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Senate (Legislative Day of Tuesday, April 4, 2017) 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 . VerDate Sep 11 2014 23:57 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.101 S04APPT2 lotter on DSK5VPTVN1PROD with SENATE S2258 CONGRESSIONAL RECORD — SENATE April 5, 2017 party to a litigation sought such a re- the entire tradition of the Senate had I have been sharing the many reasons view. And then she went on, and what been to always do so, when the written this debate should be suspended: One, did she say about Judge Gorsuch’s pro- responsibility under the Constitution because the seat was stolen; two, be- posal? She said he ‘‘mischaracterized was to do so? 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.
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