Court gutted one of our landmark close look at his record of siding with vote against Judge Gorsuch because I civil rights laws, 5 to 4. During the oral powerful corporate interests over aver- don’t take that decision lightly. I have argument, Justice Scalia suggested age Americans, to consider carefully said throughout the beginning of Presi- that when the Voting Rights Act had how he stands to impact the Court, and dent Trump’s tenure that I do believe last been passed 97 to 0 in the Senate, to reject his nomination. we owe some degree of deference to a the Senate had done it because of the I suggest the absence of a quorum. President in making choices as to who name of the Voting Rights Act. How The PRESIDING OFFICER (Mr. KEN- will serve him in his administration, could you vote against the Voting NEDY). The clerk will call the roll. and I think that likely applies to the Rights Act? What a great name. He was The assistant bill clerk proceeded to question of whom a President chooses showing contempt for this body. What call the roll. for the Supreme Court as well. I think is more judicially active than over- Mr. MURPHY. Mr. President, I ask I voted that way. I certainly voted turning a law voted on unanimously in unanimous consent that the order for against many of President Trump’s the Senate because the Senate just the quorum call be rescinded. nominees, but I voted for many of the liked the name? The PRESIDING OFFICER. Without nominees with whom I had very deep Of course what that did was get rid of objection, it is so ordered. disagreements with over policy as well. preclearance. What is preclearance? Mr. MURPHY. Thank you, Mr. Presi- So it is not a question of whether Preclearance said that those States dent. Judge Gorsuch would be my choice; it that had a history of suppressing the Mr. President, confirming a Supreme is a question of whether I think he is votes of minorities had to preclear any Court Justice is one of the if not the going to be in the mainstream on the new voting law with the Justice De- most important responsibilities we Supreme Court or whether I think he is partment. have as Senators. It is a vote we cast going to be an outlier and bring poten- These were States that had a history knowing full well that the tenure and tially radical views into the court- of suppressing the votes of racial mi- the influence of the nominee who is be- room. norities. Well, that gets overturned. fore us will likely be greater and much But it is kind of silly for us to pre- Boom. States like North Carolina, more long-lasting than our own in the tend this debate is happening in a vac- Texas, start passing new laws—voter Senate. uum. I am making my mind up on ID laws. The second section of the Vot- After meeting with Judge Gorsuch Judge Gorsuch, as I will try to outline ing Rights Act still stayed, so you and reviewing hours of his testimony this evening, based upon my review of could appeal to a Federal court. But it before the Judiciary Committee, I have his record and my belief about who he takes a while to work its way through. decided to oppose his nomination, and I will be as a Justice. So finally, in early 2016, a circuit come to the floor this evening to talk We would all be lying if we said as court, the Fourth Circuit I believe, about the reasons why. Democrats that we don’t remember ruled that North Carolina had targeted I am deeply concerned about the what happened on the floor of the Sen- African Americans with almost sur- politicization of the Supreme Court ate all throughout 2016. Merrick Gar- gical precision to suppress their votes. and its recent capture by corporate and land should be on the Supreme Court That is why you have preclearance. special interests. I am convinced that today, or if not Merrick Garland, some- That is why you want preclearance. Judge Gorsuch would exacerbate that one else who was nominated by Presi- But in a 5-to-4 vote, preclearance was slide and continue the activist bent of dent Barack Obama. The Supreme struck down. That is one 5-to-4 case. the existing Court, and for that reason Court vacancy occurred with nearly 12 Concepcion, a 5-to-4 decision, allows I won’t be supporting him in the vote months left in his term—25 percent of a corporations to force consumers into tomorrow. term that he was elected to by the peo- mandatory arbitration. There are a There is no doubt that Neil Gorsuch ple of the United States. The Constitu- whole host of 5-to-4 decisions that is a well trained, very intelligent law- tion doesn’t allow for 3-year terms. It

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00120 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.278 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2377 doesn’t say the President becomes ille- in the House—all vanish. Merrick Gar- existing society but to make a new one, to gitimate once he hits the final 12 land is still here, and it would be silly put in place new principles that the prior po- months. The Framers of our Constitu- for us to try to pretend he isn’t. litical community had not sufficiently rec- tion were hopeful that the President One of the reasons I am so worried ognized. would be President for all 4 years. That about Judge Gorsuch is because of his Senator KLOBUCHAR asked Judge last year was robbed not just from enthusiasm for a brand of judicial in- Gorsuch at his hearing if, because the President Obama but from the Amer- terpretation called originalism. It Constitution only uses the word ‘‘he’’ ican people by Republicans in the Sen- doesn’t sound that radical, right, or ‘‘his,’’ it meant that a woman could ate when they treated Judge Garland originalism? The idea is that one inter- not be President. Well, the Constitu- with such disrespect. prets the Constitution as the Founding tion doesn’t specifically speak to this It would have been one thing to sim- Fathers intended it to be; one doesn’t question, but if you were an ply vote against him because you place it in the context of today. Simply originalist, I can imagine how many of didn’t want to let the President of an think to yourself, what would those those Founding Fathers would have an- swered that question. Why? Because opposing party fill that seat, but to not White men who wrote those words— they didn’t believe that women de- even give him a hearing, to not give what would they think about the case served the right to vote, so why on him a vote, to not even take meetings before us? What did they mean back in Earth would they believe that a woman with him, which was the decision of the late 1700s? On its face, it is an ab- should be President? At the time, many Republican colleagues, that was surd way to think about judging cases Blacks were considered to be sub- a show of disrespect to Judge Garland because so much of what is before a human. They were granted three-fifths that I don’t think any of us could have Justice had no relevance and did not status in the Constitution. They were imagined. It was a show of disrespect exist back in the 1780s, so questions slaves. To read a document only to this Chamber, to the traditions of about what these men thought about through the lens of a group of White this body that those of us who may various questions regarding technology males who did not believe that a have supported Judge Garland remem- or civil rights are irrelevant because woman should be allowed to vote, who ber. That bad taste still sits in our the Framers of the Constitution simply did not believe that Blacks were mouth. weren’t thinking about the same human beings and on equal footing So I am here to state that my vote things we are thinking about today. with the rest of us, is to freeze this against Judge Gorsuch is not payback One of our most famous jurists un- document in a time and ask us to, con- for the way in which Merrick Garland derstood this right from the outset. sequently, freeze ourselves in that time was treated, but I remember what hap- Justice John Marshall wrote in as well. If you do not allow the docu- pened. McCulloch v. Maryland: ‘‘We must ment to move, then you do not allow To the extent that my Republican never forget that it is a Constitution colleagues are suggesting that we the rest of us to move either. we are expounding, intended to endure Originalism is a fraud, and what it should vote for Judge Gorsuch or at for ages to come and consequently to least vote for cloture tomorrow as a has become is a mask for politics. be adapted to the various crises of Now, what do I mean by that? means of upholding the traditions of human affairs.’’ When you insist on interpreting the the Senate—spare me. Spare me. There Even those who were judging the Constitution based only on the ways in isn’t a lot of interest on this side of the Constitution at its outset understood which the writers of that document aisle in upholding the traditions of the that, as the questions presented to this viewed the world, you have no way to Senate if we are the only ones doing it. country changed, originalism—the idea base decisions in current times that Some people say: Well, if you voted that you only look to the thoughts and are based on any real text or set of his- for cloture on Gorsuch tomorrow and words and deeds of the Founding Fa- torical facts because, of course, the let it go to a final vote, then maybe thers—probably wouldn’t be an effi- Founding Fathers had given no Republicans would keep the rules as is. cient way to decide cases. thought to many of the most impor- That is belied by the facts. Last year, Justice Brennan gave a wonderful tant questions that are presented to us the Republican majority made it pret- speech at Georgetown in 1985 that is today—for instance, questions about ty clear that they were willing to worth reading tonight. Justice Bren- what rights individuals have with re- break all tradition, all precedent, and nan said: spect to government surveillance over all comity in the Senate in order to get We current Justices read the Constitution their cell phones, which is a question their person on the Supreme Court. in the only way that we can: as Twentieth that the Founding Fathers—the Fram- That wasn’t just a 2016 issue; that is Century Americans. We look to the history ers of the Constitution—could never the new normal for Republicans in the of the time of framing and to the intervening have considered. It allows you to, es- Senate. So whenever Democrats raised history of interpretation. But the ultimate sentially, make it up for yourself be- an objection to a nominee to the Su- question must be, what do the words of the cause there is no way that you can find preme Court, the rules were going to text mean in our time? For the genius of the Constitution rests not in any static meaning a quote from any of the signers of the change because Republicans made it Constitution as to what they thought clear that their first priority is to get it might have had in a world that is dead and gone, but in the adaptability of its great about these modern questions. You can their people on the Supreme Court and principles to cope with current problems and spin it any way that you need to. their second priority is to think about current needs. Originalism is an invitation to bring and try to preserve the way in which He went on to say: politics onto the Court because any- the Senate has run. body can make up a reason as to why I am not voting against Neil Gorsuch Time works changes, brings into existence new conditions and purposes. Therefore, a the people who wrote the Constitution because I am mad about what hap- principle to be vital must be capable of wider would, ultimately, have decided the pened, but to the extent that I have application than the mischief which gave it way that that jurist wants the decision heard Republicans in the Senate lec- birth. to turn out. ture us about violating the traditions It is a wonderful turn of phrase. It connects with other troubling of the Senate, it makes my blood boil He said: writings of Judge Gorsuch’s. He proud- because I was here in 2016. I saw what ly calls himself an originalist. Histori- This is peculiarly true of constitutions. the Republican majority did to They are not ephemeral enactments, de- cally, if we look at the broad swath of Merrick Garland. signed to meet passing occasions. They are, jurists who have gotten on the Su- Maybe we can sit down after this is to use the words of Chief Justice John Mar- preme Court, it is not a mainstream done and talk about how the Senate shall, ‘‘designed to approach immortality as school of judicial interpretation, but he just doesn’t get into a giant vortex of nearly as human institutions can approach has other radical views as well. devolvement, tit for tat, such that all it.’’ The Chevron deference standard is of the reasons why people run for the He said: named for a 1984 case in which the Su- Senate—the individual prerogatives Interpretation must account for the trans- preme Court held that it should defer that Senators have, the demand to find formative purpose of the text. Our Constitu- to regulatory agencies when they in- consensus in a way that doesn’t exist tion was not intended to preserve a pre- terpret ambiguous laws that are passed

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00121 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.280 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2378 CONGRESSIONAL RECORD — SENATE April 5, 2017 by Congress. We pass ambiguous laws, We have all seen it happen, whether about campaign finance, their com- sometimes on purpose and sometimes it be in the voting rights case, in which plaints about the Affordable Care Act— by accident. But we often do it on pur- the unelected Supreme Court decided rather than to have brought them to pose because we, ultimately, leave it to that racism was not something that we the floor of this body. the regulator to fill in the details—to had to think about any longer due to As the House of Representatives proffer regulations, to work out the de- their vast experience in the South and abandons, for the time being, the re- tails of enforcement. We often do not in dealing with cases of voter suppres- peal and replacement of the Affordable define every single term, in part, be- sion, or in their arbitrary decision that Care Act, their allies continue to push cause we know that there is going to be corruption should be very narrowly de- cases through the court system that the executive branch and people work- fined and that we need not pay atten- would attempt to unwind it. Judge ing for an elected official—the Presi- tion to the slow, creeping corruption Gorsuch has been, in his writings at dent of the United States—who are that happens when donors get access to least, blind to this idea that Conserv- going to carry out that act and, ulti- the political process through donations atives have spent just as much time mately, be responsible to the people. of thousands and tens of thousands and over the past 20 years in trying to push What Judge Gorsuch has suggested is hundreds of thousands and millions of their agenda in court as have Progres- that maybe it is time to overturn the dollars. The Supreme Court is telling sives. Progressives have done that as Chevron deference standard. Maybe we the people of this country and this well. should not give any deference to ad- Congress what corruption is and what Clearly, we have full marriage rights ministrative agencies any longer. it is not. in this country because of court cases Maybe the Supreme Court, on every Those are political decisions that the that Progressive groups push. I am not single law, should do a de novo review Court has made—an activist Court— denying that there is not this trend of its constitutionality and give no def- that now may have among its members line on both sides of the political spec- erence to the executive branch. a Justice who has, effectively, adver- trum, but Judge Gorsuch seems to only First of all, that would be pandemo- tised himself as being willing and eager recognize it in his writings when it nium. It would greatly accelerate the to join that trend line on the Court. comes to the liberals who are pushing number of cases that come before the Individual cases raise concerns as these causes. Supreme Court and the number of well. In Riddle v. Hickenlooper, Judge These are the most important deci- major—potentially life-changing—deci- Gorsuch expressed an openness in pro- sions we make. Many of us may only sions that the unelected Court is mak- viding a higher level of constitutional get to vote on a Supreme Court Justice ing. Why? Because we are always pass- protection to a donor’s right to make once or twice. This is my fifth year in ing statutes here that leave room for political contributions than the Court the Senate, and this is my first vote. interpretation. Again, we do it many currently affords the right to actually My first vote should have come in 2016, times intentionally and sometimes un- vote—donors having more rights than but it is coming now in 2017. I do not intentionally, but it happens every sin- voters have. take it lightly, but there is a reason— gle month here that we pass statutes As for the result of applying strict when you go back to your apartment that leave room for interpretation. scrutiny, which is the term that he is here in Washington—that you are We often do that knowing, as I said, referring to with regard to political do- watching TV commercials that are that the Executive will make some of nations, we do not exactly know what paid for by big corporations and bil- those secondary interpretations. We would happen, but it likely would have lionaires who support Judge Gorsuch’s are comfortable with that because, if the consequence of making it almost nomination. his interpretation goes wrong, then impossible to regulate campaign fi- He says that he is going to play it that Executive is never more than nance. Ninety-three percent of Ameri- straight. He says that he is not going about 31⁄2 years from an election. cans, in a recent poll, think that gov- to be affected by his political agenda. I The executive branch is responsible ernment should be working to limit the hope that he is right, but the folks who to the people. The courts are not. impact that big donors have on politics are fronting the money for these ads do These are lifetime appointments that today. Yet Judge Gorsuch has sug- not believe him. They think they know we make. If every single statute that gested that, as a Supreme Court jurist, how he is going to rule. Believe me. we pass is interpreted from the founda- he may move the law in the opposite They would not be putting up all of tion by the Supreme Court and if they direction, robbing from both of us—Re- this money on TV if they did not think get it wrong, there is no way to get rid publicans and Democrats—the ability that Judge Gorsuch was going to be a of them. There is no way to roll that to do what 93 percent of Americans friend to the big companies, to the bil- interpretation back. In fact, that is one want us to do, which is to restrict the lionaire donors who want more and of the reasons for the Chevron def- ability of a handful of billionaires to more protection through the court sys- erence—the reluctance of the Court to affect the political process. tem. make itself an active political player In the Hobby Lobby decision, yet Donald Trump was right about some- in the process of interpreting statutes. again, Judge Gorsuch suggests that thing when he ran for President. He So it is radical that Judge Gorsuch is corporations, in this case, have more was not right that elections are rigged, suggesting that, if he were put on the rights under the Constitution than do but he was right that, in general, the Supreme Court, he would overturn that the individuals who work for them— system—our economic state of affairs— 1984 case. Justice Scalia was one of the that the religious freedom rights of the does seem to be pretty rigged against primary defenders of Chevron for that corporation trump the religious free- regular people. Economic mobility, very reason, in that he saw that the le- dom rights of employees. Once again, it which is how we define ourselves as a gitimacy of the Court—indeed, the le- ruled that those with power—big do- country, is further away from the peo- gitimacy of the entire judicial sys- nors or corporations—have more rights ple whom I represent in Connecticut tem—would be put in jeopardy if it in- than those with less power—ordinary than ever before, and the statistics serted itself as the primary arbiter of voters, employees of these big compa- bear that out. ambiguous statutes, of statutes that nies. Your ability to move from poverty to needed interpretation. Years ago, Judge Gorsuch wrote in a prosperity is less today than it has Originalism is an invitation to take complaint, according to him, that lib- been at any point in our lifetimes. It your politics onto the Court. The evis- erals were using the Court to try to does feel like the powerful and the rich ceration of the Chevron deference push their political agenda rather than have recovered very nicely from this would, inherently, make the Court a to bring it here to the Congress. The recession and that nobody else has. It political body. If you combine the two reality is that, over the course of the feels like they have a voice here in together, you will start to see a Justice Roberts Court, the exact opposite has Washington that no one else has either. who will likely continue this trend line happened. It has been Conservatives If you are President Trump, having of its being an activist Court that who have brought their complaints to run on this promise to unrig the sys- makes political decisions in substitute the court system—their complaints tem, boy, this doesn’t seem like the of the Congress. about voting rights, their complaints person you should be sending to the

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00122 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.282 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2379 bench, somebody who has openly adver- that break with tradition, by changing pointed and confirmed by Republicans tised his enthusiasm for voting with the rules of the Senate permanently will have less sympathy for, as he put billionaires, with corporations, with with respect to Supreme Court Jus- it, ‘‘liberals pushing constitutional liti- folks who have lots of political power tices—I know they can say that Demo- gation.’’ Clearly, judges do not make already. crats did it a few years ago. That is decisions divorced from their personal The TransAm case, which has been true. But the Supreme Court is a dif- and philosophical leanings. However talked about enough on the floor, is a ferent animal entirely, and the deci- often or however loudly they might unique one. It is the case of a trucker sion is one I hope my Republican col- protest, conservatives understand that who was being potentially left to die by leagues will rethink. their arguments about the narrow role his employer on the side of the road, Mr. President, I yield the floor. of judges—their claims that Justices who left his truck to save his life and The PRESIDING OFFICER. The Sen- are there only to modestly apply the potentially the lives of others on the ator from Hawaii. law and adhere to the Constitution— road, had he chosen instead to operate Ms. HIRONO. Mr. President, when are bunk. And Judge Gorsuch must it. Judge Gorsuch ruled with his em- Senate Republicans executed their un- know this too. ployer, effectively suggesting this man precedented block of President Nowhere is this brand of conservative should have risked his life or the lives Obama’s nominee Merrick Garland, the judicial activism clearer than in the of others to comply with the strict let- well-credentialed, well-respected, mod- actions of the Roberts Court to reach ter of the law. erate chief judge of the DC Circuit, into our elections to tilt the political Judge Gorsuch was asked in the Judi- they knew what they were doing. They landscape—with a significant impact ciary Committee what he would have were willing to set aside the history on whose votes are heard in our polit- done: What would you have done if you and practice of the Senate to make ical process and who is able to take had two options—sit in that truck and sure no nominee of President Obama’s part in our elections. face death or put it back on the road would fill the vacancy created by Jus- Based on his writings, Judge Gorsuch and potentially kill others? What tice Scalia’s death. clearly understands the relationship would you have done? Judge Gorsuch As fate would have it, a Republican between politics and the courts. I am said that he hadn’t thought about it. won the Presidency and then, the ma- convinced that adding Judge Gorsuch I don’t want my Supreme Court Jus- jority leader’s path was clear. This is to the Roberts Court will only continue tices to be political. I don’t want them exactly what happened: President the Court’s intervention into politics. to be us. It really is our job to think Trump selected Neil Gorsuch from a The actions of the Roberts Court are about, in a real, tangible, grassroots list put together for him by the ultra- clear. This Court has issued a series of way, the effect of our laws on their conservative Heritage Foundation and decisions that have made it easier for lives. But I don’t want a Justice who Federalist Society. These organiza- conservative organizations to spend doesn’t even contemplate the answer to tions selected Judge Gorsuch because unlimited and unregulated dark money that question, the impact of the law on they want to preserve the conservative on elections, and that may have made regular people. I don’t want a Justice 5-to-4 majority of the Roberts Court. it harder for people to vote, harder for who views the law only through the This majority has done terrible dam- people to participate and have those eyes of a group of White men who lived age to many laws Congress has passed voices heard in the political process. in a fundamentally different world. I to protect ordinary Americans, and has These decisions have changed who is don’t want a Justice who isn’t thinking made it more difficult for us to pass able to participate in the democratic about how the law applies to people new laws. My colleagues and I have process, who gets elected, and, in turn, who need a statute’s protection, rather shined a spotlight on these rightwing who gets nominated to the Supreme than thinking about those who, frank- organizations and the $10 million cam- Court. ly, don’t need the protection of statute paign they have run on Judge Justice Felix Frankfurter’s famous because they have been handed a pret- Gorsuch’s behalf because they believe admonition that ‘‘Courts ought not to ty good lot in life from the start. his view of the law matches theirs. And enter this political thicket’’ captures I am going to oppose cloture tomor- therein lies our concern. the challenges for courts treading into row, and if we eventually get to a vote, These organizations have spent so politics. Of course there are times I will oppose Judge Gorsuch on final much money and worked so hard on when the courts must do so—to ensure passage. Judge Gorsuch’s behalf because they one person, one vote, for example. But My final comment is this: When that could trust, perhaps not 100 percent of courts must also be careful when wad- moment comes, I do hope that our col- the time, but enough of the time, that ing into politics because the legit- leagues will think twice about chang- Judge Gorsuch would decide cases in imacy of the court is itself put at risk. ing the rules of the Senate. They had ways they would agree with and sup- The most memorable example, of already broken with precedent once in port. course, came when the Court effec- 2016 in a way that I think is Judge Gorsuch is an Ivy League edu- tively decided the 2000 Presidential unforgiveable. To do it twice in a 24- cated lawyer with 10 years on the Fed- election in Bush v. Gore. month period puts this place on a eral bench. He is not naive. Even if he In the Citizens United and Shelby downward spiral that I am not sure we refused to acknowledge the fact that County decisions, we have seen the tre- can recover from. If we just want to be these groups are supporting him, Judge mendous damage the Court can do to the House of Representatives, let’s just Gorsuch knows as well as we all do democracy when it tilts the electoral do it. But there is another way to go, that politics have a real impact on the process so heavily against ordinary to select a nominee who could truly get kinds of nominees selected to serve on Americans. bipartisan support. the Supreme Court. In the 2010 Citizens United decision, As my colleague TIM KAINE is fond of We know he understands this because the Roberts Court struck down bipar- saying, there is only one appointment he said so in his 2005 National Review tisan laws limiting campaign contribu- by the President of the United States Online article, which was entitled tions that went back more than a cen- that needs 60 votes. There is only one ‘‘Liberals’N’Lawsuits.’’ In that article, tury. This decision opened an unre- person the President picks who needs he wrote that because Republicans had strained flow of money and potential to get more than 60. That is the Justice won elections for the Presidency and corruption that has dominated our pol- of the Supreme Court because it is per- for control of the Senate, the Repub- itics and drowned out the voices of or- manent, because it is important, be- licans were in charge of the judicial ap- dinary Americans ever since. cause it lasts longer than we do. There pointment process. As a result, he said, The Court’s decision in this case was is probably good reason for that. ‘‘the level of sympathy liberals pushing not an accident. Chief Justice Roberts Precedent and comity were broken in constitutional litigation can expect in engineered the decision in that case by 2016. I will never, ever forget the dis- the courts may wither over time, leav- steering it away from the narrow ques- respect shown to Judge Garland and to ing the Left truly out in the cold.’’ tion before the Court about how to everyone in this body, but to double This article demonstrates that Judge apply a particular law and into a broad down on that break with precedent, on Gorsuch understands that judges ap- constitutional question. His efforts

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00123 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.284 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2380 CONGRESSIONAL RECORD — SENATE April 5, 2017 demonstrate that the Supreme Court majority to Justice Kennedy, who was tice of the Supreme Court when he led has broad power and latitude to push known to be very skeptical of cam- a 5-to-4 majority to gut section 5 of the and shape the law. paign finance laws and believed that Voting Rights Act. This kind of conservative judicial ac- limits on campaign spending violate The preclearance provisions of sec- tivism directly contradicts what Jus- free speech. By doing so, Chief Justice tion 5 mandated that any changes to tice Roberts famously said during his Roberts ensured that the Citizens voting laws in States with a long his- confirmation hearing. He said the job United decision would be a broad one, tory of discrimination have to be ap- of a Justice is to simply call balls and and it was. proved in advance—or precleared—by strikes. The way the Court chose to reach out the Justice Department or by the DC Jeffrey Toobin, in a 2012 article in and change the law was wholly unnec- district court. These provisions, passed the New Yorker entitled, ‘‘Money Un- essary to decide the case at hand. And a century after the conclusion of the limited: How Chief Justice John Rob- it certainly was not judicial restraint; Civil War, for the first time effectively erts orchestrated the Citizens United it was judicial activism. The Court in guaranteed the rights protected by the decision,’’ and in his recent book, ‘‘The Citizens United reached out to over- 14th and 15th Amendments in many Oath,’’ recounts very clearly how Chief turn precedent and upend laws dating parts of the country. Section 5 changed Justice Roberts engineered this cam- back more than a century to find new the landscape of our democracy and paign spending decision. rights for corporations to funnel untold opened the door for millions of people The question originally presented to millions into our political system. to exercise their right to vote. the Supreme Court in Citizens United, This decision also severely limited These provisions of the Voting according to Toobin’s account, was a the ways in which Congress could take Rights Act were reauthorized nearly narrow one. It involved whether one of action to continue to pursue the aims unanimously by Congress in 2006. Be- the provisions of the bipartisan of campaign finance laws to limit po- fore reauthorizing the Voting Rights McCain-Feingold campaign finance law litical corruption. Act, the Senate Judiciary Committee applied to a documentary criticizing a In his article, Mr. Toobin said: alone held nine hearings on it. The candidate and not just to television [Citizens United] reflects the aggressive thousands of pages of material the Sen- commercials. In fact, Ted Olson, the conservative judicial activism of the Roberts ate reviewed, together with the record well-known conservative lawyer rep- Court. It was once liberals who are associ- developed in a dozen hearings in the resenting Citizens United, the organi- ated with using the courts to overturn the House, clearly established why it was zation that wanted to run the docu- work of the democratically elected branches so important to maintain preclearance mentary, made a narrow argument of government, but the current Court has in order to protect the right to vote in that the McCain-Feingold law was not matched contempt for Congress with a dis- jurisdictions with a long history of vot- dain for many of the Court’s own precedents. meant to apply to that kind of docu- When the Court announced its final ruling ing discrimination. mentary. This was an argument based on Citizens United, on January 21, 2010, the Yet, in Shelby County, the Roberts not on the Constitution, but on decid- vote was five to four and the majority opin- Court ignored this evidence and the ing the case before the Court in the ion was written by Anthony Kennedy. Above Court’s long precedent. The Court narrowest possible way. Such a deci- all, though, the result represented a triumph made its own determination about the sion would have been restrained. for Chief Justice Roberts. Even without writ- value of the extensive evidence re- It became clear during oral argu- ing the opinion, Roberts, more than anyone, viewed by Congress and struck down ments that the conservatives on the shaped what the Court did. these core provisions. The Court re- Court had the opportunity not just to But the Roberts Court was not done fused to defer to the extensive findings apply the law, but to change it en- with its activism to radically change and determination of Congress even tirely. Chief Justice Roberts and the the landscape of our elections. In an- though Congress is expressly charged other conservative Justices on the other narrow 5-to-4 decision in Shelby by the 14th and 15th Amendments to Court began to do this by aggressively County in 2013, the Court substituted enforce the guarantees of those Amend- questioning the government’s lawyer its conclusions for that of Congress and ments—the guarantee of the right to on issues not then directly before the gutted core protections of the Voting vote. The Court did what John Roberts Court. As Toobin describes, ‘‘Through Rights Act—protections which were es- fought to do years before and weakened artful questioning, Alito, Kennedy, and sential for the right to vote for mil- the Voting Rights Act. So much for ju- Roberts had turned a fairly obscure lions of Americans. Again, this was not dicial restraint. So much for just call- case about campaign-finance reform a decision the Court needed to or ing balls and strikes. into a battle over governmental cen- should have reached. And again, it was A Justice and a Court devoted to ju- sorship.’’ a decision engineered by Chief Justice dicial restraint, with an understanding Now that it was clear to Chief Jus- John Roberts and the conservative ma- of the separation of powers, never tice Roberts that there was a majority jority on the Supreme Court. would have ignored Congress acting at on the court for making a broader con- Back in 1982, Chief Justice Roberts— the height of its constitutional powers stitutional decision, he ordered that then a special assistant to the Attor- and its factfinding capacity. Yet Chief the case be reargued, rather than sim- ney General—was the point person for Justice Roberts and the narrow con- ply deciding the narrow question ar- the Reagan administration’s opposition servative majority on the Court chose gued by both Olsen and the govern- to strengthening the Voting Rights to act—to reach out and to gut one of ment’s attorney. Chief Justice Roberts Act. At that time, Congress acted to the core protections of the funda- wanted the Court to take head-on a fix a hole in the Voting Rights Act mental right to vote. question that was not in fact before it that the Supreme Court had opened in We now know that Congress got it and which the Court had decided the a 1980 decision. John Roberts was op- right and the Supreme Court got it opposite way only 6 years before. When posed to these efforts to make clear wrong in its judgment about the con- the Roberts Court decided Citizens that election practices or procedures tinuing need for section 5 of the Voting United the following year, after reargu- that result in discrimination, not only Rights Act. Immediately after the ment, it did so on the broadest possible those with the intent to discriminate, Shelby County decision, numerous ground—unconstitutional grounds— violate the Voting Rights Act. States previously covered by section 5 and found that corporations, like peo- In 1982, Congress successfully passed immediately passed onerous voter ID ple, have First Amendment rights. It their fix over the objections of John laws and other barriers that affected found that these rights could be vio- Roberts and the Reagan administra- the right to vote of millions of people. lated by limits on campaign contribu- tion. If you look at John Roberts’ Some of these laws were even enacted tions. memos and articles from that period of with discriminatory intent, not just Again, this outcome did not happen time—in which he was a strong advo- discriminatory effect—in other words, by accident; Chief Justice Roberts en- cate within the administration for the they were blatantly meant to discrimi- gineered the result. According to position it took—his view of the Voting nate in voting. Toobin’s account, Chief Justice Rob- Rights Act was clear. It was a view he These newly raised barriers had a erts chose to assign the opinion for the would apply years later as Chief Jus- clear impact in last year’s elections.

VerDate Sep 11 2014 05:38 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00124 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.285 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE April 5, 2017 CONGRESSIONAL RECORD — SENATE S2381 For the first time in two generations, Americans to have their voices heard fettered dark money and against indi- thanks to the actions of the Roberts in our election process and their votes viduals, the Roberts Court has im- Court, we risk unraveling the progress counted at the ballot box. Since Citi- pacted the composition of who is in my friend JOHN LEWIS fought for along- zens United, the floodgates have Congress. The Court has made it even side so many others during the civil opened to unfettered corporate money harder for Congress to take meaningful rights movement. in our elections. Since Shelby County, action to, say, pass laws to protect During his confirmation hearing, I 13 States have enacted laws placing workers’ safety or the access of stu- asked Judge Gorsuch about the Shelby limitations on voting. Many of these dents with special needs to an edu- County decision, since he often ex- are in States that would have been pre- cation. In turn, these decisions have plained the constraints on his approach vented from doing so in the first place had a real-world impact by changing to judicial decision making in terms of before the Court gutted section 5 of the who gets to participate in the political the separation of powers. He said sev- Voting Rights Act. After Shelby Coun- process and therefore who gets elected eral times that judges make terrible ty, these States could pass such laws, and who has input on the kinds of laws legislators, that courts lack the staff, and they did, disenfranchising tens of that are passed—and, of course, who capacity, and training to do the kind of thousands of voters in the process. gets nominated to the U.S. Supreme factfinding that is an essential part of My Democratic colleagues and I Court. the legislative process. Yet, when I asked Judge Gorsuch many questions The actions of the Roberts Court in asked him whether the Court’s decision to try to understand his pattern of nar- Citizens United and Shelby County in Shelby County raised the kinds of rowly interpreting laws meant to pro- make clear the stakes of the Gorsuch concerns he had noted about the limits tect individual rights or worker safety nomination. They make clear what the of judges as policymakers and legisla- in ways at odds with the law’s purpose. Senate Republicans had in mind in tors, he declined to answer. For example, the narrow interpretation their unprecedented and arrogant re- But this is about more than Judge Judge Gorsuch took on the Individuals fusal to consider President Obama’s Gorsuch’s refusal to answer. It is about with Disabilities Education Act, IDEA, nomination of Merrick Garland to the more than the narrow view he ex- would have left Luke Perkins and Supreme Court. They wanted, instead, pressed of the role of a judge or, par- thousands of special needs children a Justice like Judge Gorsuch who ticularly, a Justice—a narrow view like Luke without a chance to make would continue the rightward march of that is not a reflection of the real educational progress. His interpreta- the 5-to-4 conservative majority on the world. Both the process and the out- tion was so at odds with the purpose of Roberts Court. And the United States come in Shelby County and in Citizens the IDEA law that the Supreme Court Senate should not allow this brazen United raised exactly the kinds of con- unanimously rejected and criticized gambit to succeed. cerns that make it so important for the Judge Gorsuch’s narrow standard in a I urge my colleagues to oppose this Senate to understand Judge Gorsuch’s case they decided just a few weeks ago. nomination. judicial philosophy before putting him Time and again, Judge Gorsuch I yield the floor. on the Supreme Court. Judge Gorsuch threw up his hands and told us that if would become part of a newly empow- we disagreed with this narrow reading f ered 5-to-4 conservative majority on of the relevant law, that Congress the Roberts Court, which has been any- should do better. In his view, the prob- RECESS UNTIL 10 A.M. TOMORROW thing but restrained in moving the law lem was not the Court—which he The PRESIDING OFFICER. Under for the benefit of corporations and seemed to cast as an innocent by- the previous order, the Senate stands against individual rights. stander—but, rather, the way Congress in recess until 10 a.m. tomorrow. Taken together, these two decisions, had written the law. Thereupon, the Senate, at 11:28 p.m., Citizens United and Shelby County, By tilting the political playing field recessed until Thursday, April 6, 2017, have made it harder for millions of so heavily toward corporations and un- at 10 a.m.

VerDate Sep 11 2014 08:12 Apr 07, 2017 Jkt 079060 PO 00000 Frm 00125 Fmt 0624 Sfmt 0634 E:\RECORD17\APRIL\S04AP7.PT2 S04AP7 bjneal on DSK30MX082PROD with CONG-REC-ONLINE Tuesday, April 4, 2017 Daily Digest Senate National Park Week: Senate agreed to S. Res. Chamber Action 117, designating the week of April 15, 2017, Routine Proceedings, pages S2197–S2381 through April 23, 2017, as ‘‘National Park Week’’. Measures Introduced: Fifty-five bills and eleven Page S2353 resolutions were introduced, as follows: S. 807–861, Condemning Hate Crime: Senate agreed to S. S. Res. 109–118, and S. Con. Res. 12. Res. 118, condemning hate crime and any other Pages S2214–15, S2362–63 form of racism, religious or ethnic bias, discrimina- Measures Reported: tion, incitement to violence, or animus targeting a minority in the United States. Pages S2371–72 Reported on Tuesday, April 4: S. 254, to amend the Native American Programs Gorsuch Nomination—Cloture: Senate began con- Act of 1974 to provide flexibility and reauthoriza- sideration of the nomination of Neil M. Gorsuch, of tion to ensure the survival and continuing vitality of Colorado, to be an Associate Justice of the Supreme Native American languages. (S. Rept. No. 115–23) Court of the United States. Pages S2190–S2210, S2222–48, S2257–S2352, S2353–59, S2372–81 Reported on Wednesday, April 5: Prior to the consideration of this nomination, Sen- Special Report entitled ‘‘Report on the Activities ate took the following action: of the Committee on Finance During the 114th Senate agreed to the motion to proceed to Legisla- Congress’’. (S. Rept. No. 115–25) tive Session. Page S2190 S. 102, to direct the Federal Communications By 55 yeas to 44 nays (Vote No. 104), Senate Commission to commence proceedings related to the agreed to the motion to proceed to executive session resiliency of critical communications networks dur- to consider the nomination. Page S2190 ing times of emergency, with an amendment in the A motion was entered to close further debate on nature of a substitute. (S. Rept. No. 115–24) the nomination, and, in accordance with the provi- Page S2362 sions of Rule XXII of the Standing Rules of the Measures Passed: Senate, a vote on cloture will occur on Thursday, April 6, 2017. Page S2210 National Read Aloud Month: Committee on the A unanimous-consent agreement was reached pro- Judiciary was discharged from further consideration viding for further consideration of the nomination at of S. Res. 94, designating March 2017 as ‘‘National approximately 9:30 a.m., on Wednesday, April 5, Read Aloud Month’’, and the resolution was then 2017; that the debate time on the nomination dur- agreed to. Page S2220 ing Wednesday’s session of the Senate be divided as Alaska Purchase 150th Anniversary: Senate follows: following Leader remarks until 11 a.m. be agreed to S. Res. 111, celebrating the 150th anniver- equally divided, that the time from 11 a.m. until 12 sary of the Alaska Purchase. Page S2220 noon be under the control of the Majority; that the Gold Star Wives Day: Senate agreed to S. Res. time from 12 noon until 1 p.m. be under the con- 112, designating April 5, 2017, as ‘‘Gold Star Wives trol of the Minority; and that the debate time until 9 p.m., on Wednesday be divided in one hour alter- Day’’. Page S2220 nating blocks. Pages S2220–21 University of Washington Center on Human A unanimous-consent agreement was reached pro- Development and Disability 50th Anniversary: viding for further consideration of the nomination at Senate agreed to S. Res. 113, recognizing and cele- approximately 10 a.m., on Thursday, April 6, 2017; brating the 50th anniversary of the Center on that the time until the vote on the motion to invoke Human Development and Disability at the Univer- cloture on the nomination be equally divided be- sity of Washington in Seattle, Washington. tween Senators Grassley and Feinstein, or their des- Page S2220 ignees. Page S2372 D393

VerDate Sep 11 2014 07:39 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D04AP7.PT2 D04APPT2 SSpencer on DSK4SPTVN1PROD with DIGEST D394 CONGRESSIONAL RECORD — DAILY DIGEST April 4, 2017 Perdue Nomination—Agreement: A unanimous- cluded a hearing to examine national water hazards consent agreement was reached providing that fol- and vulnerabilities, focusing on improved forecasting lowing Leader remarks on Monday, April 24, 2017, for responses and mitigation, after receiving testi- Senate begin consideration of the nomination of mony from Louis Uccellini, Assistant Administrator, Sonny Perdue, of Georgia, to be Secretary of Agri- Weather Services, National Oceanic and Atmos- culture; that the time until 5:30 p.m. be equally di- pheric Administration, and Director, National vided in the usual form, and that at 5:30 p.m., Sen- Weather Service; Bryan Koon, Florida Division of ate vote on confirmation of the nomination, with no Emergency Management Director, Tallahassee; Anto- intervening action or debate. Page S2344 nio Busalacchi, University Corporation for Atmos- Nomination Confirmed: Senate confirmed the fol- pheric Research, Boulder, Colorado; and Mary lowing nomination: Glackin, The Weather Company, IBM, Washington, By 85 yeas to 14 nays (Vote No. EX. 103), Elaine D.C. C. Duke, of Virginia, to be Deputy Secretary of U.S. STRATEGIC COMMAND Homeland Security. Pages S2180–90, S2255 Committee on Armed Services: Committee concluded a Nominations Received: Senate received the fol- hearing to examine United States Strategic Com- lowing nominations: mand programs, after receiving testimony from Gen- Sigal Mandelker, of New York, to be Under Sec- eral John E. Hyten, USAF, Commander, United retary for Terrorism and Financial Crimes. States Strategic Command, Department of Defense. Heath P. Tarbert, of Maryland, to be an Assistant Secretary of the Treasury. CYBER THREATS TO THE U.S. Routine lists in the Air Force, Army, Marine Committee on Armed Services: Subcommittee on Cyber- Corps, and Navy. Pages S2248–55 security received a closed briefing on cyber threats to Messages From the House: Pages S2214, S2360 the United States from Kate Charlet, Performing the duties of Deputy Assistant Secretary for Cyber Pol- Measures Referred: Pages S2214, S2260 icy, Brigadier General Mary F. O’Brien, USAF, Di- Measures Read the First Time: Pages S2360, S2371 rector of Intelligence, United States Cyber Com- Executive Communications: Pages S2360–61 mand, and Major General Ed Wilson, Deputy Prin- cipal Cyber Advisor, Office of the Secretary, all of Petitions and Memorials: Pages S2361–62 the Department of Defense; Samuel Liles, Director, Executive Reports of Committees: Pages S2214, Cyber Analysis Division, Office of Intelligence and S2362 Analysis, and Neil Jenkins, Director, Enterprise Per- Additional Cosponsors: Pages S2215–16, S2364–65 formance Management Office, National Protection Statements on Introduced Bills/Resolutions: and Programs Directorate, both of the Department of Homeland Security; and Tonya L. Ugoretz, Direc- Page S2216–20, S2365–68 tor, Cyber Threat Intelligence Integration Center, Additional Statements: Pages S2213–14, S2360 Office of the Director of National Intelligence. Authorities for Committees to Meet: Pages S2220, BUSINESS MEETING S2371 Committee on Banking, Housing, and Urban Affairs: Record Votes: Two record votes were taken today. Committee ordered favorably reported the nomina- (Total––104) Pages S2189, S2190 tion of Jay Clayton, of New York, to be a Member Recess: Senate convened at 10 a.m. on Tuesday, of the Securities and Exchange Commission. April 4, 2017, and recessed at 11:28 p.m. on Wednesday, April 5, 2017, until 10 a.m. on Thurs- MULTIMODAL FREIGHT POLICY AND day, April 6, 2017. (For Senate’s program, see the INFRASTRUCTURE remarks of the Acting Majority Leader in today’s Committee on Commerce, Science, and Transportation: Sub- Record on page S2372.) committee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security concluded Committee Meetings a hearing to examine keeping goods moving, focus- ing on continuing to enhance multimodal freight (Committees not listed did not meet) policy and infrastructure, after receiving testimony from Derek J. Leathers, Werner Enterprises, and NATIONAL WATER HAZARDS AND Lance M. Fritz, Union Pacific Corporation, both of VULNERABILITIES Omaha, Nebraska; Michael L. Ducker, FedEx Freight Committee on Appropriations: Subcommittee on Com- Corporation, Memphis, Tennessee; and James merce, Justice, Science, and Related Agencies con- Pelliccio, Port Newark Container Terminal, Newark,

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New Jersey, on behalf of the Coalition for America’s SOUTHWEST BORDER FENCING Gateways and Trade Corridors. Committee on Homeland Security and Governmental Af- CYBERSECURITY THREATS fairs: Committee concluded a hearing to examine Committee on Energy and Natural Resources: Committee fencing along the southwest border, after receiving concluded a hearing to examine efforts to protect testimony from David V. Aguilar, former Acting United States energy delivery systems from cyberse- Commissioner, and Ronald S. Colburn, former Dep- curity threats, after receiving testimony from Patricia uty Chief, Border Patrol, both of Customs and Bor- Hoffman, Acting Assistant Secretary, Office of Elec- der Protection, Department of Homeland Security; tricity Delivery and Energy Reliability, and Andrew and Terence M. Garrett, The University of Texas A. Bochman, Senior Cyber and Energy Strategist, Rio Grande Valley Public Affairs and Security Stud- National and Homeland Security, Idaho National ies Department, Brownsville. Laboratory, both of the Department of Energy; Colo- nel Gent Welsh, Commander, 194th Wing, Wash- FDA USER FEE AGREEMENTS ington Air National Guard, Camp Murray; Gerry Committee on Health, Education, Labor, and Pensions: W. Cauley, North American Electric Reliability Cor- Committee concluded a hearing to examine FDA poration, and Dave McCurdy, American Gas Associa- user fee agreements, focusing on improving medical tion, both of Washington, D.C.; and Duane D. product regulations and innovation for patients, after Highley, Arkansas Electric Cooperative Corporation, receiving testimony from Kay Holcombe, Bio- Littlerock, on behalf of the National Rural Electric technology Innovation Organization, David R. Cooperative Association. Gaugh, Association for Accessible Medicines, Scott THE EU AS A PARTNER AGAINST RUSSIAN Whitaker, AvaMed, and Cynthia A. Bens, Alliance AGGRESSION for Aging Research, all of Washington, D.C. Committee on Foreign Relations: Committee concluded INTELLIGENCE a hearing to examine the European Union as a part- ner against Russian aggression, focusing on sanc- Select Committee on Intelligence: Committee met in tions, security, democratic institutions, and the way closed session to receive a briefing on certain intel- forward, after receiving testimony from David ligence matters from officials of the intelligence O’Sullivan, European Union Delegation to the community. United States of America, and Kurt Volker, Arizona State University McCain Institute for International INTELLIGENCE Leadership, both of Washington, D.C.; and Daniel Select Committee on Intelligence: Committee held closed B. Baer, former Ambassador to the Organization for hearings on intelligence matters, receiving testimony Security and Cooperation in Europe, Denver, Colo- from officials of the intelligence community. rado. Committee recessed subject to the call. h House of Representatives H.R. 702, to amend the Notification and Federal Chamber Action Employee Antidiscrimination and Retaliation Act of Public Bills and Resolutions Introduced: 34 pub- 2002 to strengthen Federal antidiscrimination laws lic bills, H.R. 1868–1901; and 7 resolutions, H. enforced by the Equal Employment Opportunity Con. Res. 43–46; and H. Res. 246–248 were intro- Commission and expand accountability within the duced. Pages H2694–97 Federal Government, and for other purposes (H. Additional Cosponsors: Page H2698 Rept. 115–79). Page H2694 Reports Filed: Reports were filed today as follows: Speaker: Read a letter from the Speaker wherein he H.R. 653, to amend title 5, United States Code, appointed Representative Graves (LA) to act as to protect unpaid interns in the Federal Government Speaker pro tempore for today. Page H2633 from workplace harassment and discrimination, and Recess: The House recessed at 10:45 a.m. and re- for other purposes (H. Rept. 115–78); and convened at 12 noon. Page H2638

VerDate Sep 11 2014 07:39 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00003 Fmt 0627 Sfmt 0627 E:\CR\FM\D04AP7.PT2 D04APPT2 SSpencer on DSK4SPTVN1PROD with DIGEST D396 CONGRESSIONAL RECORD — DAILY DIGEST April 4, 2017 Self-Insurance Protection Act—Rule for Consid- Senate Message: Message received from the Senate eration: The House agreed to H. Res. 241, pro- by the Clerk and subsequently presented to the viding for consideration of the bill (H.R. 1304) to House today appears on page H2641. amend the Employee Retirement Income Security Quorum Calls—Votes: Four yea-and-nay votes and Act of 1974, the Public Health Service Act, and the two recorded votes developed during the proceedings Internal Revenue Code of 1986 to exclude from the of today and appear on pages H2650–51, H2651, definition of health insurance coverage certain med- H2652, H2652–53, H2676–77, and H2677–78. ical stop-loss insurance obtained by certain plan There were no quorum calls. sponsors of group health plans, by a recorded vote of 234 ayes to 184 noes, Roll No. 212, after the pre- Adjournment: The House met at 10 a.m. and ad- vious question was ordered by a yea-and-nay vote of journed at 7:19 p.m. 232 yeas to 188 nays, Roll No. 211. Pages H2647–51 Suspensions: The House agreed to suspend the rules Committee Meetings and pass the following measure: THE NEXT FARM BILL: COMMODITY Weather Research and Forecasting Innovation POLICY PART II Act of 2017: Concur in the Senate amendment to Committee on Agriculture: Subcommittee on General H.R. 353, to improve the National Oceanic and At- Farm Commodities and Risk Management held a mospheric Administration’s weather research through hearing entitled ‘‘The Next Farm Bill: Commodity a focused program of investment on affordable and Policy Part II’’. Testimony was heard from public attainable advances in observational, computing, and witnesses. modeling capabilities to support substantial im- provement in weather forecasting and prediction of THE NEXT FARM BILL: CREDIT PROGRAMS high impact weather events, and to expand commer- Committee on Agriculture: Subcommittee on Com- cial opportunities for the provision of weather data. modity Exchanges, Energy, and Credit held a hear- Pages H2666–67 ing entitled ‘‘The Next Farm Bill: Credit Programs’’. Encouraging Employee Ownership Act of 2017: Testimony was heard from public witnesses. The House passed H.R. 1343, to direct the Securi- EXAMINING FEDERAL SUPPORT FOR JOB ties and Exchange Commission to revise its rules so TRAINING PROGRAMS as to increase the threshold amount for requiring issuers to provide certain disclosures relating to com- Committee on Appropriations: Subcommittee on Labor, pensatory benefit plans, by a yea-and-nay vote of 331 Health and Human Services, Education, and Related yeas to 87 nays, Roll No. 216. Pages H2667–78 Agencies held a hearing entitled ‘‘Examining Federal Rejected the Swalwell (CA) motion to recommit Support for Job Training Programs’’. Testimony was the bill to the Committee on Financial Services with heard from public witnesses. instructions to report the same back to the House ASSESSING PROGRESS AND IDENTIFYING forthwith with an amendment, by a yea-and-nay vote FUTURE OPPORTUNITIES IN DEFENSE of 185 yeas to 228 nays, Roll No. 215. REFORM Pages H2676–77 Pursuant to the Rule, an amendment in the na- Committee on Armed Services: Full Committee held a ture of a substitute consisting of the text of Rules hearing entitled ‘‘Assessing Progress and Identifying Committee Print 115–11 shall be considered as Future Opportunities in Defense Reform’’. Testi- mony was heard from public witnesses. adopted. Page H2667 Withdrawn: MISCELLANEOUS MEASURES Polis amendment (No. 1 printed in H. Rept. Committee on Education and the Workforce: Full Com- 115–75) that was offered and subsequently with- mittee held a markup on H.R. 1808, the ‘‘Improv- drawn that would have required GAO to report to ing Support for Missing and Exploited Children Act Congress one year after date of enactment the impact of 2017’’; and H.R. 1809, the ‘‘Juvenile Justice Re- of the legislation on employee ownership. Page H2675 form Act of 2017’’. H.R. 1808 and H.R. 1809 were H. Res. 240, the rule providing for consideration ordered reported, as amended. of the bill (H.R. 1343) was agreed to by a recorded vote of 238 ayes to 177 noes, Roll No. 214, after LEGISLATIVE MEASURE the previous question was ordered by a yea-and-nay Committee on Energy and Commerce: Subcommittee on vote of 229 yeas to 187 nays, Roll No. 213. Environment held a hearing on a discussion draft of Pages H2641–47, H2652–53 Brownfields Reauthorization. Testimony was heard Senate Referral: S. 89 was held at the desk. from public witnesses.

VerDate Sep 11 2014 07:39 Apr 06, 2017 Jkt 069060 PO 00000 Frm 00004 Fmt 0627 Sfmt 0627 E:\CR\FM\D04AP7.PT2 D04APPT2 SSpencer on DSK4SPTVN1PROD with DIGEST April 4, 2017 CONGRESSIONAL RECORD — DAILY DIGEST D397 CYBERSECURITY IN THE HEALTH CARE plosives; and Chuck Rosenberg, Acting Adminis- SECTOR: STRENGTHENING PUBLIC- trator, Drug Enforcement Administration. PRIVATE PARTNERSHIPS FIRST AMENDMENT PROTECTIONS ON Committee on Energy and Commerce: Subcommittee on PUBLIC COLLEGE AND UNIVERSITY Oversight and Investigations held a hearing entitled CAMPUSES ‘‘Cybersecurity in the Health Care Sector: Strength- ening Public-Private Partnerships’’. Testimony was Committee on the Judiciary: Subcommittee on the Con- heard from public witnesses. stitution and Civil Justice held a hearing entitled ‘‘First Amendment Protections on Public College EXAMINING THE FEDERAL RESERVE’S and University Campuses’’. Testimony was heard MANDATE AND GOVERNANCE from public witnesses. STRUCTURE Committee on Financial Services: Subcommittee on LEGISLATIVE MEASURES Monetary Policy and Trade held a hearing entitled Committee on Natural Resources: Subcommittee on ‘‘Examining the Federal Reserve’s Mandate and Gov- Water, Power and Oceans held a hearing on H.R. ernance Structure’’. Testimony was heard from public 220, to authorize the expansion of the existing Ter- witnesses. ror Lake hydroelectric project, and for other pur- INCREASING THE EFFECTIVENESS OF NON- poses; H.R. 1411, the ‘‘Transparent Summer Floun- NUCLEAR SANCTIONS AGAINST IRAN der Quotas Act’’; and a discussion draft of the ‘‘Bu- reau of Reclamation Pumped Storage Hydropower Committee on Financial Services: Subcommittee on Development Act’’. Testimony was heard from pub- Monetary Policy and Trade; and Subcommittee on lic witnesses. Terrorism and Illicit Finance held a joint hearing en- titled ‘‘Increasing the Effectiveness of Non-Nuclear USE OF CONFIDENTIAL INFORMANTS AT Sanctions Against Iran’’. Testimony was heard from ATF AND DEA public witnesses. Committee on Oversight and Government Reform: Full DEFEATING A SOPHISTICATED AND Committee held a hearing entitled ‘‘Use of Con- DANGEROUS ADVERSARY: ARE THE NEW fidential Informants at ATF and DEA’’. Testimony BORDER SECURITY TASK FORCES THE was heard from Michael E. Horowitz, Inspector Gen- RIGHT APPROACH? eral, Department of Justice; Robert Patterson, Act- Committee on Homeland Security: Subcommittee on ing Principal Deputy Administrator, Drug Enforce- Border and Maritime Security held a hearing entitled ment Administration; and Ronald B. Turk, Associate ‘‘Defeating a Sophisticated and Dangerous Adversary: Deputy Director and Chief Operating Officer, Bu- Are the New Border Security Task Forces the Right reau of Alcohol, Tobacco, Firearms and Explosives. Approach?’’. Testimony was heard from Rebecca REVIEWING FEDERAL IT WORKFORCE Gambler, Director, Homeland Security and Justice CHALLENGES AND POSSIBLE SOLUTIONS Issues, Government Accountability Office; and the following officials from the Department of Home- Committee on Oversight and Government Reform: Sub- land Security: Vice Admiral Karl Schultz, Director, committee on Information Technology held a hear- Joint Task Force East; Paul Beeson, Director, Border ing entitled ‘‘Reviewing Federal IT Workforce Chal- Patrol, Joint Task Force West; and Janice Ayala, Di- lenges and Possible Solutions’’. Testimony was heard rector, Joint Task Force—Investigations, Homeland from Nick Marinos, Assistant Director, Information Security Investigations, Immigration and Customs Technology, Government Accountability Office; and Enforcement. public witnesses. OVERSIGHT OF THE DRUG ENFORCEMENT BUILDING A 21ST CENTURY ADMINISTRATION AND THE BUREAU OF INFRASTRUCTURE FOR AMERICA: ALCOHOL, TOBACCO, FIREARMS, AND ENABLING INNOVATION IN THE EXPLOSIVES NATIONAL AIRSPACE Committee on the Judiciary: Subcommittee on Crime, Committee on Transportation and Infrastructure: Sub- Terrorism, Homeland Security, and Investigations committee on Aviation held a hearing entitled held a hearing entitled ‘‘Oversight of the Drug En- ‘‘Building a 21st Century Infrastructure for America: forcement Administration and the Bureau of Alco- Enabling Innovation in the National Airspace’’. Tes- hol, Tobacco, Firearms, and Explosives’’. Testimony timony was heard from Shelley J. Yak, Director, was heard from Thomas E. Brandon, Acting Direc- William J. Hughes Technical Center, Federal Avia- tor, Bureau of Alcohol, Tobacco, Firearms, and Ex- tion Administration; and public witnesses.

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Zukunft, Commandant, U.S. Coast Guard; Master 518, to amend the Federal Water Pollution Control Act Chief Steven W. Cantrell, Master Chief Petty Offi- to provide for technical assistance for small treatment cer, U.S. Coast Guard; Michael A. Khouri, Acting works, S. 692, to provide for integrated plan permits, to Chairman, Federal Maritime Commission; and Joel establish an Office of the Municipal Ombudsman, to pro- Szabat, Executive Director, in lieu of the Adminis- mote green infrastructure, and to require the revision of financial capability guidance, and S. 675, to amend and trator, Maritime Administration. reauthorize certain provisions relating to Long Island AN ASSESSMENT OF ONGOING CONCERNS Sound restoration and stewardship, 10 a.m., SD–406. AT THE VETERANS CRISIS LINE Committee on Foreign Relations: Subcommittee on Africa and Global Health Policy, to hold hearings to examine Committee on Veterans’ Affairs: Full Committee held a a progress report on conflict minerals, 2 p.m., SD–419. hearing entitled ‘‘An Assessment of Ongoing Con- Committee on Health, Education, Labor, and Pensions: to cerns at the Veterans Crisis Line’’. Testimony was hold hearings to examine the nomination of Scott Gott- heard from Michael J. Missal, Inspector General, De- lieb, of Connecticut, to be Commissioner of Food and partment of Veterans Affairs; Steve Young, Deputy Drugs, Department of Health and Human Services, 10 Undersecretary for Operations and Management, a.m., SD–430. Veterans Health Administration, Department of Vet- Committee on Homeland Security and Governmental Affairs: erans Affairs; and public witnesses. to hold hearings to examine improving border security and public safety, 9:30 a.m., SD–342. ASSESSING VA APPROVED APPRAISERS House AND HOW TO IMPROVE THE PROGRAM FOR THE 21ST CENTURY Committee on Agriculture, Full Committee, hearing enti- tled ‘‘Agriculture and Tax Reform: Opportunities for Committee on Veterans’ Affairs: Subcommittee on Eco- Rural America’’, 10 a.m., 1300 Longworth. nomic Opportunity held a hearing entitled ‘‘Assess- Committee on Appropriations, Subcommittee on Labor, ing VA Approved Appraisers and How to Improve Health and Human Services, Education and Related the Program for the 21st Century’’. Testimony was Agencies, hearing entitled ‘‘Federal Response to the heard from Jeffrey London, Director, Loan Guaranty Opioid Abuse Crisis’’, 10 a.m., 2358–C Rayburn. Service, Veterans Benefits Administration, Depart- Committee on Armed Services, Full Committee, hearing ment of Veterans Affairs; and public witnesses. entitled ‘‘Consequences to the Military of a Continuing Resolution’’, 10 a.m., 2118 Rayburn. Subcommittee on Readiness, hearing entitled ‘‘The Joint Meetings Current State of the U.S. Marine Corps’’, 2 p.m., 2212 No joint committee meetings were held. Rayburn. Committee on Education and the Workforce, Subcommittee f on Workforce Protections, hearing on H.R. 1180, the COMMITTEE MEETINGS FOR WEDNESDAY, ‘‘Working Families Flexibility Act of 2017’’, 10 a.m., APRIL 5, 2017 2175 Rayburn. Committee on Energy and Commerce, Subcommittee on (Committee meetings are open unless otherwise indicated) Communications and Technology, hearing entitled ‘‘Fa- cilitating the 21st Century Wireless Economy’’, 10 a.m., Senate 2123 Rayburn. Committee on Appropriations: Subcommittee on Transpor- Committee on Financial Services, Full Committee, hearing tation, Housing and Urban Development, and Related entitled ‘‘The 2016 Semi-Annual Reports of the Bureau Agencies, to hold hearings to examine protecting our of Consumer Financial Protection’’, 10 a.m., 2128 Ray- midshipmen, focusing on preventing sexual assault and burn. sexual harassment at the U.S. Merchant Marine Academy, Committee on Foreign Affairs, Subcommittee on Europe, 10 a.m., SD–192. Eurasia, and Emerging Threats, hearing entitled ‘‘Tur- Subcommittee on Department of Defense, to hold key’s Democracy Under Challenge’’, 2 p.m., 2172 Ray- closed hearings to examine intelligence programs and burn. threat assessment, 10:30 a.m., SVC–217. Committee on Homeland Security, Full Committee, mark- Committee on Banking, Housing, and Urban Affairs: Sub- up on H. Res. 235, directing the Secretary of Homeland committee on Economic Policy, to hold hearings to ex- Security to transmit certain documents to the House of

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Representatives relating to the Department of Homeland Subcommittee on the Interior, Energy and Environ- Security’s research, integration, and analysis activities re- ment, hearing entitled ‘‘Improving the Visitor Experience lating to Russian Government interference in the elec- at National Parks’’, 2 p.m., 2247 Rayburn. tions for Federal office held in 2016, 11 a.m., HVC–210. Subcommittee on National Security, hearing entitled, Committee on the Judiciary, Full Committee, markup on ‘‘Assessing the Iran Deal’’, 2 p.m., 2154 Rayburn. H.R. 1842, the ‘‘Strengthening Children’s Safety Act of Committee on Small Business, Full Committee, hearing 2017’’; H.R. 1761, the ‘‘Protecting Against Child Exploi- entitled ‘‘Taking Care of Small Business: Working To- tation Act of 2017’’; the ‘‘Global Child Protection Act of gether for a Better SBA’’, 11 a.m., 2360 Rayburn. 2017’’; H.R. 1862, the ‘‘Global Child Protection Act of Committee on Transportation and Infrastructure, Sub- 2017’’; and H.R. 659, the ‘‘Standard Merger and Acquisi- committee on Highways and Transit, hearing entitled tion Reviews Through Equal Rules Act of 2017’’, 11 ‘‘FAST Act Implementation: State and Local Perspec- a.m., 2141 Rayburn. tives’’, 10 a.m., 2167 Rayburn. Committee on Natural Resources, Subcommittee on Energy Committee on Veterans’ Affairs, Subcommittee on Dis- and Mineral Resources, hearing on H.R. 1731, the ‘‘Revi- ability Assistance and Memorial Affairs, hearing on H.R. 105, the ‘‘Protect Veterans from Financial Fraud Act of talizing the Economy of Coal Communities by Leveraging 2017’’; H.R. 299, the ‘‘Blue Water Navy Vietnam Vet- Local Activities and Investing More Act of 2017’’, 10 erans Act of 2017’’; H.R. 1328, the ‘‘American Heroes a.m., 1324 Longworth. COLA Act of 2017’’; H.R. 1329, the ‘‘Veterans’ Com- Subcommittee on Federal Lands, hearing on H.R. 218, pensation Cost-of-Living Adjustment Act of 2017’’; H.R. the ‘‘King Cove Road Land Exchange Act’’; H.R. 497, 1390, to amend title 38, United States Code, to authorize the ‘‘Santa Ana River Wash Plan Land Exchange Act’’; the Secretary of Veterans Affairs to pay costs relating to H.R. 1157, to clarify the United States interest in certain the transportation of certain deceased veterans to veterans’ submerged lands in the area of the Monomoy National cemeteries owned by a State or tribal organization; H.R. Wildlife Refuge, and for other purposes; and H.R. 1728, 1564, the ‘‘VA Beneficiary Travel Act of 2017’’; and a to modify the boundaries of the Morley Nelson Snake draft bill entitled ‘‘Quicker Veterans Benefits Delivery River Birds of Prey National Conservation Area, and for Act of 2017’’, 10:30 a.m., 334 Cannon. other purposes, 2 p.m., 1324 Longworth. Committee on Oversight and Government Reform, Full Com- Joint Meetings mittee, hearing entitled ‘‘Oversight of the Federal Emer- Joint Economic Committee: to hold hearings to examine gency Management Agency’s Response to the Baton the decline of economic opportunity in the United States, Rouge Flood Disaster: Part II’’, 9:30 a.m., 2154 Rayburn. focusing on causes and consequences, 10 a.m., 1100 Longworth Building.

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9:30 a.m., Wednesday, April 5 10 a.m., Wednesday, April 5

Senate Chamber House Chamber Program for Wednesday: Senate will continue consider- Program for Wednesday: Consideration of H.R. ation of the nomination of Neil M. Gorsuch, of Colorado, 1304—Self-Insurance Protection Act. Consideration of to be an Associate Justice of the Supreme Court of the the following measure under suspension of the Rules: United States. H.R. 369—To Eliminate the Sunset of the Veterans Choice Program.

Extensions of Remarks, as inserted in this issue

HOUSE Farenthold, Blake, Tex., E437 Reed, Tom, N.Y., E442 Gutie´rrez, Luis V., Ill., E441 Roby, Martha, Ala., E436, E440 Abraham, Ralph Lee, La., E444 Hastings, Alcee L., Fla., E441 Smith, Lamar, Tex., E435, E448 Bilirakis, Gus M., Fla., E440 Jackson Lee, Sheila, Tex., E447 Stefanik, Elise M., N.Y., E439, E443, E446, E450 Burgess, Michael C., Tex., E435 Jenkins, Evan H., W.Va., E444 Thompson, Bennie G., Miss., E437, E439, E440, E442, Bustos, Cheri, Ill., E450 Johnson, Eddie Bernice, Tex., E442 E444, E446, E448 Cohen, Steve, Tenn., E445 Kinzinger, Adam, Ill., E437 Connolly, Gerald E., Va., E435, E436, E438, E440, E441, Long, Billy, Mo., E439 Titus, Dina, Nev., E438 E442, E443, E445, E446, E447 Marino, Tom, Pa., E444 Tonko, Paul, N.Y., E445 Costa, Jim, Calif., E438, E441, E444, E445, E449 Perlmutter, Ed, Colo., E435, E436, E438, E440, E441, Walker, Mark, N.C., E441 Crist, Charlie, Fla., E439 E442, E443, E444, E446, E447 Young, David, Iowa, E450, E450, E450, E450, E450, E451, Davis, Rodney, Ill., E438, E439, E447 Pittenger, Robert, N.C., E441 E451, E451 DesJarlais, Scott, Tenn., E436 Pocan, Mark, Wisc., E443

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