S2190 CONGRESSIONAL RECORD — SENATE April 4, 2017 The PRESIDING OFFICER. Under Harris Menendez Shaheen imagine a nominee that Donald Trump the previous order, the motion to re- Hassan Merkley Stabenow would choose that would get Repub- Heinrich Murphy Tester consider is considered made and laid Hirono Murray Udall lican support that we could support.’’ upon the table and the President will Kaine Nelson Van Hollen That is the end of the quote from the be immediately notified of the Senate’s King Peters Warner minority leader. Klobuchar Reed action. Warren He said later, and I will continue to Leahy Sanders Whitehouse Markey Schatz quote him: ‘‘If the nominee is out of f Wyden McCaskill Schumer the mainstream, we’ll do our best to RECESS NOT VOTING—1 hold the seat open.’’ The PRESIDING OFFICER. Under Isakson Then the President nominated Judge Gorsuch. This judge is eminently quali- the previous order, the Senate stands The motion was agreed to. fied to fill Justice Scalia’s seat on the in recess until 2:15 p.m. f Thereupon, the Senate, at 12:33 p.m., Supreme Court, and there is no deny- recessed until 2:15 p.m. and reassem- EXECUTIVE SESSION ing that whatsoever. bled when called to order by the Pre- Let me tell you some things about siding Officer (Mr. PORTMAN). him. He is a graduate of Columbia Uni- EXECUTIVE CALENDAR The PRESIDING OFFICER. The ma- versity and Harvard Law School. He jority leader. The PRESIDING OFFICER. The earned a doctorate in philosophy from clerk will report the nomination. Oxford University and served as a law f The senior assistant legislative clerk clerk for two Supreme Court Justices. LEGISLATIVE SESSION read the nomination of Neil M. During a decade in private practice, Gorsuch, of Colorado, to be an Asso- he earned a reputation as a distin- Mr. MCCONNELL. Mr. President, I ciate Justice of the Supreme Court of guished trial and appellate lawyer. He move to proceed to legislative session. the United States. served with distinction in the Depart- The PRESIDING OFFICER. The The PRESIDING OFFICER. The Sen- ment of Justice. He was confirmed to question is on agreeing to the motion. ator from Iowa. the Tenth Circuit Court of Appeals by The motion was agreed to. Mr. GRASSLEY. Mr. President, be- a unanimous voice vote in this body. f fore I start, I ask unanimous consent The record he has built during his that the debate time on the nomina- decade on the bench has earned him MOTION TO PROCEED TO tion of Judge Gorsuch during Tues- the universal respect of his colleagues EXECUTIVE SESSION day’s session of the Senate be divided both on the bench and the bar. This Mr. MCCONNELL. Mr. President, I as follows: the time until 3:30 p.m. be judge is eminently qualified to do what move to proceed to executive session to under the control of the chairman of the President appointed him to do. consider Executive Calendar No. 33, the the Judiciary Committee; the time Faced with an unquestionably quali- nomination of Neil Gorsuch to be Asso- from 3:30 p.m. until 4:30 p.m. be under fied nominee, my friends on the other ciate Justice of the Supreme Court of the control of the minority; the time side of the aisle, my Democratic col- the United States, and I ask for the from 4:30 p.m. until 5:30 p.m. be under leagues, have continually moved the yeas and nays. the control of the majority; the time goalpost, setting test after test for this The PRESIDING OFFICER. Is there a from 5:30 p.m. until 6:30 p.m. be under judge to meet. But do you know what? sufficient second? the control of the minority; and fi- This judge has passed all of those tests, There appears to be a sufficient sec- nally, that the time from 6:30 p.m. all with flying colors, so the people on ond. until 6:45 p.m. be under the control of the other side of the aisle—the Demo- The question is on agreeing to the the majority. crats in the minority—are left with a motion. The PRESIDING OFFICER. Is there ‘‘no’’ vote in search of a reason. The clerk will call the roll. objection? Let’s go through some of their argu- The senior assistant legislative clerk Without objection, it is so ordered. ments. First, the minority leader an- called the roll. Mr. GRASSLEY. Mr. President, nounced that the nominee must prove Mr. CORNYN. The following Senator today we will continue to debate the himself to be a mainstream judge. Is he is necessarily absent: the Senator from nomination of Judge Neil M. Gorsuch a mainstream judge or not? Well, con- Georgia (Mr. ISAKSON). to serve as Associate Justice of the Su- sider his record: Judge Gorsuch has The PRESIDING OFFICER. Are there preme Court of the United States. heard 2,700 cases and written 240 pub- any other Senators in the Chamber de- The Judiciary Committee held four lished opinions. He has voted with the siring to vote? full days of hearings last month. The majority in 99 percent of the cases, and The result was announced—yeas 55, judge testified for more than 20 hours. 97 percent of the cases he has heard nays 44, as follows: He answered more than 1,000 questions have been decided unanimously. Only [Rollcall Vote No. 104 Leg.] during his testimony and hundreds one of those 2,700 cases was ever re- YEAS—55 more questions for the record. We have versed by the Supreme Court, and it Alexander Fischer Paul had the opportunity to review the 2,700 happens that Judge Gorsuch did not Barrasso Flake Perdue cases he has heard, and we have had write the opinion. Bennet Gardner Portman the opportunity to review the more Then consider what others say about Blunt Graham Risch than 180,000 pages of documents pro- him. He has been endorsed by promi- Boozman Grassley Roberts duced by the Bush Library and the De- nent Democratic members of the Su- Burr Hatch Rounds Capito Heitkamp Rubio partment of Justice. Now, after all of preme Court bar, including Neal Cassidy Heller Sasse this, my Democratic colleagues unfor- Katyal, President Obama’s Acting So- Cochran Hoeven Scott Collins Inhofe tunately appear to remain committed licitor General. This Acting Solicitor Shelby Corker Johnson to what they have been talking about General wrote a New York Times op-ed Strange Cornyn Kennedy for a long period of time: filibustering entitled ‘‘Why Liberals Should Back Sullivan Cotton Lankford the nomination of this very well quali- Neil Gorsuch.’’ Mr. Katyal wrote: ‘‘I Crapo Lee Thune Cruz Manchin Tillis fied jurist. have no doubt that if confirmed, Judge Daines McCain Toomey Even after all of this process, there is Gorsuch would help to restore con- Donnelly McConnell Wicker no attack against the judge that fidence in the rule of law.’’ Enzi Moran Young sticks. In fact, it has been clear since He went on to write that the judge’s Ernst Murkowski before the judge was nominated that record ‘‘should give the American peo- NAYS—44 some Members in the Democratic lead- ple confidence that he will not com- Baldwin Cardin Duckworth ership would search desperately for a promise principle to favor the Presi- Blumenthal Carper Durbin reason to oppose him. dent who appointed him.’’ Booker Casey Feinstein Brown Coons Franken As the minority leader said before Likewise, another well-known per- Cantwell Cortez Masto Gillibrand the nomination: ‘‘It’s hard for me to son, David Frederick, a board member

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.018 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2191 of the liberal American Constitution nothing to do with her personal views the line and might not help filibuster Society, says we should ‘‘applaud such on the subject. Now, there is a whole this nomination. For some reason, I am independence of mind and spirit in Su- different standard for some people of not hearing a lot of complaints about preme Court nominees.’’ this body. That answer is apparently the money that is being raised to make So after hearing what people on both no longer good enough. To hear the some Democrats who might support the right and the left have said about other side tell it, government lawyers this nominee look bad. the judge, it is clear that he is ‘‘main- are responsible for the positions their As I have said, there is nothing stream,’’ but the goalpost seems to client, the U.S. Government, takes and wrong with citizens engaging in the move. Next we hear that the judge the positions they have to argue. I re- process and making their voices heard. doesn’t care about the ‘‘little guy’’ spect my colleagues who are making This is one of the ways we are free to and, instead, rules for the ‘‘big guy.’’ this argument, but this argument does speak our minds in a democracy. It has First of all, that is a goofy argument. not hold water. been true for a long, long time. Just ask liberal law professor Noah What, then, are my colleagues on the As I said yesterday in the committee Feldman. If you ask Professor Feld- other side left with after moving these meeting, if you don’t like outside man, he says this criticism is a ‘‘truly goalposts many times, after making all groups getting involved, the remedy is terrible idea’’ because ‘‘the rule of law of these arguments that don’t stick? not to intimidate and try to silence isn’t liberal or conservative—and it What are they left with? Because they that message; the remedy you ought to shouldn’t be.’’ can’t get any of their attacks on the follow is to support nominees who The strategy on this point became judge to stick, all they are left with apply the law as it is written and then, clear during our hearing: Pore through are complaints about the so-called in turn, leave the legislating to a body 2,700 cases, cherry-pick a couple where dark money being spent by advocacy elected to make laws under our Con- sympathetic plaintiffs were on the los- groups. Yes, that is where the goalpost stitution—the Senate and the House of ing end of the legal argument, then took them—to dark money. Representatives. find a reason to attack the judge for As I said yesterday, that speaks vol- Regardless of what you may think that result, and then, because of that umes about the nominee, that after re- about advocacy groups, about their case or two, label him ‘‘against’’ the viewing 2,700 cases, roughly 180,000 getting involved, there is certainly no little guy. As silly as that argument is, pages of documents from the Depart- reason that they should go to great the judge himself laid waste to that ar- ment of Justice and the George W. lengths to talk about this in our com- gument during the hearing when he Bush Library, thousands of pages of mittee or talk about it to the nominee rattled off a number of cases where the briefs, and over 20 hours of testimony because he can’t control any of that. so-called little guy came out on the before our committee and hundreds of The truth is, the Democrats have no winning end of the legal argument of a questions both during and after the principled reason to oppose this nomi- case. hearing, all his detractors are left with nation, and those are words from David At any rate, as we discussed at is an attack on the nominee’s sup- Frederick that I have quoted before. It length during his hearings, the judge porters—people out there whom the is clear instead that much of the oppo- applies the law neutrally to every nominee probably doesn’t even know. sition to the nominee is pretextual. party before him, and that is what you They raise money to tell people about The merits and qualifications of the expect of judges. him, which they have a constitutional nominee apparently no longer matter. I disagree with some of my col- right to do under the First Amendment The only conclusion we are left to leagues who have argued that judging freedom of speech. draw is that the Democrats will refuse is not just a matter of applying neutral The bottom line is that they don’t to confirm any nominee this Repub- principles. I think that view is incon- have any substantive attacks on this lican President may put forth. There is sistent with the role our judges play in nominee that will stick, so they shifted no reason to think the Democrats our system and, more importantly, tactics, yet again moving the goalpost, would confirm any other judge the with regard to the oath they take. and are now trying to intimidate and President identified as a potential That oath requires them to do ‘‘equal silence those who are speaking out and nominee or any judge he would nomi- right to the poor and the rich’’ and to making their voices heard in regard to nate. In fact, we don’t even need to apply the law ‘‘without respect to per- this nominee. speculate on that point because the mi- sons.’’ Naturally, this is what it means Here is the most interesting thing nority leader has spoken that point to live under the rule of law, and this about this latest development: There and made his point very clear. Before is what our nominee has done during are advocacy groups on every side of the President made this nomination, his decade on the bench of the Tenth this nomination. There are people out he said: ‘‘I can’t imagine us supporting Circuit Court of Appeals. So the judge there for him, raising money and anyone from his list.’’ So it was very applies the law ‘‘without respect to spending the money for him, and there clear from the very beginning that the persons,’’ as he promised in his first are people out there against him who minority leader was going to lead this oath he would, and he will repeat the are raising and spending money so peo- unprecedented filibuster. The only oath when he goes on the Supreme ple know why they disagree with this question was what excuse he would Court. nominee. Of course, that is nothing manufacture to justify it. The nominee Then, of course, as they move these new. That has been true of past nomi- enjoys broad bipartisan support from goalposts, the judge has been criticized nations, and there is nothing wrong those who know him, and he enjoys bi- for the work he did on behalf of his with citizens engaging in the First partisan support in the Senate. former client, the U.S. Government, Amendment freedom of speech and in I recognize that the minority leader when he was at the Justice Depart- the process of being for or against and is under very enormous pressure from ment. encouraging public debate on whether special interest groups to take this ab- Of course, we have had a lot of nomi- a person ought to be on the Supreme normal step of filibustering a judge, be- nees over many years who have worked Court. It was certainly true when lib- cause filibustering the Senate is not as lawyers in the government. Most re- eral groups favoring the Garland nomi- unusual but filibustering a Supreme cently, Justice Kagan worked as Solic- nation poured money into Iowa to at- Court Justice is very unusual. I know itor General. As we all know, she ar- tack me last year for not holding a other Members of his caucus are oper- gued before the Supreme Court that hearing. For that reason, I didn’t hear ating under those very same pressures the government could constitutionally a lot of my Democratic colleagues as well. In fact, yesterday, while the ban pamphlet material. That is a fairly complain about that money that could committee was debating the nomina- radical position for the U.S. Govern- well be called dark money as well. tion, a whole host of liberal and pro- ment to take. When asked about that There are groups on the left who are gressive groups held a press conference argument during her hearing, she said running ads in opposition to this nomi- outside of the Democratic Senatorial that she was a government lawyer nee and threatening primaries. They Campaign Committee, demanding that making an argument on behalf of her are actually threatening primaries the campaign arm cut off campaign client, the U.S. Government, and it had against Democrats who might not tow funds for any incumbent Democrat who

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.020 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2192 CONGRESSIONAL RECORD — SENATE April 4, 2017 doesn’t filibuster this nominee. Those body who serves on the Tenth Circuit at Confluence Park, Colorado’s poet groups argue that because the Demo- Court in Denver—a circuit court that laureate, Thomas Hornsby Ferril, has a cratic Senatorial Campaign Committee represents 20 percent of the land mass poem inscribed on a plaque, which had already raised a lot of money off of the United States. reads: the minority leader’s announcement Neil Gorsuch’s background and up- I wasn’t here. Yet I remember them, the that he was going to lead a filibuster, bringing in Colorado represent the hard first night long ago, those wagon people who the committee shouldn’t provide that work of westerners. His maternal pushed aside enough of the cottonwoods to money to any Member who refused to grandfather, Dr. Joseph McGill, began build our city where the blueness rested. join this misguided effort. his adult life by working in Union Sta- It is a poem that reminds us in Colo- Well, all I can say is that it would be tion, the main railway terminal in rado that we are always looking up, truly unfortunate for Democrats to downtown Denver. Dr. McGill put him- that we are always looking toward the buckle to that pressure and engage in self through medical school and went mountains and to that great blue sky. the first partisan filibuster of a Su- on to become a prominent surgeon. His That is what Neil Gorsuch has done his preme Court Justice nominee in U.S. grandmother, Dorothy Jean, raised entire life. He is somebody who is for- history—another way to say that is, seven children, all of whom he gave a ward-thinking, somebody who under- the first partisan filibuster in the 228- better life and put through college be- stands the optimistic sense of Colo- year history of our country since 1789. cause of his work in Colorado. rado, who understands the majesty of If they regard this nominee as the first Neil’s paternal grandfather, John our West, and who understands the in our history worthy of a partisan fili- Gorsuch, was his legal inspiration. majesty of our form of government—a buster, it is clear they would filibuster After serving in World War I, John system that has three separate but anyone. Gorsuch put himself through undergrad equal branches of power. He has led a I have stated since long before the and law school at the University of life that is dedicated to the majesty of election that the new President would Denver by driving a trolley car back in our Constitution. He is somebody who nominate the next Justice and the Ju- the trolley car days of Denver. John, understands the pillars of our govern- diciary Committee would process that his grandfather, helped to build a pri- ment in that no one branch of govern- nomination. That is just what we have vate law practice that focused on real ment should gain an unfair advantage done through the committee, and now estate law. He made time to help Den- over the other. That is what we ought we are doing it on the floor. So I urge ver’s welfare department and partici- to be debating this week. Instead, we my colleagues not to engage in this un- pated in Kiwanis and numerous other are going to live the consequences of precedented partisan demonstration. civic organizations, building a leg- decisions that were made over a decade Everyone knows the nominee is a endary law firm in Denver known as ago. qualified, mainstream, independent Gorsuch Kirgis. It is interesting that Judge Gorsuch judge of the very highest caliber. Re- This is the kind of upbringing that serves on the Tenth Circuit Court be- publicans know it, Democrats know it, made Neil Gorsuch who he is. In his cause one of his fellow judges on the and the left-leaning editorial boards younger days, Neil moved furniture, Tenth Circuit Court was nominated by across the country prove that even the shoveled snow, like so many of us in President George Bush in the early press knows it. I urge my colleagues on Colorado, mowed lawns. It was the part of 2001, 2002, 2003. It was Tim the other side to come to their senses kind of upbringing that brings grit and Tymkovich who was nominated by and not engage in the first partisan fil- determination to any person who President Bush and who was caught up ibuster in U.S. history and instead join knows hard work. It is that work ethic, in the very first round of filibusters me and vote in favor of Judge combined with his family’s apprecia- that changed the way this Chamber Gorsuch’s confirmation. tion of higher education, that helped worked on nominations. I yield the floor. Neil consistently realize academic ex- It was a calculated determination by The PRESIDING OFFICER. The Sen- cellence. It has been debated on this some in this Chamber to use a tool ator from Colorado. floor numerous times, his academic that had never been used before in such Mr. GARDNER. Thank you, Mr. credentials that he would bring to the a lethal, partisan fashion that it would President, for the opportunity to come Supreme Court—his background and bring down judges and ultimately lead to the floor today in support of Judge education at Columbia, law school at to a corrosion of Senate custom—a cor- Neil Gorsuch’s confirmation to the Su- Harvard, his Ph.D. at Oxford, and of rosion of over 200 years of Senate prac- preme Court. As a Coloradan, it gives course, most importantly, the summer tice—when it comes to judges’ con- me great honor to be here to talk he spent at the University of Colorado firmations. Ultimately, this week, we about his nomination, the exceptional and the teaching he carries out at the will see whether it leads to the disrup- qualities of Judge Gorsuch, and how he University of Colorado School of Law. tion of how we confirm Supreme Court will make us proud from the bench of This week, we are going to see a lot Justices. the U.S. Supreme Court. of finger-pointing and hear a lot of ac- Make no mistake about it, over the I also commend my colleague, Chair- cusations. We are going to hear a lot of past 200 years, we have not seen this man CHUCK GRASSLEY, for his work on blame. The one thing we may not hear moment before—a successful partisan the Judiciary Committee presiding too much about is the person we are filibuster of a Supreme Court Justice. over a very fair series of hearings, giv- debating—Neil Gorsuch. That is be- People are going to talk about this ing members on both sides of the aisle cause when it comes to Judge Gorsuch, around the country as they read the time to learn about Judge Gorsuch, to people understand the highly qualified news, as they listen to the radio, as question Judge Gorsuch, and the time judge that he is. People understand the they watch on TV what is happening in to present their side of the argument incredible legal mind he would bring to the Senate. Most will just wonder, is depending on whatever side that was the Supreme Court. Instead of debating the nominee qualified? If the nominee going to be. Because of the fairness of the merits of the nominee, they are is qualified, then why are we trying to the hearings, because of the fairness going to debate how we got to the place have an argument about ‘‘he said, she with which Chairman GRASSLEY exe- we are today, and by the end of this said’’ 15 years ago, 16 years ago? Be- cuted the hearings, it is quite obvious week, architects of obstruction may cause the nominee is well qualified, he that this Chamber is faced with a very force this Chamber to vote along par- should be confirmed. Why are we going exceptional judge, a very exceptional tisan lines on something that should be to change 200 years of Senate practice nominee, and a nominee there is really a bipartisan effort. and custom if the nominee is highly no excuse to vote against. In Colorado, if you go to downtown qualified, has what it takes to serve on Neil Gorsuch really is about the Denver, you will see an area known as the Supreme Court? That is the choice story of the West. He is a fourth-gen- Confluence Park. Confluence Park is a Members of this Chamber will have to eration Coloradan. It is nice to stand great place in Colorado where people make over the next several days as we here and talk about somebody who go to spend an afternoon and perhaps a work to confirm Judge Gorsuch. shares so much of our western experi- weekend on a hot summer’s day. It is In 2006 when Judge Gorsuch was con- ence and western heritage and some- where two rivers join together. There firmed to serve on the Tenth Circuit

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He is another cameralism and presentment hurdles of Arti- served then and did not oppose his very prominent Democratic lawyer in cle I, the judge would need only his own voice or those of just a few colleagues to re- nomination, many of whom seem will- Denver. vise the law, willy-nilly, in accordance with ing today to block his nomination to We have heard a lot of people talk his preferences, and the task of legislating the Supreme Court. about the cases—those 2,700 opinions— would become a relatively simple thing. One thing has changed in the inter- that he was a part of. We have heard Notice too how hard it would be to revise vening years; that is, who serves in the Senator GRASSLEY talk about argu- this so easily made judicial legislation to ac- Presidency, who serves in the White ments against Judge Gorsuch, people count for changes in the world or to fix mis- House, who serves as President, and who have said that Judge Gorsuch was takes. Being unable to throw judges out of whether that nomination came from a office in regular elections, you would have to always against the little guy and that wait for them to die before you would have Republican or a Democrat. The nomi- he was siding with corporations. any chance of change. Even then, you would nation, of course, in 2006 came from a Here is a quote from a Denver lawyer find the change difficult, for courts cannot Republican. Still, he was confirmed and Democrat on representing under- so easily undo the errors given the weight unanimously. Judge Gorsuch, now dogs before Judge Gorsuch: that they afford to precedent. nominated to serve on the Supreme [Judge Gorsuch] issued a decision that, Notice, finally, how little voice the people Court, was appointed by a Republican. most certainly, focused on the little guy. would be left in a government in which life- appointed judges are free to legislate along- Yet those very same people who sup- Why did Marcy Glenn say this? ported him 11 years ago are now object- side elected representatives. The very idea of Marcy Glenn said this because she self-government would seem to wither to the ing to his service on the High Court knows that Judge Gorsuch voted with point of pointlessness. Indeed, it seems that, after his exemplary decade of service the majority of the court in 99 percent for reasons just like these, Hamilton ex- on the Tenth Circuit Court. of the cases. In those 2,700 opinions, 99 plained, that liberty can have nothing to It was service that showed Judge percent of the time, Judge Gorsuch fear from the judiciary alone but that it has Gorsuch’s joining in over 2,700 opin- ruled with the majority. That is not everything to fear from the union of the ju- dicial and legislative powers. ions, and with the majority the vast trying to look out for the big guy or number of times. It was service in the little guy. That is about following That is what Judge Gorsuch said which he got to know the Colorado the law. That is about a court that rec- makes a good and faithful judge. legal community. As we have discussed ognizes it is not in the business of Over the course of the next week or over the past several days and several focus groups or policy preferences, pop- over the course of the next several weeks and the past month, the people ularity contests or poll testing. It is days, we are going to flesh out in detail who know Judge Gorsuch the best are about a judge who recognizes that the some of the decisions people may find the people who served with him and rule of law matters and that you take they disagree with. We will flesh out in who worked with him at the Depart- an opinion where the law leads you and detail Judge Gorsuch’s temperament ment of Justice, who practiced law takes you, not where your personal and his performance at the committee with him, and who serve in the Colo- opinion takes you. It was 99 percent of hearings. Yet there is no doubt that rado legal community. I thought it was the time that Judge Gorsuch voted to Judge Gorsuch has the support of the important that we spend some time in side with the majority on the court, American people, who believe he talking about the people who know and 97 percent of the time, those rul- should be confirmed. There is no doubt Judge Gorsuch the best because I think ings were unanimous. Those decisions that Judge Gorsuch has the support of their opinions matter in this—those of were unanimous. Of those 99 percent in people who cochaired the Democratic the people of Colorado who want Judge which he sided with the majority, 97 National Convention and of prominent Gorsuch confirmed. percent of them were unanimously de- attorneys who know him best from Col- Let me start with a series of quotes cided. orado. There is no doubt that his is an from Judge Gorsuch’s supporters back This is a judge who is as mainstream upbringing from the West. It is the home in Colorado—again, those people as we have seen. He is somebody who story of how we built the West. who know him the best. understands the obligation and the I hope that over the course of the This particular quote comes not from duty he has to the law. He is somebody next few days, Republicans and Demo- a Republican, not from a conservative; who understands what it means to be a crats alike will come to the conclusion this quote comes from Steve Farber, good judge. that we will do this country a service. who served in 2008 as the Democratic Instead of having partisan fights, we I want to read a letter Senator BEN- National Convention cochair. Again, he will have the bipartisanship support for NET and I received from the Colorado is not a conservative and he is not a legal community: a judge who will truly make this coun- Republican; he was the cochair of the try proud, a judge who will truly rep- 2008 Democratic National Convention. As members of the Colorado legal commu- resent the law, not personal opinion. nity, we are proud to support the nomination We know Judge Gorsuch to be a person of of Judge Neil Gorsuch to be our next Su- I thank the Presiding Officer for this utmost character. He is fair, decent, and preme Court Justice. We hold a diverse set of opportunity today. I look forward to honest, both as a judge and a person. political views as Republicans, Democrats, being here for the rest of the week as Steve Farber continues: and Independents. we talk about Judge Gorsuch’s quali- We all agree that Judge Gorsuch is excep- That is bipartisan support back home fications and as we talk about the tionally well qualified to join the Supreme from those people who know the judge nomination. Court. He deserves an up-or-down vote. the best. More than anything, let’s make it This is not MITCH MCCONNELL who is What does Neil Gorsuch think it clear that for 200-plus years, we have saying this. It is not CORY GARDNER, takes to be a good and faithful judge? allowed judges to come to this floor for Republican Senator from Colorado, I will just read from Judge Gorsuch: the Supreme Court and to be confirmed who is saying this. This is a very It seems to me that the separation of legis- by a simple majority—no threshold, no prominent figure in Colorado’s legal lative and judicial powers isn’t just a for- 60-vote requirement. We have done so community and somebody who served mality dictated by the Constitution. Neither without partisan filibusters. I think in the 2008 Democratic National Con- is it just about ensuring that two institu- that if we can maintain that custom, vention. tions, with basically identical functions, are that practice, this country will be bet- One of those 12 people who supported balanced one against the other. To the ter served. There is no reason to Judge Gorsuch in 2006 was then-Sen- Founders, the legislative and judicial powers change two centuries of practice in this ator Barack Obama, who was seeking were distinct by nature, and their separation body simply because they have decided the nomination at Mile High Stadium, was among the most important liberty-pro- tecting devices of the constitutional design— they do not like the person who made at this very convention of which Steve an independent right of people essential to the nomination. Farber was cochair. Steve Farber says the preservation of all of the rights later I yield the floor. we should confirm Judge Gorsuch with enumerated in the Constitution and its The PRESIDING OFFICER (Mr. an up-or-down vote. amendments. HOEVEN). Under the previous order, the

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.023 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2194 CONGRESSIONAL RECORD — SENATE April 4, 2017 time until 4:30 p.m. will be controlled today to make the same amount that 2009. Frankly, I doubt a Republican- by the Democrats. men made in 2016. Women have had to controlled House and Senate would The Senator from Hawaii. work more than 3 months longer to have done the same. It was the first Ms. HIRONO. Mr. President, over the catch up, on average, to men. bill President Obama signed into law. I next hour, a number of my colleagues This significant pay disparity has ex- was there for that bill signing. and I will join together to speak in op- isted for centuries, but it has been ille- Though we could not retroactively position to the nomination of Judge gal in the United States since the pas- help Mrs. Ledbetter, this law reversed Neil Gorsuch to be an Associate Jus- sage of the Equal Pay Act in 1963. Prov- the Supreme Court’s decision and as- tice of the U.S. Supreme Court. We are ing illegal pay disparity under this law sured that the injustice she endured joining together today because this has been challenging, as we all know. did not happen to other women or to nomination is not just about the future Nationally, women are paid only 79 anyone else. Clearly, the composition of the Supreme Court. It is about the cents for every dollar a man is paid. In of the Court and the identity of the future of our country. Hawaii, women are paid only 82 cents fifth Justice matters a great deal in There is no question about Judge for every dollar a man makes. That is the real world—the real world of 5-to-4 Gorsuch’s credentials or about his in- a little better than the rest of the decisions. tellect. He is a graduate of Columbia country, but it is in no way good Yet, during this hearing, Judge and Harvard and has been a judge on enough. Gorsuch refused to even acknowledge the Tenth Circuit Court for more than At the median salary, that 82 cents the role that judicial philosophy plays a decade. In fact, his credentials are in translates into about $8,000 less per in the role of a Justice, and he stark contrast to so many of the dan- year in wages for a woman in Hawaii. downplayed the impact the law could gerously unqualified individuals Presi- That is a lot of money in my State, have on people’s lives, repeatedly say- dent Trump appointed to his Cabinet. where the high cost of living makes it ing he merely applied the law. Judge Gorsuch should not get a pass even more difficult for working fami- If Justices merely applied the law simply because we are relieved that lies to get ahead—not to mention that and the law was so clear, we wouldn’t President Trump didn’t nominate a many working families in Hawaii, as have so many 5-to-4 decisions in the member of his family or a reality tele- well as in other States, are headed by most critical cases. vision personality for this job. Creden- women. My immigrant family was Judge Gorsuch told me during our tials cannot and should not be the only headed by my mother. meeting in February that the purpose points we consider when evaluating a As we mark Equal Pay Day, I am of title III courts—these are the Fed- lifetime appointment to the Supreme well aware of the tremendous impact a eral courts—is to protect minority Court. In fact, we should expect that single Justice can have on the lives and rights. But I found through examining anyone nominated to the Supreme rights of millions of Americans. his writings and decisions that Judge Under Chief Justice John Roberts, Court will at least have impressive cre- Gorsuch’s view of the law lacks an un- the Supreme Court has issued numer- derstanding of people, their lives, and dentials. ous 5-to-4 decisions that have favored By many accounts, Judge Gorsuch how the courts’ decisions would impact corporate interests over the rights of would be the most conservative Justice them. individuals—cases like Shelby County, This was particularly true in exam- on the Court—even more conservative Citizens United, and Hobby Lobby. ining his ruling in the Hobby Lobby de- than Justice Thomas or Justice Scalia. One of the most deeply flawed of cision, where Judge Gorsuch dem- Rightwing advocacy groups cheered his these 5-to-4 decisions was in a 2007 case onstrated a cavalier attitude about nomination and have spent over $10 called Ledbetter v. Goodyear Tire & how his decision would impact the million to support his nomination. Rubber Co. That decision had the effect thousands of women working at the They spent this money because they of denying justice to a woman who had Hobby Lobby company. have high confidence that he will rule suffered pay discrimination for more In that case, Judge Gorsuch decided in their favor on so many of the tough than a decade. The Court said, in ef- that a corporation with tens of thou- cases that will come before the Su- fect, that because Lilly Ledbetter sands of employees—many of them preme Court. These groups, including didn’t learn of the pay discrimination women—has rights to the exercise of the Heritage Foundation and the Fed- until it was too late, our justice sys- religion protected by the Religious eralist Society, selected Judge Gorsuch tem could not help her. Freedom Restoration Act, and that it because he meets their litmus test for Put another way, under the ruling, could use those rights to deny to the how they think a Justice should rule. employers could discriminate against thousands of women in its employ ac- They selected him because they under- women so long as the employers made cess to contraceptive coverage. stood Judge Gorsuch clearly met the sure the women didn’t find out about During the hearing, I pressed Judge litmus test the President outlined dur- it. Gorsuch on whether he considered ing his campaign. This will not be hard to do, as em- what would happen to the thousands of To paraphrase, Donald Trump wanted ployers are not likely to announce that women who worked at Hobby Lobby, a judge who would prioritize the reli- they are providing discriminatory pay many of them working paycheck to gious freedom of a corporation over the to their female employees. This is what paycheck who would now be denied ac- rights of its employees, uphold an ex- happened to Lilly Ledbetter. She didn’t cess to contraceptive coverage. He re- pansive view of the Second Amend- know. sponded by saying: ‘‘I gave every as- ment, making it much tougher to This decision was deeply wrong and pect of that case very close consider- enact sensible gun legislation to pro- surprised many Court watchers. It ation.’’ tect our communities, and who would undid years of judicial precedent. I fail to see what consideration Judge overturn Roe v. Wade—as Donald I remember learning of this decision Gorsuch gave to those female employ- Trump put it—automatically. in Hawaii. I was serving on the House ees. It is certainly not evident in the Judge Gorsuch’s credentials are just Education and Labor Committee of the record. a starting point. For the people who U.S. House of Representatives at that Justice Ginsburg’s dissent, when this need justice most urgently, Judge time. case reached the Supreme Court in Gorsuch’s view of the law and his judi- The Supreme Court decision inter- Hobby Lobby, which Justices Kagan, cial philosophy will make a world of preted a Federal law that fell within Sotomayor, and Breyer joined, did as- difference. The working families, the jurisdiction of the committee on sess the real world impact this decision women, differently abled, people of which I sat. George Miller, then chair would have on women. Justice Gins- color, the LGBTQ community, immi- of the committee, immediately an- burg wrote: ‘‘The exemption sought by grants, students, seniors, and our Na- nounced that we would change the law Hobby Lobby and Conestoga would . . . tive peoples are the people who will be to be interpreted the way it had been deny legions of women who do not hold impacted by the decisions a Justice before the Court applied their own nar- their employers’ beliefs access to con- Gorsuch would make. row and wrong interpretation. traceptive coverage.’’ Today, April 4, is Equal Pay Day, We passed the Lilly Ledbetter Fair In the Tenth Circuit’s opinion, which which means that it took women until Pay Act with a Democratic Congress in Judge Gorsuch joined, and in his own

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.025 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2195 concurrence, Judge Gorsuch showed Looking at that speech, it is clear Court, he did not go further and ac- grave concern with the potential ‘‘com- she meant to instill confidence in knowledge that the Constitution itself plicity’’ of the Hobby Lobby’s owners— young women and a sense that they, protects the right to make intimate these are the corporate owners—in vio- too, needed to participate in a life of and personal decisions. lating their beliefs, but he gave little the law; that the law was not—is not— In the time since Casey, the Court or no consideration to the compelling a place that excludes them. Senate Re- has relied on the protection for inti- interest of these women and the thou- publicans turned these words into a mate and personal choices to decide sands of female employees in having baseless attack to undermine Justice many nonabortion cases, such as the access to contraceptive care. Sotomayor’s well-earned reputation of Obergefell case, which recognized the Judge Gorsuch failed to address our fairly applying the law in thousands of right to marriage equality. We need a concerns during this hearing. Rather cases that had appeared before her. She Justice who understands and respects than recognizing the impact of his de- had been on the bench for 25 years, but the importance of this right—that it is cision on thousands of women who they focused on two words in one the Constitution that provides protec- work at Hobby Lobby and millions speech she gave during that time. tions for intimate and personal deci- more who work at companies all across Many Republicans then cited that sions. Otherwise, I am concerned he the country, Judge Gorsuch repeatedly speech to justify their opposition to will join the Court and chip away at said that if we didn’t like what the her nomination. those protections. Court was doing, or what he was doing, So when I hear my Republican col- Judge Gorsuch said that the judicial then Congress could change the law—as leagues touting their fairness toward robe changes a person. This was an- though that is such a simple thing. President Obama’s Supreme Court other way of telling us to ignore his This is not an academic exercise. nominee, I recall not just their omit- own strongly held and frequently ex- This is about the real world impact, ting any mention of Justice Merrick pressed personal views and, indeed, his not just of the Hobby Lobby decision Garland—the well-credentialed, well- judicial philosophy, which he contin- but of decisions a Justice Gorsuch respected moderate whom they blocked ued to not discuss. Of course, if judicial would make for the next 25 years, from from even having a hearing—I also re- philosophy didn’t matter, Senate Re- which there is no appeal. member Justice Sotomayor. I remem- publicans would not have engaged in Judge Gorsuch’s nomination raises so ber my Republican colleagues ignored the unprecedented act of blocking many serious concerns for women her unanimously ‘‘well qualified’’ rat- President Obama’s nominee Merrick across the country that I look forward ing from the American Bar Associa- Garland, a well-credentialed, well-re- to addressing over the next hour. spected, moderate nominee, from even During his hearing, Judge Gorsuch tion, her long record, and the tremen- having a hearing. They held the seat told us time and again to focus on his dous chorus from the right and the left whole record as a judge and not on cer- supporting her historic nomination. open to be filled by the next President, If confirmed, Judge Gorsuch’s deci- tain cases or things he wrote in books, preferably, a Republican one. sions will have a profound impact on In Neil Gorsuch, the Republicans got articles, or emails. In fact, my Republican colleagues the country, not just during his time a nominee selected by rightwing orga- have suggested that we are being un- on the Court but for generations to nizations that are counting on Judge fair when we try to look at the things come. This is particularly true for Gorsuch to rule in accordance with he has said and written in order to dis- women whose constitutional right to their very conservative views, which cern how Judge Gorsuch would ap- an abortion will be threatened by a put corporate interests over individual proach cases if confirmed. We wanted Justice Gorsuch. During the Presi- rights. That is why, to put it simply, to get at his heart. We wanted to get at dential campaign, Donald Trump laid who wears the judicial robe matters. his judicial philosophy. out his litmus test for nominating a Just as the Federalist Society and Some of my colleagues have even Justice. He said, for example, that the Heritage Foundation want Judge gone so far as to suggest that by rais- overturning Roe v. Wade ‘‘will happen Gorsuch to wear the robe, the people ing legitimate questions about Judge automatically, in my opinion, because who come before the bench—the mil- Gorsuch’s record as part of our advice I am putting pro-life justices on the lions of hard-working Americans whose and consent responsibility, we are at- court.’’ That was Candidate Trump’s lives will be affected by the Court’s de- tacking judges in the same way Presi- well-articulated litmus test, which he cisions—want a Justice who will pro- dent Trump has done during his 21⁄2 followed through on in his nomination tect their rights. They want a Justice months in office. This is fundamentally of Judge Gorsuch. who will wear the robe that protects wrong and deeply misleading. It is like During his hearing, my colleagues their rights. comparing apples and oranges. That and I tried to get a better sense of how I note that I am joined by Senator comparison doesn’t begin to describe and whether Judge Gorsuch would fol- DUCKWORTH of Illinois, and I yield time the difference. low the President and uphold this con- to her. Two weeks ago, in the middle of stitutionally protected right. Based on The PRESIDING OFFICER. The Sen- Judge Gorsuch’s confirmation hearing, his lack of response, I am skeptical ator from Illinois. President Trump renewed his vicious that a Justice Gorsuch would uphold Ms. DUCKWORTH. Mr. President, and unwarranted attack on Judge Wat- this critical right that generations of today on Equal Pay Day, we are re- son of Hawaii for blocking the Presi- women fought to preserve. minded of the fact that women across dent’s unconstitutional Muslim ban. In 1992, in Casey, the Supreme Court the country still make less money for Although I wasn’t then in the Senate, reaffirmed the core holding of Roe that the exact same work as their male I recall that during Justice the right to an abortion is constitu- counterparts, which is especially prob- Sotomayor’s confirmation hearing, Re- tionally protected. The Court held that lematic for women of color, for whom publican after Republican ignored al- these decisions are protected because the gap is even wider. We are also re- most the entirety of her 25 years on the they are among ‘‘the most intimate minded of how vital our court system Federal bench. Instead, they focused, and personal choices a person makes in is to the future of equal opportunity in question after question at her con- a lifetime.’’ for women in America and to the fu- firmation hearing, on a gross In his 2006 book on the future of as- ture of our working families. misreading of one speech—one speech— sisted suicide, Judge Gorsuch argued The next Supreme Court Justice will she gave to a group of young women that Casey should be read more as a de- enter the Court at a critical moment about the value of diversity on the cision based merely on respect for for women’s rights—a moment which bench. precedent rather than based on the rec- could change the course of reproduc- Republicans on the Judiciary Com- ognition of constitutional protections tive rights, voting rights, disability mittee and in the Senate twisted her for ‘‘personal autonomy’’ or for ‘‘inti- rights, and civil liberties in our Nation phrase ‘‘wise Latina.’’ That is a term mate or personal’’ decisions. When I for generations to come. So naturally, she used in her speech. They twisted asked Judge Gorsuch about this, al- I, much like my colleagues on the Judi- her use of the phrase ‘‘wise Latina’’ though he recognized that Roe and ciary Committee, wanted to know how well beyond meaning. Casey are precedents of the Supreme these critical issues fit in Judge

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I am also troubled by to me that he explain his judicial phi- nomination of Judge Neil Gorsuch to his rulings on disability rights that losophy, that he explain to me his view the U.S. Supreme Court. would jeopardize access to public edu- on so many of these critical issues. As we know, Judge Gorsuch went cation for students with disabilities, But then, during 4 days of hearings through 4 days of hearings in front of which is particularly alarming for the before the Judiciary Committee, Judge the Senate Judiciary Committee, and 27 million women in America who live Gorsuch had the chance to clarify the here is what we learned: We learned with a disability. philosophy behind his past rulings—to that Judge Gorsuch refused to answer It is personal for me. As an American explain how his rulings may reveal his the most basic of questions. He ini- living with disabilities, my life isn’t judicial philosophy as a Supreme Court tially even refused to share his views like those of many of my colleagues in Justice. However, instead of addressing on Brown v. Board of Education. We Congress. Getting around can be dif- these concerns, he dodged these ques- learned that Judge Gorsuch has a deep- ficult. I can’t always get into res- tions—questions on some of the most ly conservative worldview. And we taurants or other public spaces, even important issues of our time. He learned that Judge Gorsuch interprets here in the Capitol. I have to spend a wouldn’t even express clearly his views the law in a theoretical bubble, com- lot of time planning how to get from on Roe v. Wade. The American people pletely detached from the real world— one place to another. as he puts it, ‘‘focusing backward, not I understand that not everyone simply deserve better than that. Earning a lifetime appointment to forward.’’ If Judge Gorsuch joins the thinks about these things, and for most of my adult life, I didn’t either. But the Supreme Court requires much more U.S. Supreme Court, his narrow ap- after I became injured in combat in than a genial demeanor and an ability proach would do real harm to real peo- Iraq, I learned how important the pro- to artfully dodge questions. It requires ple, especially the women of America. America deserves a Supreme Court tections of laws like the Americans honesty in answering even the tough- with Disabilities Act and Individuals est questions. That is why I cannot Justice who will protect a woman’s with Disabilities Education Act are to vote to confirm Judge Gorsuch. right to make her own decisions about ensuring that millions of Americans I take seriously my constitutional her own health. Judge Gorsuch will with disabilities can live and thrive responsibility as a U.S. Senator to not. Judge Gorsuch carefully avoided with dignity. Without them, Americans offer the President my informed con- speaking about abortion, but he has like me wouldn’t be able to get to sent, and it is clear that Judge Gorsuch clearly demonstrated a hostility to work, go to school, hold a job, pay has not provided some of the most es- women’s access to healthcare. taxes, go shopping, or do any of the sential information needed to grant Last year, when the court he sits on things most of us take for granted. him a lifetime appointment to our Na- sided with Planned Parenthood, Judge That is why I am speaking out today, tion’s highest Court. Therefore, I am Gorsuch took the highly unusual step because it matters deeply to me that voting no on his nomination and sup- of asking the court to hear the case our next Supreme Court Justice under- porting continued debate on the sub- again. Judge Gorsuch determined that a stand just how vital these protections ject because I can’t vote for a nominee 13,000-person, for-profit corporation are for Americans living with a dis- when so many questions are left unan- ability. It is not just a disabilities swered. was entitled to exercise the same reli- rights issue; it is a civil rights issue. Mr. President, I yield the floor. gious beliefs as a person. That meant Similarly, a woman’s access to The PRESIDING OFFICER. The Sen- the company did not have to provide healthcare is also a civil rights issue, ator from Hawaii. employees birth control coverage and and it is an issue that affects every sin- Ms. HIRONO. Mr. President, I am could impose the company’s religious gle American. When a woman can’t get joined by my colleague from Cali- beliefs on all of its female employees. I the care she needs, her family suffers, fornia, Senator HARRIS. ask my colleagues, why does Judge and when her family suffers, her com- The PRESIDING OFFICER. The Sen- Gorsuch seem to believe that corpora- munity suffers and our Nation suffers. ator from California. tions deserve full rights and protec- That is why I find it so deeply trou- Ms. HARRIS. Mr. President, I thank tions but women don’t? bling that Judge Gorsuch has time and the Senator from Illinois for her im- As we mark Equal Pay Day today, again actively worked against repro- portant remarks just now and for her Americans deserve a Supreme Court ductive justice. In a dissenting opinion, leadership and her friendship to so Justice who will protect the rights of he argued in favor of defunding many of us. She has been an extraor- women in the workplace. Judge Planned Parenthood in Utah based on dinary hero of mine, personally, and so Gorsuch won’t. In employment dis- evidence that other judges deemed as many of us look to her leadership. So I crimination cases, Judge Gorsuch has false. In the Hobby Lobby case, he thank her—and for her speaking on the consistently sided with companies made it clear that he favors the reli- nomination of Judge Gorsuch. against their employees. These em- gious beliefs of corporations over the Across the street from this Chamber ployees include women like Betty Pin- rights of women to make their own stands the U.S. Supreme Court. Above kerton. The facts of the case were un- choices about their bodies. its doors are the words ‘‘Equal Justice disputed. Her boss repeatedly asked her What is worse, that isn’t the only Under Law.’’ As Senators, we have a about her sexual habits and breast size time Judge Gorsuch ruled to put cor- solemn responsibility to ensure that and invited her to his home—then fired porate rights over human rights. You every man and woman who sits on that her when she reported his sexual har- may have heard about a case in my Court upholds that ideal. As a U.S. assment. Judge Gorsuch ruled against home State of Illinois in which Judge Senator, I take that responsibility ex- Betty. Why? Well, part of his justifica- Gorsuch ruled in favor of the rights of tremely seriously. tion that he offered was that she wait- a trucking company over the rights of Almost two decades after the Su- ed 2 months before reporting the har- an employee in grave danger through preme Court’s landmark ruling in assment. no fault of his own. That is deeply Brown v. Board of Education, I was Americans deserve a Supreme Court troubling to me. He also dissented from part of only the second class to inte- Justice who upholds the rights of all a ruling giving a female UPS driver grate the Berkeley, CA, public schools. women, including transgender women. just the opportunity—the oppor- If the Court had ruled differently, I Judge Gorsuch won’t. When a tunity—to prove sex discrimination, likely would not have become a lawyer transgender inmate claimed that the and then again on a decision to fine a or a prosecutor or a district attorney prison’s practice of starting and stop- company that failed to properly train a or the Attorney General of California, ping her hormone treatment was a vio- worker, resulting in that worker’s and I certainly would not be standing lation of her rights, Judge Gorsuch dis- death. here today as a U.S. Senator. agreed.

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.028 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2197 As the National Women’s Law Center preme Court nominee does not have was on that list, and his nomination is observed, his ‘‘record reveals a trou- enough support to be confirmed, the so- their reward. bling pattern of narrowly approaching lution is to pick a new nominee, but Even before he became a Federal the legal principles upon which every- Republicans in the Senate are threat- judge, Judge Gorsuch fully embraced day women across the Nation rely.’’ ening to pursue a different path. They rightwing, pro-corporate views. He ar- They write that his appointment are considering breaking the Senate gued that it should be harder, not easi- ‘‘would mean a serious setback for rules to force the nominee onto the Su- er, for shareholders who got cheated to women in this country and for genera- preme Court anyway. bring fraud cases to court. tions to come.’’ I will be honest. I think it is crazy On the bench, Judge Gorsuch’s ex- But judging by his record, if Judge that we are considering confirming a treme views meant giant corporations Gorsuch becomes Justice Gorsuch, lifetime Trump nominee to the Su- could run over their workers. In Hobby women won’t be the only ones facing preme Court at a moment when the Lobby, when he had to choose between setbacks. Take Luke, a young boy with President’s campaign is under the the rights of corporations and the autism whose parents sought financial cloud of an active, ongoing FBI coun- rights of women, Judge Gorsuch chose assistance after switching him from terintelligence investigation that corporations. In consumer protection public school to a school specializing in could result in indictments and ap- cases, when he had to choose between autism education. Judge Gorsuch ruled peals, that will go all the way to the the rights of corporations and the that the minimal support Luke re- Supreme Court, so that Trump’s nomi- rights of the consumers they cheated, ceived in public school was good nee could be the deciding vote on Judge Gorsuch chose corporations. In enough. People in the autism commu- whether Trump or his supporters broke discrimination cases, when he had to choose between the rights of corpora- nity were up in arms. And in the mid- the law and will be held accountable. tions and the rights of employees who dle of a Senate hearing 2 weeks ago, That is nuts. I believe we should tap had been discriminated against, Judge the Supreme Court unanimously ruled the brakes on any nominee until this Gorsuch chose corporations. Time after that Judge Gorsuch was wrong on the investigation is concluded. time, in case after case, Judge Gorsuch law. But even if none of that were hap- showed a remarkable talent for cre- Consider Alphonse Maddin. Maddin pening, I would still oppose the con- atively interpreting the law in ways was a trucker who got stuck on the firmation of Neil Gorsuch. My objec- that benefited large corporations and road in subzero temperatures—minus tion is based on Judge Gorsuch’s that harmed working Americans, 27 degrees, as he recalls—and aban- record, which I have reviewed in detail. Judge Gorsuch’s nomination is the lat- women, children, and consumers. doned his trailer to seek help and save When it comes to the rules that pre- est step in a long political campaign by his life. For leaving the trailer, he was vent giant corporations from polluting rightwing groups and their billionaire fired. Judge Gorsuch wrote that the our air and our water, from poisoning backers to capture our courts. company was entitled to fire Maddin our food, from cheating hard-working Over the last 30 years, as the rich for not enduring the cold and for not families, Judge Gorsuch believes that have gotten richer and working fami- staying in his freezing truck. it should be easier, not harder, for lies have struggled to make ends meet, Then there is Grace Hwang, a pro- judges to overturn those rules—a view the scales of justice have been weight- fessor diagnosed with cancer. She sued that is even more extreme than that of ed further and further in favor of the when her university refused to provide the late Justice Scalia. the medical leave her doctor rec- wealthy and the powerful. Those pow- Republicans assert that Judge ommended. Judge Gorsuch called the erful interests have invested vast sums Gorsuch is a fair, mainstream judge, university’s decision ‘‘reasonable’’ and of money into reshaping the judiciary, but rightwing groups and their rejected her lawsuit. Sadly, Grace died and their investment has paid off in wealthy, anonymous funders picked last summer. spades. Recent Supreme Court deci- him for one reason: because they know Judge Gorsuch has Ivy League cre- sions have made it easier for corporate he will be their ally. And that is not dentials, but his record shows he lacks giants that cheat their customers to how our court system is supposed to sound judgment to uphold justice. He avoid responsibility. Recent Supreme work. Judges should be neutral arbi- ignores the complexities of human Court decisions have let those same ters, dispensing equal justice under beings—the humiliating sting of har- corporations and their billionaire in- law. They should not be people hand- assment, the fear of a cancer patient or vestors spend unlimited amounts of picked by wealthy insiders and giant a worker who feels his life is in danger. money to influence elections and ma- corporations. In short, his rulings lack a basic sense nipulate the political process. Recent For the working families struggling of empathy. Judge Gorsuch under- Supreme Court decisions have made it to make ends meet, for people des- stands the text of the law, to be sure, easier for businesses to abuse and dis- perately in need of healthcare, for ev- but he has repeatedly failed to show criminate against their workers. eryone fighting for their right to vote, that he fully understands those impor- Giant corporations and rightwing for disabled students fighting for ac- tant words: ‘‘equal justice under law.’’ groups have notched a lot of big wins cess to a quality education, for anyone For the highest Court in the land, I in the Supreme Court lately, but they who cares about our justice system, say, let’s find someone who does. know their luck depends on two there is only one question that should I yield the floor. things—first, stacking the courts with guide us in evaluating a nominee to sit The PRESIDING OFFICER (Mr. their allies, and second, stopping the on any court: whether that person will STRANGE). The Senator from Hawaii. confirmation of judges who don’t suffi- defend equal justice for every single Ms. HIRONO. Mr. President, I thank ciently cater to their interests. That is one of us. Judge Gorsuch’s record an- my colleague from California, Senator part of the reason they launched an all- swers that question with a loud no. HARRIS, for her eloquent and persua- out attack on fair-minded mainstream Republicans have a choice. They can sive remarks. judges—judges like Merrick Garland, a tell President Trump to send a new I am now joined by my colleague, the thoughtful, intelligent, fair judge to nominee—a mainstream nominee who Senator from Massachusetts. I yield to fill the open vacancy on the Supreme can earn broad support—or they can her. Court. jam through this nominee. If they do The PRESIDING OFFICER. The Sen- These very same corporate and right- jam through Judge Gorsuch, the Re- ator from Massachusetts. wing groups handed Donald Trump a publicans will own the Gorsuch Court Ms. WARREN. Thank you to the Sen- list of acceptable people to fill the Su- and every extreme 5-to-4 decision that ator from Hawaii for calling us here to- preme Court vacancy, and as a Presi- comes out of it. Republicans will own gether today. dential candidate, he promised to pick every attack on a woman’s right to Mr. President, it is clear that Presi- a Justice from their list. Who made it choose, on voting rights, on LGBTQ dent Trump’s nominee to the Supreme onto that rightwing list? People who, rights, on secret spending in our polit- Court, Neil Gorsuch, does not have unlike Judge Garland, displayed a suf- ical system, and on freedom of speech enough support in the Senate to be ficient allegiance to their corporate and religion. Republicans will be re- confirmed under our rules. When a Su- and rightwing interests. Judge Gorsuch sponsible for every 5-to-4 decision that

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.029 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2198 CONGRESSIONAL RECORD — SENATE April 4, 2017 throws millions of Americans under ities Education Act, better known as across the country today and for gen- the bus in order to favor the powerful, IDEA. This is remedial legislation that erations to come. moneyed few who helped put Judge protects the educational rights of spe- Like the overwhelming majority of Gorsuch on the bench. cial needs children. That is the popu- my Democratic colleagues, I have de- Right now, the Presidency is in the lation for which this law was enacted. cided to vote against Judge Gorsuch’s hands of someone who has shown con- Judge Gorsuch had a case before him, nomination, and I will be opposing a tempt for our Constitution, contempt and it was referred to by my colleague cloture motion ending debate. Now, I for our independent judiciary, con- from California. A young boy was not don’t take this decision lightly, but tempt for our free press, and contempt getting the kind of educational oppor- with the future of women’s health and for our moral, democratic principles. If tunities that he should have gotten rights and opportunity at risk, it is a ever we needed a strong, independent under IDEA, but Judge Gorsuch read decision I must make. Supreme Court with broad public sup- that remedial legislation, which should The Trump administration has bro- port—a Supreme Court that will stand be broadly interpreted to protect the ken nearly every one of its promises, up for the Constitution—it is now. class and the group that the law was but one it has certainly kept is its If ever there were a time to say that passed to help—he read it very, very promise to turn back the clock on our courts should not be handed over to narrowly. women’s progress. It is clear that Re- the highest bidder, it is now. And that He said that the school needed only publicans in Congress are committed to is why Judge Gorsuch should not be to provide ‘‘merely de minimus’’ edu- doing the same. Last week, just a few confirmed to sit on the Supreme Court cation for this child. He put in the days ago, Senate Republicans, with the of the United States. words ‘‘merely de minimus’’ effort on help of Vice President PENCE, over- I yield the floor. the part of the school to provide this turned a rule that prevents discrimina- The PRESIDING OFFICER. The Sen- young boy with educational opportuni- tion against family planning providers ator from Hawaii. ties. That was bad enough, but Judge based on the kinds of services they pro- Ms. HIRONO. Mr. President, I thank Gorsuch added the word ‘‘merely.’’ So vide to women. It was shameful and un- my colleague from Massachusetts for during the time of his hearing, the Su- precedented. her impassioned, well-reasoned, persua- preme Court, in a related—basically Now, not missing a beat, Congres- sional Republicans are already gearing sive remarks. the same law, IDEA, was at issue—and up to attach riders to our coming budg- All too often, Judge Gorsuch fixates the Supreme Court, while we were hav- et bills in order to cut off access to on what we call the plain meaning of a ing the hearing on Judge Gorsuch’s critical services at Planned Parent- word in the law and decides on his own nomination, unanimously overturned hood for millions of patients. There are meaning that he would give to that Judge Gorsuch’s standard of ‘‘merely similar attempts to undermine wom- word. Sometimes he will resort to the de minimus.’’ Even the Roberts Court en’s access to healthcare in cities and Dictionary Act or Webster’s dictionary found Judge Gorsuch’s standard of re- States nationwide, and more often to ascertain what he would consider view too limiting and too narrow. than we would like, the Supreme Court the plain meaning of the law, but what So the young boy in question—his fa- is going to be the place of last resort he doesn’t do time and again in very ther testified at the confirmation hear- for protecting women’s hard-fought important cases that impact lots of ing. I asked him what he was thinking lives is that he doesn’t look to the con- gains. as the decision of Judge Gorsuch came If the buck has to stop with the Su- text or the purpose of the law, to the down. He said he knew that this deci- preme Court on women’s health and point where sometimes his decisions sion would negatively affect hundreds rights, I do not want Judge Gorsuch are just bizarre and lack common and hundreds of special needs children anywhere near the bench. Time and sense. all across our country. again, Judge Gorsuch has sided with There was a reference made to the This is why I sought assurance from the extreme rightwing and against tens TransAm Trucking case where the Judge Gorsuch that he would be the of millions of women and men who be- truckdriver was in freezing weather. kind of Justice who understands, as he lieve that in the 21st century, women The brakes on his truck were not work- told me when I met with him, that the should be able to make their own ing properly, so he faced the choice of purpose of title III, which are the Fed- choices about their own bodies. freezing to death or doing something eral courts, is to protect the rights of Let me just give you a few examples. about it but then risking being fired. minorities. So I wanted reassurance When the Tenth Circuit ruled in the So he did something about it. He got from Judge Gorsuch during his hear- case of Burwell v. Hobby Lobby that a fired. ing. I tried time and again to get a woman’s boss could decide whether or Judge Gorsuch, in his reading—a sense of his heart, what his judicial not her insurance would include birth very, very narrow reading of a word in philosophy was. I was looking for the control, Judge Gorsuch did not just the applicable provisions—deemed that reassurance that he was the kind of agree; he thought the ruling should his firing was correct. He was asked by judge who understands the importance have gone further. Judge Gorsuch has Senator FRANKEN at the hearing: What of assuring that victims of discrimina- argued that birth control coverage in- would you have done if you had been in tion cannot only ask for but can also cluded in the ACA as an essential part that situation? There you are, you are receive protections from the courts and of women’s healthcare—one that has, about to freeze to death, and you have who demonstrates a commitment to by the way, benefited 55 million a truck that is not operable in a safe the Constitutional principles that pro- women—is a ‘‘clear burden’’ on employ- way unless you unhook the attachment tect the rights of women to make the ers that would not long survive. to it. What would you have done? intimate and personal decisions of When it comes to Planned Parent- Judge Gorsuch basically said: I don’t what to do with their own bodies. hood, he has already weighed in on the know what I would have done. I was Mr. President, I note that I am joined side of defunding our Nation’s largest not in his shoes. by my colleague from Washington provider of women’s healthcare. What What any of us would have said—of State, Senator MURRAY. I yield to her. was his reasoning? Judge Gorsuch course we would have done what the The PRESIDING OFFICER. The Sen- thought that in light of completely dis- truck driver did. But in his very nar- ator from Washington. credited sting videos taken by extreme row reading of the words of the applica- Mrs. MURRAY. Thank you, Mr. conservatives, women in the State of ble provision, he came to the decision President. Utah should have a harder time access- he did. That is why he could not re- I thank my colleague from Hawaii for ing the care they need. I should note spond to Senator FRANKEN. her really important statement on that just last week, the makers of It is particularly important that this. I come to the floor today to ex- those false videos received 15 felony Judge Gorsuch explain to us how he press my serious concerns, along with charges. would approach these kinds of cases. It other women from the Senate, about I also want to be clear, as well, about is particularly important in what I the nomination of Judge Neil Gorsuch what Judge Gorsuch’s nomination would describe as remedial legislation, for the Supreme Court, particularly could mean for a woman’s constitu- such as the Individuals with Disabil- about what it would mean for women tionally protected right to safe, legal

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.030 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2199 abortion services under the historic use of the word ended any discussion or and tolerant America that embraced ruling in Rowe v. Wade, which was just scrutiny of his record. my mother, my brothers, and me so reaffirmed last summer by this Court. Judge Gorsuch painted a picture for many decades ago when we immigrated In his nomination hearings, Judge us of the Court that is really straight to this country? These values seem too Gorsuch would not give a clear answer out of a Norman Rockwell painting. He often absent from Judge Gorsuch’s on whether he would uphold that rul- said during his hearing: ‘‘One of the record and from his view of the law and ing, which has meant so much to so beautiful things about our system of the Court. many women and families over the last justice is that any person can file a The central question for me in look- four decades. lawsuit about anything against anyone ing at Judge Gorsuch and his record Judge Gorsuch has donated repeat- at any time . . . and a judge, a neutral and listening carefully through 4 days edly to politicians who are dead set on and fair judge, will hear it.’’ of hearings was whether he would be a interfering with women’s constitu- Norman Rockwell painting—it is a Justice for all of us, not just one for tionally protected healthcare deci- wonderful idea that anybody can file a some of us. I came to the conclusion sions. He has even made deeply inac- claim to protect their rights or inter- that he would not be a Justice for all of curate comparisons between abortion ests. It is also a wonderful idea to as- us, so I oppose his nomination. and assisted suicide. sume that those claims will be heard I yield the floor. I remember the days before Rowe v. and ruled upon by neutral judges, ap- The PRESIDING OFFICER (Mr. Wade very clearly. I have heard the parently uninfluenced by their own JOHNSON). Under the previous order, stories of women faced with truly im- strongly held and frequently expressed the time until 5:30 p.m. will be con- possible choices during that time. personal views and judicial philosophy. trolled by the majority. Many of my Republican colleagues Women from all across the country The Senator from Iowa. have shared those deeply personal ex- have echoed this view and argued that Mr. GRASSLEY. Mr. President, I periences because they know what it Judge Gorsuch’s credentials should be have several of my colleagues on this would mean to go backward. enough—Columbia, Harvard. They side of the aisle who want to speak, but Lastly, attempts to control women’s argue that it is wrong or even unfair to I just want to take a minute and a half bodies are not always about reproduc- question how Judge Gorsuch might ap- or so to clarify some things I have tive rights. Sure enough, Judge proach the kinds of difficult issues that heard from the other side that need to Gorsuch is on the wrong side here as come before the Supreme Court. be counteracted. well. He concurred in a ruling against a Of course, if judicial philosophy did transgender woman who was denied not matter, then the Republicans First of all, I don’t know whether regular access to hormone therapy would not have engaged in the unprece- they mentioned the term ‘‘Ginsburg while she was in prison. This ruling re- dented act of blocking President rule,’’ but we do have this Ginsburg jected the idea that under our Con- Obama’s nominee—as I mentioned, rule that was set out a long time ago stitution, denying healthcare services Merrick Garland, a well-credentialed, when Judge Ginsburg came before the is cruel and unusual punishment. That well-respected moderate nominee— Senate for her confirmation. She said is not the kind of judgment I want to from even having a hearing. In fact, that you can’t comment on things that see on the bench, and I think most many of the Republican Senators did might come before the Court because families would agree. not even extend the courtesy of meet- obviously you would be violating judi- Families who have already done so ing with Judge Garland. They would cial ethics. Then I will comment on much to lead the resistance against not have held the seat open to be filled some things people have said about this administration and its damaging, by the appointee of a Republican Presi- Brown v. Board of Education. divisive agenda are fighting this nomi- dent, one selected for him by rightwing The very fact that Judge Gorsuch has nation as hard as they can. They know organizations. declined to offer his opinion on legal the Trump Presidency will be dam- When my colleagues and I asked issues that are likely to come before aging enough for 4 years, but Judge Judge Gorsuch about his judicial phi- the Supreme Court demonstrates what Gorsuch’s nomination will roll back losophy, he said that his words, his we should all expect of him: his judi- progress for women over a lifetime. views, his writings, and his clearly ex- cial independence. That is what we ex- I am proud to stand with them and do pressed personal views had no rel- pect of every judge. The judge’s deci- everything I can to make sure they are evance to what he would do as a Jus- sion not to offer his opinion on issues heard loud and clear here in the Sen- tice. He told us to look at his whole that may come before him is consistent ate. I oppose Judge Gorsuch’s nomina- record, so I examined his whole record. with judicial ethics rules and is con- tion in light of everything it would I saw in that record too little regard sistent with what I have referred to al- mean for women. for the real-world impact of his deci- ready as the Ginsburg rule or the Gins- I yield the floor. sions. I saw a refusal to look beyond burg standard, which all Supreme The PRESIDING OFFICER. The Sen- the words to the meaning and intent of Court nominees in recent memory have ator from Hawaii. the law, even when his decisions lacked followed. As Justice Ginsburg said, Ms. HIRONO. Mr. President, I thank common sense, as in the frozen truck commenting on these issues is not fair my colleague, Senator MURRAY, our as- driver case, and far too often, to the to parties who might come before the sistant Democratic leader, for her con- benefit of big corporations and against Court in future years. That is what tinuing, longstanding leadership on be- the side of the little guy. Judge Gorsuch said as well. half of women and families in our coun- The decisions of judges have real- Questions to this end are nothing try. world impacts for millions of people be- more than an attempt to compromise Over the past hour, my colleagues yond the parties in a particular case. the judge’s independence, and he and I have laid out a fair case against This is especially true of the Supreme showed us that he wasn’t going to have confirming Judge Gorsuch to the U.S. Court, which issues decisions that his independence compromised because Supreme Court. As we approach a vote don’t just reach those in the case in he is going to do what judges should on his confirmation, I encourage my front of them—the frozen trucker, the do: look at the facts of a case, look at colleagues to scrutinize Judge women who work at Hobby Lobby faced the law, and make those decisions Gorsuch’s judicial philosophy, even as with a lack of critical healthcare, the based only on that and send no signals he refused to outline for us or describe special needs child entitled to edu- whatsoever ahead of time of how he for us what that philosophy is. But we cational opportunities under the IDEA. might view something. have come to certain conclusions based The Supreme Court does not just inter- Along these lines, my colleagues said on 4 days of hearings. During his hear- pret laws; the Supreme Court shapes that the judge should have announced ing, Judge Gorsuch refused, as they our society. that he agreed with the ruling in say, time and again to answer our Will we be just? Will we be fair? Will Brown v. Board of Education but didn’t questions on his judicial philosophy or America be a land of exclusivity for offer enough information about this his approach to the law. He insisted the few or land of opportunity for the opinion in an appropriate discussion of that he was merely a judge, as if the many? Will we be the compassionate precedent.

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.032 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2200 CONGRESSIONAL RECORD — SENATE April 4, 2017 I will quote our nominee. He said likes the result or not. Judge Gorsuch the law as best he can wherever it might this: ‘‘Senator, Brown v. Board of Edu- understands this. lead. cation corrected an erroneous decision, A lot of people from across the polit- I could go on. The voices raised in a badly erroneous decision, and vindi- ical spectrum have spoken up in favor support of Judge Gorsuch are numer- cated a dissent by the first Justice of Judge Gorsuch’s nomination, and ous. Harlan in Plessy v. Ferguson, where he one thread that runs through their Unfortunately, no amount of testi- correctly identified that separate to comments is their confidence that they mony in favor of Judge Gorsuch seems advantage one race can never be can trust Judge Gorsuch to apply the to be enough for Democrats. Senate equal,’’ end of the quote of our nomi- law as it is written. Democrats are apparently determined nee. So the judge spoke about prece- Here is what Neal Katyal, an Acting to oppose Judge Gorsuch despite the dent very appropriately. He answered Solicitor General for President Obama, fact that they are struggling to find our questions in a manner consistent had to say about Judge Gorsuch: any good reason to justify their opposi- with his obligations and with past I have no doubt that if confirmed, Judge tion. nominees. Gorsuch would help to restore confidence in The Senate minority leader came One more point. I keep hearing com- the rule of law. His years on the bench reveal down to the floor on March 23 to an- plaints that the judge won’t make a a commitment to judicial independence—a nounce his determination to vote commitment to follow Roe v. Wade, record that should give the American people against Judge Gorsuch, and he urged but my colleagues’ requests really boil confidence that he will not compromise prin- his colleagues to do the same. Why? ciple to favor the president who appointed Well, apparently the Senate minority down to a quest for a promise to reach him. results that they want. They demand leader is not convinced that Judge A former law partner and a friend of adherence to Roe v. Wade on the one Gorsuch ‘‘would be a mainstream jus- Judge Gorsuch’s—a friend who de- hand and a promise to overrule Citi- tice who could rule free from the biases scribes himself as ‘‘a longtime sup- zens United on the other hand, as ex- of politics and ideology.’’ That is right. porter of Democratic candidates and amples. Asking the judge to make com- Despite the fact that everyone—liberal progressive causes’’—had this to say and conservative—seems to describe mitments about precedent is inappro- about Judge Gorsuch: fairness as one of Judge Gorsuch’s dis- priate. I have said this so many times, tinguishing characteristics, the Senate and my colleagues will repeat it many Gorsuch’s approach to resolving legal prob- lems as a lawyer and a judge embodies a rev- minority leader is not convinced the times as well. It compromises the erence for our country’s values and legal sys- judge will be able to rule without bias. judge’s independence. tem. . . . I have no doubt that I will disagree He is worried that Judge Gorsuch won’t Instead of being beholden to the with some decisions that Gorsuch might be a mainstream judge. President, my colleagues would have render as a Supreme Court justice. Yet, my Well, over the course of 2,700 cases on the judge be beholden to them. This hope is to have justices on the bench such as the Tenth Circuit, Judge Gorsuch has nominee isn’t going to be beholden to a Gorsuch . . . who approach cases with fair- ness and intellectual rigor and who care been in the majority 99 percent of the President, and he is not going to be be- time—99 percent. In 97 percent of those holden to any Senator because if he did about precedent and the limits of their roles as judges.’’ 2,700 cases, those opinions were unani- that, he would be compromising his mous. I would like the minority leader views. Again, that is from a self-described ‘‘longtime supporter of Democratic to explain how exactly a judge who is I yield the floor. in the majority 99 percent of the time The PRESIDING OFFICER. The Sen- candidates and progressive causes.’’ is out of the judicial mainstream. Is ator from South Dakota. During his years on the bench, Judge the minority leader trying to suggest Mr. THUNE. Mr. President, 2 months Gorsuch has had a number of law that all of the judges on the Tenth Cir- ago, the President nominated Judge clerks. On February 14, every one of cuit, including the ones appointed by Neil Gorsuch, a judge on the Tenth Cir- Judge Gorsuch’s former clerks, except Democrats—which, I might add, is a cuit Court of Appeals, to the Supreme for two who are currently clerking at majority on the circuit—are extrem- Court. This week, we will be voting on the Supreme Court, sent a letter on his nomination to the chairman and rank- ists? his confirmation. The fact is, Democrat opposition to ing member of the Senate Judiciary I want to say that I am grateful to Judge Gorsuch has nothing to do with Committee. Here is what they had to my colleague, the senior Senator from his qualifications. Let’s just get it out say: Iowa, for his leadership during this there. I doubt that any of my col- process and for getting this nomination Our political views span the spectrum . . . leagues on the other side of the aisle to the floor. We are fortunate to have but we are united in our view that Judge really think that Judge Gorsuch is out Gorsuch is an extraordinary judge. . . . him as chairman of the Judiciary Com- of the mainstream or that he lacks the mittee. Throughout his career, Judge Gorsuch has devoted himself to the rule of law. . . . As qualifications of a Supreme Court Jus- We have before us a supremely quali- tice. No, the truth is that Democrats fied candidate for the Supreme Court. law clerks who have worked at his side, we know that Judge Gorsuch never resolves a are opposing Judge Gorsuch because Judge Gorsuch has a distinguished re- case by the light of his personal view of what they are mad that it is not a Demo- sume. He is widely regarded as a bril- the law should be. Nor does he ever bend the cratic President making the nomina- liant and thoughtful jurist. Most im- law to reach a particular result that he de- tion. They can’t accept that they lost portantly, however, he is known for his sires. the election, so they are going to op- impartiality and his absolute commit- For Judge Gorsuch, a judge’s task is not to pose any nominee, no matter how ment to the rule of law. Judge Gorsuch usurp the legislature’s role; it is to find and apply the law as written. That conviction, qualified. understands that the job of a judge is It is extremely disappointing that to apply the law as it is written—and rooted in his respect for the separation of powers, makes him an exemplary candidate Democrats plan to upend a nearly 230- here is the fundamental thing—even to serve on the nation’s highest court. year tradition of approving Supreme when he disagrees with it. Again, that is the unanimous opinion Court nominees by a simple majority ‘‘A judge who likes every outcome he vote simply because they can’t accept reaches is very likely a bad judge.’’ of 39 of Judge Gorsuch’s former law clerks whose political views, in their the results of an election. Judge Gorsuch has said that more than Democrats have no plausible reason once. Why? Because a judge who likes own words, ‘‘span the spectrum.’’ E. Donald Elliott, an adjunct pro- to offer for opposing this supremely every outcome he reaches is likely qualified nominee. I hope that a suffi- making decisions based on something fessor at Yale Law School, had this to say about Judge Gorsuch: cient number of Senate Democrats will other than the law. That is a problem think better of their opposition and Judge Gorsuch’s judicial philosophy isn’t because there is no such thing as equal vote—when we have that opportunity protection or equal justice when judges mine . . . but among judicial conservatives, Judge Gorsuch is as good as it possibly gets. later this week—to confirm Judge make decisions based on their personal . . . Judge Gorsuch tries very hard to get the Gorsuch to the Supreme Court. feelings about a case instead of based law right. He is not an ideologue, not the Mr. President, I yield the floor. upon the law. A judge’s job is to apply kind to always rule in favor of businesses or The PRESIDING OFFICER. The Sen- the law as it is written, whether he against the government. Instead, he follows ator from Louisiana.

VerDate Sep 11 2014 03:45 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.034 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2201 Mr. KENNEDY. Mr. President, there the ‘‘big guy,’’ the ‘‘little guy,’’ the he only made that decision because he are, of course, two issues before the corporation, the consumer, the em- believed that was what the statute con- Senate with respect to Judge Neil ployer, the employee. The suggestion trolling the facts of the case required— Gorsuch. The first issue is simply, was made that Judge Gorsuch didn’t a statute that was passed by a legisla- should or should not Neil Gorsuch be vote enough for the little guy or little tive body duly authorized by the people confirmed as an Associate Justice to gal, for whatever that means. What that make the law. Unlike our courts, the U.S. Supreme Court? There is also struck me when he answered those which are supposed to interpret the a second issue, and the second issue is, questions was that we were supposed to law, Judge Gorsuch did not decide the Should the Senate even be allowed to be talking about the faithful applica- case the way he did because he didn’t vote? tion of justice. Now, I was taught in sympathize with the trucker. He de- Those two questions are both impor- law school that Lady Justice is sup- cided that case the way he did because tant and interrelated. I want to talk posed to be blind, that neither the he was doing his best to accurately about the first one first. wealth nor the power nor the status of apply the law, as best he understood it, I sit on the Judiciary Committee. We the parties should matter. That is why, to the facts before him. Once again, heard last week—2 weeks ago—about 20 in the picture that we see so often of that is what is called justice—blind to hours of testimony from Judge Lady Justice, she is blindfolded. She the parties. Gorsuch. I think he answered about 200 isn’t looking at the parties at all to see Actually, Judge Gorsuch has ex- questions in writing. One of the objec- whether they are wealthy or not so plained himself and what he thinks tions offered by our friends on the wealthy. She isn’t looking at the par- about decisions such as this. He did it other side of the aisle, the Democratic ties to see whether they are a corpora- in another case that I will talk about Party, was that Judge Gorsuch refused tion or a consumer or what race they in a moment. Judge Gorsuch said: to answer some of the questions. Now are or what gender they are or what Often enough the law can be ‘‘a[n] ass— that is just not accurate. part of the country they are from. a[n] idiot’’— Many of the questions that were Lady Justice is supposed to be blind be- Quoting, of course, Charles Dickens— asked of the judge by both Republicans cause we are a nation of laws, not men. and there is little we judges can do about it, and Democrats were fair questions— Of all the places in our country, an for it is (or should be) emphatically our job some of them, not so much. American court of law—and I am very to apply, not rewrite, the law enacted by the Judge Gorsuch was asked, in effect: proud of this—is supposed to be the people’s representatives. Indeed, every judge What is your position on abortion? How place of last resort, where you can who likes every result he reaches is very will you vote? come and get a fair shake. That is how likely a bad judge, reaching for results he He was asked: How will you vote on good judges operate. They give every- prefers rather than those the law compels. gun control? body a fair shake. A good judge is sup- Now, that statement came from the He was asked: How would you vote on posed to make his or her decisions second case I referenced. It was a case cruel and unusual punishment, the based on the law, not the parties. Good called A.M. Holmes. In A.M. Holmes, a Eighth Amendment? judges are supposed to be impartial—to 13-year-old seventh grader was arrested He was asked how he would vote on call it like they see it, to call the balls for fake burping repeatedly in class. questions dealing with the Tenth and strikes—and that is exactly what The majority said it was OK for him to Amendment. He didn’t answer those Neil Gorsuch has done throughout his be arrested and that, when his family questions, and then he was criticized entire career. sued the police officer, the police offi- for not answering those questions. He I can promise that, as I sit on the Ju- cer enjoyed qualified immunity. didn’t answer those questions because diciary Committee, if any President, Judge Gorsuch dissented. This time he couldn’t. He is a sitting judge of the whether he is a Republican or Demo- he ruled for the little guy, literally and U.S. Court of Appeals for the Tenth crat, ever brings a nomination before figuratively. Judge Gorsuch said: ‘‘In Circuit. Let me read to you canon the Judiciary Committee when I am on my opinion, reading the statute passed 3(a)(6) of the Code of Conduct for that committee and that nominee by the legislature, this young man’s United States Judges. It states: ‘‘A starts talking about the wealth or the family can file this lawsuit because judge should not make public comment status or the power of the parties and disciplining a 13-year-old 7th grader for on the merits of a matter pending or how it will influence or not influence fake burping in class by arresting him impending in any court.’’ his decision, suggesting that will make instead of disciplining him is a bridge Let me read you rule 2.10(B) of the a difference, I will vote against that too far.’’ American Bar Association Model Code nominee—I don’t care who nominates Now, once again, we had a little guy of Judicial Conduct. It provides, and I him—every single time, because that is versus the big guy. This time Judge quote: ‘‘A judge shall not, in connec- not American justice. Gorsuch ruled for the little guy. But tion with cases, controversies, or issues We talked about two cases in par- again, we have to look beyond the re- that are likely to come before the ticular, and the Presiding Officer has sult. Even though he ruled for someone court, make pledges, promises, or com- probably heard them talked about here we can all sympathize with, Judge mitments that are inconsistent with on the floor. On the surface they don’t Gorsuch didn’t base his decision on the impartial performance of the adju- seem to be related. Judge Gorsuch that. He based his decision on a good- dicative duties of the judicial office.’’ ruled in both of these cases, but I think faith application of the statutes of the Now, say what you want about Mr. they interact in a very important way. facts controlling the case. He applied Gorsuch, but don’t criticize him for not They tell us that he doesn’t play poli- the law as written by the legislature. violating the oath of his office and not tics and he doesn’t rule for the big guy That is what legislatures do, and that making promises, pledges, or commit- just because he is a big guy or the lit- is what Congresses do. They make the ments, like a politician, on how he tle guy just because he is a little guy. law and judges interpret the law. To be would vote on the U.S. Supreme Court, The first case we heard a lot about blunt, that is what we want in a judge. because Justices are supposed to decide was a decision by Judge Gorsuch called I want a judge. I don’t want an ideo- the case on the merits. TransAm Trucking. You are going to logue. I am not interested in a judge As I mentioned, I watched Judge hear a lot about that case. In that case, who will use the judiciary to advance Gorsuch answer questions personally Judge Gorsuch made a decision that his own personal policy goals. I want a for over 20 hours. He was asked some was unfavorable to a trucker, and he judge who will apply the law as written other questions other than the ones I ruled in favor of the trucking com- by the legislature or, in the case of the have referenced, and I was intrigued by pany—little guy versus big guy. Judge Constitution, as written by the Fram- some of the questions that Judge Gorsuch ruled for the big guy, and it is ers of the Constitution, as best that Gorsuch was asked. My friends in the important to know why and to look at judge understands the law, not to try Democratic Party kept trying to draw the reasoning in that case and not just to reshape the law as he wishes it to distinctions with Judge Gorsuch be- the result. be. tween the parties in cases that he had During the discussion on the case, To just comment about the last ques- decided. My friends kept talking about Judge Gorsuch made it very clear that tion that I raised earlier, again, one

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.035 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2202 CONGRESSIONAL RECORD — SENATE April 4, 2017 issue is whether or not we should con- I believe that he is a qualified jurist who The filibuster has been permitted firm Judge Gorsuch to the Supreme will base his decisions on his understanding under Senate rules since early in the Court, but the second issue is whether of the law and is well respected among his 19th century. It is not a recent or a the Senate should even be allowed to peers. novel power. The cloture rule was vote at all. That is what this is all The senior Senator from West Vir- adopted 100 years ago. In other words, about when you distill it down to its ginia has noted: at any point in our history, a Senate basic essence. [Judge Gorsuch] has been consistently minority could have attempted to fili- We are going to hear a lot about clo- rated as a well-qualified jurist, the highest buster a Supreme Court nominee. They ture, and we are going to hear a lot rating a jurist can receive, and I have found had the tools. The rules permitted it. It him to be an honest and thoughtful man. about the nuclear option. But this is would have only taken one Senator— what it boils down to: Should we or The junior Senator from North Da- just one. Yet it never happened for a should we not even be able to be al- kota also praised Judge Gorsuch for his simple reason: self-restraint. While lowed to vote? ‘‘record as a balanced, meticulous, and written rules are important, sometimes Now I understand that reasonable well-respected jurist who understands the unwritten rules are even more so. people can disagree. I also understand the rule of law.’’ Habits, customs, mores, standards, tra- that unreasonable people can disagree, Remember, these admiring state- ditions, practices—these are the things and everybody in this body has a vote, ments all come from Democrats, and that make the world go round, in the and we all represent States. There are all of them support an up-or-down vote U.S. Senate no less than in the game of two Senators from every State—big on confirming Judge Gorsuch. life. Our form of self-government de- States and little States—and every- Even those who oppose Judge pends critically on this form of self- body is entitled to be able to vote his Gorsuch used to sing a different tune government. Let’s reconsider some re- or her conscience. But it is very, very about the standards for judicial con- cent nominees in light of these facts. important not only for the American firmation. Justice Clarence Thomas was prob- For instance, the senior Senator judicial system but for American de- ably the most controversial nomina- from California put it best when she mocracy that the Senate be allowed to tion in my lifetime, perhaps ever. He said: vote on Judge Gorsuch. was the subject of a vicious campaign So to my friends on the other side of I think, when it comes to filibustering a of lies and partisan smears—a ‘‘high- the aisle, I would say: Please allow us Supreme Court appointment, you really have tech lynching’’ in his words. He was to have something out there, whether it’s to vote. You can vote for or against gross moral turpitude or something that confirmed in 1991 by a bare majority of Judge Gorsuch. I will not second-guess comes to the surface. 52-to-48. Yet Justice Thomas did not your judgment if you act sincerely, and Speaking of a previous Republican face a filibuster. Not a single Senator I believe many of my colleagues are President’s nominee, she further said: tried to block the up-or-down vote on sincere. They are wrong, but they are his nomination—not Joe Biden, not Now, I mean, this is a man I might dis- sincere. But please allow the Senate to agree with. That doesn’t mean he shouldn’t Ted Kennedy, not Robert Byrd, not vote on this nomination. That is why I be on the court. John Kerry—not one. Why? Any one Senator could have demanded a cloture was sent to Washington. In fact, President Obama filibustered vote, could have insisted on the so- I yield the floor. a Supreme Court nomination while he called 60-vote standard and, perhaps, The PRESIDING OFFICER. The Sen- was a Senator, yet later expressed re- defeated Justice Thomas’s nomination, ator from Arkansas. gret over that decision. He said: Mr. COTTON. Mr. President, this but they did not because they re- week the Senate will fulfill one of our I think that, historically, if you look at it, spected two centuries of Senate tradi- regardless of what votes particular Senators most important responsibilities: advice have taken, there’s been a basic consensus, a tion and custom. and consent for a nominee to the Su- basic understanding, that the Supreme Court It was likewise with Justice Sam preme Court. The stakes don’t get is different. And each caucus may decide Alito, whose nomination unquestion- much higher than a lifetime appoint- who’s going to vote where and what but that ably shifted the Court’s balance to the ment to a court of final appeal, espe- basically you let the vote come up, and you right in 2006. He, too, received fewer cially if the court has presumed over make sure that a well-qualified candidate is than 60 votes for confirmation—58 to be the last two generations to take more able to join the bench even if you don’t par- exact—but he received 72 votes for clo- and more political and moral questions ticularly agree with him. ture. Here again, a large, bipartisan out of the hands of the people. Despite all of this, though, it appears majority upheld the Senate tradition President Trump has nominated that a radical Democratic minority in- and custom against partisan filibusters Judge Neil Gorsuch, a distinguished ju- tends to filibuster Judge Gorsuch’s of Supreme Court nominees. Even rist who understands the critical but nomination. The minority leader is en- Judge Robert Bork, whose name is now limited role of the Federal courts in couraging this extreme fringe, claim- used as a verb to mean the ‘‘unfair par- our constitutional system. To my ing, ‘‘If Judge Gorsuch fails to earn 60 tisan treatment of a judicial nominee,’’ knowledge, no Senator genuinely dis- votes and fails to demonstrate he is received an up-or-down vote in 1987. putes his eminent qualifications, his mainstream enough to sit on the high- Yes, Judge Bork, who only received 42 judicial temperament, and his out- est court, we should change the nomi- votes for confirmation, did not face a standing record over the last decade on nee, not the rules.’’ partisan filibuster. the Tenth Circuit Court of Appeals. I will return later to the minority But let’s not stop with Supreme Indeed, Judge Gorsuch would appear leader’s central and ironic role in all of Court nominations. Let’s also consider headed toward an easy, noncontrover- this. For now, let’s take a trip down other kinds of nominations so that we sial confirmation based on the com- memory lane so as to understand just can understand just how radical is the ments by Democratic Senators. how radical this partisan filibuster Democratic minority’s position. The senior Senator from Colorado in- would be. To this day, there has never been a troduced Judge Gorsuch at his con- No Supreme Court nominee has ever Cabinet nominee defeated by a partisan firmation hearings with this high failed because of a partisan filibuster— filibuster—never, not once, ever—in 228 praise: never, not once, ever—in the 228 years years of Senate history. To this day, of our venerable Constitution. One I have no doubt that . . . Judge Gorsuch there has never been a trial court has profound respect for an independent judi- nominee, Justice Abe Fortas—to be nominee defeated by a partisan fili- ciary and the vital role it plays as a check elevated to Chief Justice—lost one clo- buster—never, not once, ever—in 228 on the executive and legislative branches. I ture vote in 1968 on a bipartisan basis. years of Senate history. Until 2003— may not always agree with his rulings, but I He then withdrew under an ethical just 14 years ago—there had never been believe Judge Gorsuch is unquestionably cloud, but no Supreme Court nominee an appellate court nominee defeated by committed to the rule of law. has ever been defeated by a partisan a partisan filibuster. The senior Senator from Indiana re- filibuster. That is just how strong the custom cently announced his support for Judge This historical standard has nothing against filibusters was. It had never Gorsuch, saying: to do with changes in the Senate rules. successfully happened in 214 years.

VerDate Sep 11 2014 02:42 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.037 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2203 From our founding, through secession But don’t take my word for it. Let’s It would have been better for the and civil war, through world wars, no review what the Democrats were say- Senate if the minority leader and the matter how intense the feeling and how ing last year when they all believed Democrats had recognized these things momentous the occasion, no matter they would be in power with Hillary in 2003 and not started us down this how partisan the atmosphere, Senators Clinton as President and Democrats path, the end of which we reach this always exercised self-restraint and al- controlling the Senate. We did not hear week. It is rarely a good thing when an lowed up-or-down votes on nominees much talk about the sacred 60-vote institution ignores or breaks its cus- for the Supreme Court, the court of ap- standard back then. On the contrary, toms and traditions, its unwritten peals, the trial court, and the Cabinet. the Democrats were promising to use rules. They should have known better, But that changed in 2003, thanks in the nuclear option again—this time to and they should have acted better. But no small part to the senior Senator confirm a Democratic nominee to the we have come to this point because the from New York, CHUCK SCHUMER, now Supreme Court. radical Democrats didn’t act any bet- the minority leader. With the help of Former Senate Minority Leader ter. leftwing law professors, he convinced Harry Reid said: Now they propose to create a new extremists and the Democratic caucus I have set the Senate so, when I leave, standard never known to exist before: to filibuster President Bush’s appellate we’re going to be able to get judges done The Senate will not confirm a Repub- court nominees. For the first time in with a majority. . . . If the Republicans try lican President’s nominees to the Su- more than two centuries of the U.S. to filibuster another circuit court judge, but preme Court, because if the Democrats Senate, a radical minority defeated especially a Supreme Court Justice, I’ve told will filibuster Neil Gorsuch, then they ‘em how, and I’ve done it . . . in changing will filibuster any Republican nominee. nominations with a partisan filibuster. the rules of the Senate. Why did the Senate start down this I will never accept this double stand- The junior Senator from Virginia, path? Some point to racial politics and ard, and neither will my colleagues. who would have been Vice President Miguel Estrada, who was one of the Republicans aren’t going to be played had Secretary Clinton won, said, quite most talented appellate litigators of for suckers and chumps. frankly, about the Supreme Court va- his generation and President Bush’s After this week, the Senate will be cancy: nominee to the DC Circuit. That court back to where it always was and where is often a proving ground for future Su- If these guys think they are going to stone- it should have remained: Nominees wall the filling of that vacancy or other va- brought to the floor ought to receive preme Court nominees, and Mr. cancies, then a Democratic Senate majority Estrada’s confirmation might have en- an up-or-down, simple-majority vote. will say, ‘‘We’re not going to let you thwart And don’t expect to hear regret from abled President Bush to nominate him, the law.’’ subsequently, to the Supreme Court. A me about it. The junior Senator from Oregon There is no moral equivalence here Republican President appointing the warned ominously: first Hispanic Justice? Surely, the between the two parties. To suggest If there’s deep abuse, we’re going to have any equivalence is to divorce action Democrats couldn’t allow that. to consider rules changes. from its intent and aim. In 2003 and Whatever the reason, there can be no The senior Senator from New Mexico doubt that the minority leader has set again at this moment, the radical perhaps summed it up best of all when Democrats overturned venerable Sen- in motion a chain of events over the he said: last 14 years and has brought us to the ate traditions. The Republicans are The Constitution does not give me the acting to restore them. Those who can- point he claims to deplore today. So right to block a qualified nominee no matter the Democrats can spare me any hand- not see the difference, to borrow from who is in the White House. . . . A minority Bill Buckley, would also see no dif- wringing about Senate traditions and in the Senate should not be able to block ference between a man who pushes an customs. qualified nominees. The minority leader and like-minded old lady into the path of an oncoming Do not think for a minute that the bus and a man who pushes the old lady extremists in the Democratic caucus radical Democrats would not have can also spare us their exaggerated out of the path of the bus, because made good on these threats. They have after all, both men push around old la- claims of the Republican obstruction of exercised little restraint on judicial President Obama’s judicial nominees. dies. nominations over the last 14 years. So I am not regretful. I am not The Democrats, after all, were the ones They have betrayed over 200 years of wracked with guilt. I am not an- who broke a 214-year-old tradition spe- Senate tradition and custom. They guished. I am really not even dis- cifically to obstruct 10 of President would not start respecting those tradi- appointed. There are no school yard Bush’s nominees. Of course, the Repub- tions now. taunts of ‘‘you did it first.’’ There are licans followed suit, though I would In reality, there were good reasons to no charges of hypocrisy. There is no note that they have filibustered fewer respect and uphold the old Senate tra- pox on both our houses. The Repub- judges over more years in their having dition against the filibusters of nomi- licans are prepared to use a tool the been in the minority. nees before 2003. Democrats first abused in 2013 to re- Put simply, the Democrats broke one First, our responsibility under the store a 214-year-old tradition the of the Senate’s oldest customs in 2003 Constitution is not to choose but to ad- Democrats first broke in 2003, and we so that they could filibuster Repub- vise and consent. A partisan filibuster are supposed to feel guilty? Please. The lican judges, and they subsequently would, essentially, encroach upon the radical Democrats brought this all on filibustered more judges than did the President’s power to nominate the per- themselves and on the Senate. The re- Republicans. So it should come as no son of his choice. sponsibility rests solely and squarely surprise that the Democrats took an Second, nominations are not suscep- on their shoulders. even more radical step in 2013 when tible to negotiation. We cannot split The minority leader is hoist with his they used the so-called nuclear option someone down the middle, Solomon- own petard, the Senate is restored to a to eliminate the filibuster for execu- like. We can vote yes or no. This is not sensible, centuries-old tradition, and tive branch, trial court, and appellate the case with legislation, where dif- Judge Gorsuch is about to become Jus- court nominations. They broke the ferences can be split, compromises ne- tice Gorsuch. Not a bad outcome. Not Senate rules by changing the Senate gotiated, and bipartisan consensus bad at all. Pretty good, in fact. rules with a bare majority, not the ef- reached. Mr. President, I yield the floor. fective two-thirds vote required under Third, when legislation fails to win 60 The PRESIDING OFFICER. The Sen- those rules. votes, it is not the end of the world; it ator from Texas. The radical Democrats will accept no can go back to the drawing board or be Mr. CRUZ. Mr. President, I come to constraints on their will to power— enacted through other legislative vehi- the floor today to support the con- when in power. Whatever it takes to cles. But when nominations are long firmation of Neil Gorsuch to serve as pack the courts with liberal extremists delayed or defeated, then real work is an Associate Justice on the Supreme or to block eminently qualified Repub- left undone, cases go unheard, disputes Court of the United States. By any ob- lican nominees is exactly what they go unresolved, and the law remains un- jective measure, Judge Gorsuch is im- will do. clear. peccably qualified. He is a graduate of

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Judge Gorsuch objected—not Ted Kennedy, not Hillary making now. has spent a lifetime in the law, and his Clinton, not Barack Obama, not Joe The public—the people who appear in record indicates he will make an exem- Biden, and not even Democratic Mem- court seeking an honest tribunal—have plary Justice. bers who still serve in this Chamber, also heard this open call for bias, for Just 2 weeks ago, Judge Gorsuch tes- like CHUCK SCHUMER, DIANNE FEIN- prejudice, for discrimination, and I tified for 20 hours before the Senate Ju- STEIN, PAT LEAHY, or DICK DURBIN. Not doubt they will soon forget. diciary Committee. His conduct during one of them spoke out against Luckily, Judge Gorsuch stood firm in the hearing only further confirmed Gorsuch’s nomination to the court of his confirmation hearing. He re- what his record demonstrates: that appeals—not one. affirmed what was clear from his Neil Gorsuch is a principled jurist and So what changed? The only thing record—that he will not legislate his a good man. And I was glad for all of us that changed is that the radical left own policy preferences from the bench to get that confirmation because Judge has become angry, extremely angry, and that he will respect the limited Gorsuch bears a heavy responsibility— and my Democratic colleagues are wor- role a judge plays in our constitutional he is being asked to fill the seat of Jus- ried they will get opposed from their structure. He did all of this in the face tice Antonin Scalia. In truth, I doubt left in a primary. That is it. Their base of unrelenting opposition from my anyone could truly fill Justice Scalia’s demands total war, total obstruction, Democratic colleagues who demanded shoes. Justice Scalia was one of a kind, and they are begrudgingly bowing to that he violate his judicial oath and and his enormous impact on the law this demand. swear to decide certain cases and polit- and on the Court will impact this Na- Unfortunately for them, it has prov- ical questions in a way that they would tion for generations to come. en difficult to invent attacks against prefer. No recent nominee to the Su- All of us miss him dearly, but I take an obviously well-qualified judge like preme Court has ever made such solace in the knowledge that one of the Judge Gorsuch. My Democratic col- pledges, and Judge Gorsuch rightfully ways in which I believe it will be easi- leagues couldn’t get any legitimate refused to do so last week. est for Judge Gorsuch to imitate grievance to stick at the hearings last Their demands of Judge Gorsuch Scalia—perhaps the most important week, despite their best efforts, but it were particularly galling given that way—is judicial humility. Justice hasn’t stopped them from repeating this was the most transparent process Scalia’s greatest strength was not his their outlandish attacks over and over in history for selecting a Supreme amazing wit, his mighty pen, or his again. If the stakes weren’t so high, it Court Justice. During the campaign, larger-than-life personality, as much as might even be humorous, but it isn’t Donald Trump promised the American we loved those parts of him; rather, it people that, if elected, he would choose really funny because the primary argu- was his consistent unwillingness to ac- a Justice in the mold of Justice Scalia. ment the Democrats have made is dan- cumulate power to himself and to the He laid out a specific list of 21 poten- gerous. Their attack on Neil Gorsuch is courts. He refused to impose his own tial nominees, including Judge personal policy preferences on the law a direct attack on the rule of law itself. Contrary to the very foundations of Gorsuch. The voters were able to see but instead understood that his role as our government and legal system, my precisely whom President Trump would a judge was simply to apply the law colleagues from across the aisle are ar- nominate, and they were able to decide that the elected representatives of the guing that Judge Gorsuch is unquali- for themselves if that was the future people had enacted. they wanted for the Supreme Court. fied to be a Justice because he alleg- This type of judging doesn’t take Hillary Clinton, on the other hand, edly failed to side with the ‘‘little guy’’ otherworldly talents, although Scalia promised a very different kind of Jus- had that in abundance; instead, it over the ‘‘big guy.’’ In their view, it is tice. She promised a liberal judicial ac- takes character, integrity, and humil- now the job of judges to reject equal tivist who would vote to undermine ity. Judge Gorsuch’s lengthy record protection, to take the blindfold off of free speech, to undermine religious lib- and his hearing testimony demonstrate Lady Justice, and instead judges erty, and to undermine the Second that he has those attributes as well. He should put their thumbs on the scales Amendment right to keep and bear understands that his role as a judge is to actively discriminate against par- arms. to apply the words of the Constitution ties based on their identity. In a very real sense, this election was and the laws of the United States to This notion of partisan, results-ori- a referendum on the Supreme Court. the specific cases that come before ented judging is directly contrary to The American people could decide for him, and nothing more. This is critical the constitutional system we have in themselves between a faithful in an era when the Supreme Court has this country. My Democratic col- originalist vision of the Constitution come to be seen by many—for good rea- leagues are openly calling for judges to or a progressive, liberal, activist vi- son—as an activist Court, as a super- enforce their own political preferences sion, and the voters chose. legislature that seeks to impose its from the bench, and they want to use a Donald Trump is now President own will in the place of the written person’s willingness or unwillingness Trump, and he has kept his promise to law. to do so as a litmus test for who gets the American people, selecting Judge It is this very humility that angers on the Court. This isn’t even a juris- Neil Gorsuch from that list of 21 so many on the left. They don’t want prudential position, it is a political po- judges. Judge Gorsuch is no ordinary someone who humbly applies the law; sition. And it is difficult to imagine a nominee. Because of this unique and rather, they demand nothing less than more effective way to destroy our judi- transparent process, unprecedented in a person fully committed to enacting cial system—the best in the world, de- our Nation’s history, his nomination from the Supreme Court bench what- spite its flaws—than to adopt this re- carries with it a kind of super-legit- ever policies the left is championing at sults-oriented approach. imacy in that it has been ratified by that given moment, because they know Make no mistake, the Democrats’ the American people at the voting their only refuge is the courts because trumpeting of outcome-based judging booth. Neil Gorsuch is not simply the the American people would reject the will have consequences. Judges and po- President’s nominee. It is the direction policies at the voting booth. Judge tential judges nationwide will now chosen by the American people, and I Gorsuch is clearly not that kind of per- have heard their siren call. You want urge my colleagues to confirm him. son, so they have committed to oppos- smooth sailing in a confirmation hear- I yield the floor. ing his confirmation by whatever ing from the Democrats? Ignore the The PRESIDING OFFICER. The Sen- means necessary, legitimate or not. law, ignore the facts, and pick sides ator from New Jersey. Indeed, if this were being decided on based upon whom you sympathize Mr. BOOKER. Mr. President, I rise qualifications and record, Judge with—whoever is politically correct at today to voice my opposition to the

VerDate Sep 11 2014 06:36 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.041 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2205 nomination of Judge Neil Gorsuch to When it comes to the Supreme Court, our Constitution expanded to be more be an Associate Justice on the Su- the Senate’s duty to advise and con- inclusive, to include women and mi- preme Court of the United States. sent means more than merely meas- norities and religious minorities. This The nomination of an individual to uring an aptitude or understanding of conception of ‘‘we the people’’ is crit- serve on the Supreme Court is a matter the law. It means more than just look- ical. of tremendous importance. Supreme ing at someone’s college and law It is unfortunate that too often, even Court justices have the opportunity to school. It means more than just admir- with the best intentions, our elected shape, literally, and even to define ing: Does this person have an impres- officials, Supreme Court Justices, and American history for decades to come. sive resume? It necessitates an under- even Presidents have forgotten the pre- Even more importantly, they have the standing of it. It actually necessitates cision of these words which were cho- opportunity to affect the lives and live- an empathy for how these decisions sen. But despite this, because of heroes lihoods of everyday Americans, now will affect the lives of everyday Ameri- like Susan B. Anthony and others, the and in generations yet unborn. cans. Do they have the capacity to people of this Nation have remembered Few decisions in the Senate have a stand for all of us? them, and our Nation has grown to be more profound consequence than the I take literally the way the Constitu- who we are now. We often actually confirmation of a nominee for a life- tion began. It began with the words in take for granted the critical role the time seat on the highest Court in the the preamble to the Constitution. In Supreme Court has played in focusing land. I recognize that this is one of the many ways, it is a direct point at what on the people—on all the people. This most critical votes that I will take or has been the power and majesty of the is at stake when we nominate an indi- that any Senator will cast. Supreme Court—this focusing of indi- vidual to the Supreme Court. It is a After reviewing Judge Gorsuch’s vidual rights, the dignity, the worth, critical way that we began. It begins record, I have decided to uphold my the value of all people. constitutional duty of service to advise by saying: ‘‘We the People.’’ The inclu- In the Supreme Court case in Ham- and consent by opposing Judge sion of these words at the start of one mer v. Dagenhart, the Supreme Court Gorsuch’s nomination at all stages of of our Nation’s founding documents is ruled that Congress has the power to the confirmation process, including a actually no accident. It was the subject enact labor laws that protect children. vote on cloture or an up-or-down vote. of consternation and even discussion They remembered ‘‘we the people’’—in I didn’t come to this decision lightly. I and debate. this case, citizens against powerful cor- arrived at this conclusion because I be- It is worth noting that the original porations. lieve the next Associate Justice to the draft of the preamble of the Constitu- In West Coast Hotel Co. v. Parrish, Supreme Court must be someone who tion of the United States, as prepared the Supreme Court upheld the con- understands the importance of judicial by a man named Gouverneur Morris, stitutionality of a State minimum restraint, someone who will adhere to had a different beginning. It said: We wage law, again, focusing on the peo- precedent, someone who will respect the people of the States of New Hamp- ple—‘‘we the people.’’ and has respect for all coequal shire, Massachusetts, Rhode Island, In Mapp v. Ohio, when the Supreme branches of government, someone who and so forth. But Morris and other Court decided about evidence obtained views the Constitution as a living—not drafters of the Constitution made the through the illegal search—the viola- a static—document, someone whose ju- conclusion—and, really, the conscious tion of individual privacy—they re- dicial views actually fall within the decision—to remove references to membered, again, ‘‘we the people.’’ mainstream of judicial thought and ju- States, to bring it back to the people— In New York Times Co. v. Sullivan, risprudence, and someone who has a that the power of government is de- when the Supreme Court protected the rights of everyday citizens to criticize deep understanding of the law, the Con- rived by the people and that is the fun- their government, they remembered stitution, and its applications. Criti- damental aspect of our society; that it that sovereignty, that power, that im- cally, I believe the next Supreme Court is ‘‘we the people’’—not people of any one State, not people of any one reli- portance of ‘‘we the people.’’ justice must be someone who under- In Baker v. Carr, when the Supreme stands the gravity of their work—that gion, not people of any one race or class, but ‘‘we the people’’—all of the Court established the principle of one their decisions will affect livelihoods, person, one vote, they remembered ‘‘we will affect lives, and will affect the lib- people. In a debate about this change, it was the people.’’ erties and the rights that we value— There are so many of the rulings dur- James Madison who argued: not just for those in places of privilege ing the 1950s and 1960s governing issues and power but for all American citi- In this particular respect the distinction of race in our Nation, to which so zens, for all of the people, now and for between the existing and the proposed gov- many of us in our Nation owe our very decades to come. ernments is very material. The existing sys- tem has been derived from the dependent de- success, the opportunity that was ex- The American people need the next panded because the Supreme Court— Justice on the Nation’s highest Court rivative authority of the legislatures of the states; whereas, this is derived from the su- against social mores, against laws of to be someone who will protect the perior power of the people. States—focused on ‘‘we the people.’’ rights for all—for everyone—and who Perhaps most famous of those is will ensure that the words literally in- It is a deference and it is a reverence for the understanding of the power of Brown v. Board of Education, when the scribed above the Supreme Court— Supreme Court asserted that separate ‘‘Equal Justice Under Law’’—are made the people—all people. It is no accident that this is how our Constitution but equal had no place in the education manifest in everyone’s life. of our children, and they remembered began, and it is the spirit in our Nation After careful consideration of Judge ‘‘we the people.’’ Gorsuch’s record, his judicial philos- which has helped us for centuries to ex- In Loving v. Virginia, when the Su- ophy, and after meeting with the nomi- pand upon this ideal of ‘‘we the peo- preme Court ruled unconstitutional the nee and examining remarks and an- ple.’’ State laws that banned interracial swers to questions in his confirmation Understand this: Some of our great- marriage—that ideal of being able to hearing, I do not believe Judge Gorsuch est leaders fought to make sure that join in union with someone you love, meets this high standard, and I cannot these ideals were far vaster, far more regardless of race—the Supreme Court support his nomination to be a Su- inclusive. I note, for instance, that remembered ‘‘we the people.’’ preme Court Justice. Susan B. Anthony said it was ‘‘we the In Olmstead v. L.C., when the Su- Judge Gorsuch is truly a well- people’’—not we the White male citi- preme Court reinforced the right of credentialed jurist, but we must under- zens, not we the male citizens, but we people with developmental disabilities stand that a good resume is the begin- the whole people who formed the to live in the community and not be in- ning and not the end point of a stand- Union. And we formed it not to give stitutionalized, they saw a greater in- ard by which we must measure nomi- the blessings of liberty but to secure clusion of all Americans. They remem- nees to serve on the Supreme Court. A them, not to the half of ourselves and bered ‘‘we the people.’’ good resume is necessary, but it is not to the half of our prosperity but to the I stood on the Supreme Court steps sufficient to be on the highest Court of whole people—women and men. You and I sat in on the Supreme Court ar- the land. see, this fundamental understanding of guments in Obergefell v. Hodges, when

VerDate Sep 11 2014 05:41 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.042 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2206 CONGRESSIONAL RECORD — SENATE April 4, 2017 the Supreme Court ultimately ruled judges ruled in favor of Alphonse—a Judge Gorsuch’s misinterpretation of that State laws cannot stop you from guy who made a practical decision, an the law—depriving a child with a dis- marrying whom you love. They remem- urgent decision, to save his own life ability of the education he deserves— bered. They saw the dignity and the and not risk the lives of others. But should be cause for concern to any of worth of all of the people and ensured the judge who ruled against this indi- my colleagues as they are promoting that equality. They remembered ‘‘we vidual, in favor of the corporation, was him to the highest Court in the land. It the people.’’ Judge Neil Gorsuch. is this idea that the powerless, who In each of these cases, so much was He chose to save his own life and pro- fight against these corporations or big at stake—the rights of workers, the tect the lives of others who had been institutions and turn to the court sys- rights of children, the rights of people put in harm’s way if he chose another tem as their avenue to get the equal with disabilities, the rights of minori- option, and he was fired for it. Every justice under the law that will view ties, the rights of women, voting judge on the Tenth Circuit supported them—whether it is a corporation, rights, civil rights, our rights—Amer- that decision except for Judge Gorsuch. whether it is a government—as an ican rights. The Supreme Court, with ‘‘We the people’’ includes Luke, a equal under the law and give them jurists on the right and the left, jurists student with a disability. He was diag- their right to be heard. appointed by Republicans and Demo- nosed with autism at the age of 2. This is what ‘‘we the people’’ is. It crats, looked to people and affirmed When Luke entered kindergarten, he means people like Alphonse Maddin dignity and worth and well-being. began receiving specialized educational and Luke, whom Judge Gorsuch ruled But these are not just issues that services from a school district as en- against. It also means female workers were done in the past. The Supreme sured by the Individuals with Disabil- who want access to contraceptive cov- Court is going to be again confronted ities Education Act, or IDEA. Congress erage but were denied by their em- by historic and deeply consequential debated and passed, with Republicans ployer, denied by a corporation. Judge cases. There is still so much at stake, and Democrats, an act that says chil- Gorsuch ruled against the people and and that is why this decision before the dren with disabilities are entitled to for the corporation. Senate is so consequential. The right receive a free and appropriate public ‘‘We the people’’ means those mil- to gain access to birth control, the education. lions of Americans who rely on right to criticize your elected officials, Between kindergarten and the second Planned Parenthood centers for the right to marry someone you love— grade, Luke achieved many of the goals healthcare. Judge Gorsuch ruled that is still at stake. of his individualized education pro- against those people seeking what, in I cannot vote in support of a nominee gram. But when Luke’s family moved some counties, is their only access to whom I don’t trust to protect Amer- to Colorado and he enrolled in a new contraceptive care. ‘‘We the people’’ ican individuals, to understand the ex- public school, he had trouble adjusting, means the people harmed by a medical pansive nature of that idea of ‘‘we the and Luke regressed in areas in which device manufacturer’s urging of unsafe, people.’’ Judge Gorsuch is someone he had previously done well. To better off-label uses. Judge Gorsuch ruled who, in his own words, has said judges suit Luke’s needs, his parents, who against the people injured and for the should try to ‘‘apply the law as it is, fo- tried to get him better care, eventually manufacturers, for the corporation. cusing backward, not forward.’’ Based withdrew him from his local school and ‘‘We the people’’ means that a worker on his record and his writing, it is clear enrolled him in a private residential fatally electrocuted while on the job to me that Judge Gorsuch’s own judi- school for children with autism. His due to inadequate training, whose fam- cial philosophy leaves out critically parents sought reimbursement for the ilies sought justice—Judge Gorsuch important elements of democratic gov- costs of that private school, but the ruled against the individual and for the ernance. public school district refused to pay. corporation. Judge Gorsuch’s evasive answers to By the time Luke’s case reached the ‘‘We the people’’ means the woman questions during his confirmation Tenth Circuit, a Federal judge and two prevented from suing for sexual harass- hearing didn’t do anything to allay my administrative courts had agreed that ment, not because sexual harassment concerns. ‘‘We the People’’ are the first the school district should pay because didn’t exist but because she didn’t re- words of the Constitution. These Luke did not receive the free and ap- port it quickly enough. Judge Gorsuch words, I fear based on Judge Gorsuch’s propriate education to which he was supported the corporation against the record, are not his greatest consider- entitled. woman. ation. In fact, at times, when he issues The question for Judge Gorsuch was, ‘‘We the people’’ means a transgender his judicial opinions, they look as if What constitutes an appropriate edu- woman who is denied access to a bath- those individuals that make up our so- cation? In that ruling, Judge Gorsuch room at work. Judge Gorsuch ruled ciety—‘‘we the people’’—are the least wrote the opinion saying that the edu- against the individual in favor of the of his considerations. cational benefits mandated by IDEA corporation. Take for example, Alphonse Maddin, must be ‘‘merely more than de mini- ‘‘We the people’’ means that every the man who was working through the mis.’’ That was the standard that he single American deserves to have their night in the dead of winter as a truck- set for one of our American children. civil rights, deserves to have their driver when his brakes unfortunately Because the school district gave Luke equality protected by the judicial froze on him. Knowing the danger of a merely more than de minimis edu- branch, which is often their last ave- continuing to drive with frozen cation, Judge Gorsuch ruled that nue toward justice. It is often their brakes—the danger to himself and Luke’s parents were not entitled to re- last hope against the powerful, against other motorists on the road—Alphonse imbursement. the wealthy. But Judge Gorsuch’s pulled over to the side of the road and But just two weeks ago, the Supreme record in everything—from workers’ called for help. Court unanimously rejected Judge rights to women’s rights, to civil As several of my colleagues have Gorsuch’s ‘‘merely more than de mini- rights, to the rights of children with noted in Judge Gorsuch’s confirmation mis’’ standard. They unanimously re- disabilities, to the rights of a guy on hearing and on the floor, Alphonse jected Judge Gorsuch’s standard as the side of a highway to save his own waited over 2 hours in the freezing cold contrary to the intent of Congress. In life—suggests that he has forgotten without heat, experiencing systems of fact, at the very moment when Judge perhaps the most important element of hypothermia. After no help arrived, Al- Gorsuch testified before the Judiciary the Constitution: It exists to protect phonse feared for his life, and, ulti- Committee, Chief Justice Roberts and serve the American people, not mately, left his trailer to find help. wrote an opinion rejecting Gorsuch’s corporations, not lobbyists, not those Less than a week after the incident, IDEA standard, saying: rich enough to hire big, fancy law Alphonse was fired for abandoning his When all is said and done, a student offered firms. It doesn’t exist to serve a polit- trailer. He filed a complaint with the an educational program providing ‘‘merely ical ideology. It exists to serve ‘‘we the Department of Labor and the case was more than de minimis’’ progress from year people.’’ brought to the Tenth Circuit Court of to year can hardly be said to have been of- I am not confident in Judge Appeals, where all but one of the fered an education at all. Gorsuch’s ability as a Supreme Court

VerDate Sep 11 2014 05:41 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.043 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2207 Justice to safeguard the rights and lib- proper role of the courts. Does he un- Madison asserted that the existence of erties of all Americans, to prioritize ju- derstand that Federal courts are the the legislative branch would guard dicial restraint over judicial ideology, proper forum for constitutional dis- against some of the worst effects of to ensure equal justice under the law, putes that protect American’s basic this reality. He wrote that those elect- and to understand and act in a way rights? This is not about liberal or ed to represent the American people in that indicates that the lives of real democrat; this is about individuals who the legislature would be those ‘‘whose people who are struggling against often are often fighting battles against pow- wisdom may best discern the true in- seemingly insurmountable odds—that erful interests. terests of their country and whose pa- for them, everything is on the line. I It was the journalist and editor Wil- triotism and love of justice will be am not sure that Judge Gorsuch on the liam Allen White who said in 1936: least likely to sacrifice it to a tem- Supreme Court can honor this tradi- Liberty . . . must be something more than porary or partial consideration.’’ tion. a man’s conception of his rights, much more When this body is at its best, I be- ‘‘We the people’’ means an inde- than his desire to fight for his own rights. lieve that is true. I have seen that kind pendent judiciary that will not close True liberty is founded upon a lively sense of of partnership in this body. But I am the courthouse doors on people, on our the rights of others and a fighting conviction afraid that we are indeed at a troubling civil rights—that will not look at liti- that the rights of others must be main- time—a troubling time in history for tained. gants as just pawns in the larger ideo- the Senate where it seems that the re- logical context of ideas but will see the I do not believe Judge Gorsuch pos- verse of Madison’s hopes have become humanity of every American; that will sesses this ‘‘fighting conviction’’ that reflective of the truth we are experi- have a courageous empathy to under- we need in a Supreme Court Justice to encing because we are now facing a stand their circumstances and their forcefully and fearlessly, without re- vote on a Supreme Court nominee struggles and put that in accordance gard to politics or favor or privilege or whose confirmation, I believe, would be with the values of a nation where we wealth, protect the rights of others, to a sacrifice to temporary and partial all swear an oath for liberty and jus- protect the rights of all Americans, to considerations as opposed to the larger tice for all the people. protect the rights of ‘‘we the people.’’ I interests of our country. Over 75 years ago, Justice Hugo do not believe that Judge Gorsuch will In my short time in the body—just Black encompassed the basic ideal of work to fiercely defend the rights of all over 31⁄2 years—I have come to this the role of Federal courts in protecting Americans. I do not believe he pos- floor to speak on the nominations of citizens’ rights when he wrote these sesses that fighting conviction that two different Supreme Court Justices words: ‘‘we the people’’ must be committed to serve here in the United States. The No higher duty, or more solemn responsi- above all else to one another. first was Judge Merrick Garland. He bility, rests upon this Court, than that of Again, I do not take the decision to was not only well qualified, intelligent, translating into living law and maintaining oppose Judge Gorsuch’s nomination and capable, he was moderate. Presi- this constitutional shield deliberately lightly. I understand what is at stake. dent Obama even sought input from planned and inscribed for the benefit of every I am fortunate to represent hard-work- Republicans about choosing someone human being subject to our Constitution—of ing New Jerseyans in the U.S. Senate, who was a mainstream jurist. He was whatever race, creed or persuasion. and when I took the oath to support more than qualified to sit on the Su- Yet Judge Gorsuch’s own writings and defend the Constitution, I made a preme Court, but he was actually demonstrate a failure to grasp this un- promise to my constituents and the someone who could bring folks to- derstanding of the role of courts to pro- American people not to only discharge gether. His qualifications, his aptitude tect all people—and I quote, again, Jus- my duties but at every opportunity to to serve, and his moderate philosophy tice Black—‘‘whatever race, creed, or work across the aisle, to protect their were not reflected in how we dealt with persuasion.’’ rights and interests. That means a lot that nomination. In an opinion article for the National to me. I believe he deserved an up-or-down Review, entitled ‘‘Liberals and Law- So many of my proudest moments in vote. Even if it was a 60-vote threshold, suits,’’ Judge Gorsuch expressed his the Senate are from this bipartisan co- he deserved an up-or-down vote. More skepticism about civil rights litigation operation that I have found with so than that, he should have had the op- as merely a pursuit of a ‘‘social agen- many of my colleagues. I do not stand portunity to meet with Senators, Re- da.’’ He wrote: here today to question their motives. I publican and Democratic, like Gorsuch American liberals have become addicted to do not stand here today to impugn has met with Senators, Republican and the courtroom, relying on judges and law- them in any way because when I go Democratic. He deserved to have a yers rather than elected leaders and the bal- home, people are not concerned about committee hearing. He deserved to be lot box, as the primary means for effecting the partisan politics. They are con- voted on up or down in that com- their social agenda on everything from gay marriage to assisted suicide to the use of cerned about their lives, their liveli- mittee, and he deserved to have his vouchers for private-school education. hoods—about the issues that affect nomination come to the floor. Whether This overweening addiction to the court- them and their families, their neigh- a 60-vote threshold or a 50-vote thresh- room as a place to debate social policy is bad borhoods, their community. They want old, he deserved an up-or-down vote, for the country and bad for the judiciary. people in this body and in the courts but he did not get one. I wonder what Oliver Brown, plaintiff across the street to protect the rights The Garland nomination was the in the seminal case of Brown v. Board of Americans, protect consumers, pro- bookend to an era we have been experi- of Education would say to Judge tect our kids and our environment, but encing, that I have been witnessing, of Gorsuch? Was he ‘‘addicted’’ to the this is, in fact, what I believe the nomi- obstruction, and there has been finger- courtroom to advance his social agen- nee we are all considering has shown pointing on both sides. But let’s be da? Or was the courtroom his avenue to that he will not do. clear about what happened during the justice against profound oppression? It is no secret that Judge Gorsuch’s Obama administration. During Presi- I wonder what James Obergefell nomination comes at a very divisive dent Obama’s time in office, we saw would say to Judge Gorsuch. Was he time for this body and a challenging historic obstruction like never before. ‘‘addicted’’ to the courtroom when he time for this country. We have experi- Seventy-nine of President Obama’s ju- sought to be able to marry the person enced great times of turmoil and polar- dicial nominees were blocked by the he loved? Or did Oliver just want to ization before in this Nation and in filibusters. Seventy-nine nominees bring the truth to the idea that sepa- this body. In the Federalist Papers, were blocked at a time when the judici- rate but equal was actually discrimina- written over two centuries ago, James ary, an independent branch of govern- tory, demeaning, and degrading, not Madison warns in Federalist Paper No. ment, was saying: We are in judicial just to the individuals who are dis- 10 about what he calls the ‘‘mischiefs crisis in many jurisdictions. Seventy- criminated against but demeaning to of faction’’ and its inevitability—that nine of Obama’s judges were blocked, us as a people and a nation? citizens of the Nation and their polit- compared to 68 nominees obstructed Judge Gorsuch’s actions call into ical parties will undoubtedly disagree under all Presidents combined. All of question whether he understands the and will possess competing interests. the obstruction from Democrats and

VerDate Sep 11 2014 05:41 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.044 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2208 CONGRESSIONAL RECORD — SENATE April 4, 2017 Republicans and other parties, and see a judicial nominee who will help to these facts and set aside ideology when only 68 nominees were obstructed, com- heal wounds and not create them, help considering actions that affect our pared to President Obama, where there to elevate the unity of us as a people, Federal agencies and their workforce. were 79. who will help to affirm the ideals of Today I want to take a couple of mo- I do not possess the same view as our Nation and the very conception ments to recognize a few Virginians those who last year believed this seat that we are one people, we are one Na- who are working behind the scenes to should remain vacant and took the ob- tion, and we hold one destiny. actually make our government more struction during the Obama Presidency I yield the floor. efficient and more effective. to a much higher level. I believe that The PRESIDING OFFICER (Mr. First, I would like to recognize Kirk seat should have been filled not by an RUBIO). The Senator from Virginia. Yeager. Kirk is the Chief Explosives extreme jurist but by someone who Mr. WARNER. Mr. President, first of Scientist at the FBI. In this role, he could have tempered the partisanship all, let me thank my friend the Senator both responds to crises and oversees of our time, someone who could have from New Jersey for his statement. I, the Bureau’s efforts to better under- brought us together. It was a wise too, share the belief that there was a stand the explosives terrorists use. choice at a divisive time in our coun- better way to go about this judicial Having studied bomb-making for more try. nomination process. I think as well than 20 years, Kirk works with both do- President Obama did not choose that traditions such as a 60-vote mar- mestic and foreign law enforcement somebody from further left; he chose a gin should be maintained. agencies and has developed and pro- moderate Justice who probably could I think, frankly, neither party comes vided crucial training to every bomb have—if he had been given an up-or- to this issue completely with clean squad in the United States and to down vote—commanded 60 votes. At hands, with the Democrats’ action in many of our foreign allies. Through his this time, that is what President 2013. But clearly our colleagues’ ac- work, Kirk has made U.S. civilian law Trump should have done—put forward tions of not even giving someone of enforcement personnel and those who a nominee who could have brought this such character as Merrick Garland the serve our country in the military much country together, a moderate nominee, courtesy of meetings, a hearing, and safer. someone within the judicial main- then an up-or-down vote—for that and Next, I would like to recognize Den- stream. But he hasn’t. for many other reasons, I will be join- nis Wagner. Dennis is the Director of I believe a 60-vote threshold right ing my friend from New Jersey in vot- the Quality Improvement and Innova- now is more than appropriate at this ing against Judge Gorsuch and making tion Group at the Centers for Medicare moment in history. There are Repub- sure that we use all of our available and Medicaid Services. As part of a lican judicial nominees who could gar- tools. So I thank him for those com- team at CMS, Dennis contributed to ner 60 votes in this Chamber. The 60- ments. the creation of the Partnership for Pa- vote threshold exists because a person TRIBUTE TO FEDERAL EMPLOYEES tients, a public-private partnership to confirmed to serve on the Supreme KIRK YEAGER, DENNIS WAGNER, EDWARD GRACE, increase patient safety and reduce re- Court at this time should be main- AND MARIELA MELERO admissions to U.S. hospitals. Their stream and independent enough to gar- Mr. President, that sense of what we work has produced outstanding results, ner that two-thirds support. are dealing with now in our politics including 2.1 million fewer patients The 60-vote threshold exists because today is the subject that I want to harmed and $20 billion saved. That is a confirmation of a Justice to the Su- speak about for a few minutes; that is, remarkable statistic, and obviously the preme Court is one of the most impor- the incredibly important efforts made work going on at CMS—an agency that tant duties we perform, one of the most each and every day by our public serv- does not get a lot of recognition; can- important positions in all of American ants. didly, most people don’t even know—a Government. It is someone who will We often forget that our public serv- person like this gentleman, Dennis, has have an impact on our society, shaping ants, our Federal employees, go to made our healthcare system better. it and forming it for generations to work every day with the sole mission Third, I would like to recognize Ed- come. to make the country a better and safer ward Grace. Edward is the Deputy This President should have sought place. Day after day they go to work, Chief in the Office of Law Enforcement real advice and consent from the entire receiving little recognition for the at the U.S. Fish and Wildlife Service. Senate, but instead he turned to the ju- great work they do. Since 2010, I have In that role, Edward has been leading a dicial extreme. come to the Senate floor to honor ex- nationwide law enforcement investiga- Now more than ever, we need a emplary Federal employees—a tradi- tion known as Operation Crash, tar- threshold that can pull our nominees tion that was begun by my friend Sen- geting those who smuggle and trade back to the mainstream, that can ator Ted Kaufman. One of those Fed- rhino horns and elephant ivory. In ad- begin to heal the divisions. I do not be- eral employees is actually sitting at dition to assisting in the Department’s lieve it is in the best interests of my the desk and has helped me and I know efforts to preserve global biodiversity, constituents or the American people to so many other Senators as we have Operation Crash has led to 41 arrests, confirm someone so extreme on a 50- tried to learn this job. 30 convictions, and the seizure of mil- vote margin. It should be 60 votes. The reason I wanted to come back lions of dollars in smuggled goods—re- I urge my colleagues to understand today was because today, in light of a sults that show that those seeking to that this judge threatens those ideals governmentwide hiring freeze, the rein- engage in this kind of activity—there we hold precious, those words at the statement of the so-called Holman will be real legal consequences to their very beginning of our Constitution, rule, a proposed budget that would actions. ‘‘We the People.’’ I urge people to un- deeply cut our Federal workforce, and Finally, I would like to recognize derstand that this is the time more candidly, in these times, the targeting Mariela Melero. Mariela is the Asso- than ever that we must continue to of career civil servants by certain con- ciate Director for the Customer Serv- fight to defend the marginalized, the servative media outlets, this tradition ice and Public Engagement Directorate weak, the people who do not possess of honoring those who serve, often- at the U.S. Citizenship and Immigra- wealth, the people who are standing times without recognition, our Federal tion Services. Mariela and her team against powerful corporations, that we employees, feels even more important. have been working to improve the way cannot reverse a tradition where our Our Federal employees—over 170,000 USCIS interacts with the millions of courts were the main societal avenue of them Virginians—serve their coun- people who contact their office seeking in which people could receive equal jus- try dutifully regardless of the party in citizenship, permanent residency, ref- tice under the law. We cannot put power. Not only do they carry out the ugee status, or other assistance. Cen- someone in office who has shown mission of the administration they are tral to that mission are the innovative throughout their judicial record to be serving, but they also provide count- improvements Mariela has made to the contrary to that. less benefits to the American public. It myUSCIS website, as well as the For the sake of this body, now more is my hope that my colleagues and the launch of Emma, a virtual assistant than ever, it is my hope that we can current administration will remember that in a typical month answers nearly

VerDate Sep 11 2014 05:41 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.046 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE April 4, 2017 CONGRESSIONAL RECORD — SENATE S2209 500,000 questions with a success rate of It bears repeating that Judge Gar- It wasn’t the unprecedented use of nearly 90 percent. land is an extraordinary man, a good cloture motions—79 cloture motions— To ensure that this resource was man, a brilliant man, a fair judge, and during those 5 years that precipitated available to a wide range of customers, a consensus builder on the bench in a Democrats’ seeking a solution to re- Mariela also oversaw the creation of a day and age when we need consensus store the capability of the Senate to do Spanish-speaking Emma that came on- builders on the Supreme Court and its job. It was because our Republican line in 2016. These important improve- other courts across the country. friends refused to consider any nomi- ments have been crucial to driving effi- Frankly, we also need them right here nee—any nominee—to the DC Circuit ciency for the world’s largest immigra- on this floor, in this body. Court of Appeals, despite three critical tion system in the world. It bears repeating that the obstruc- vacancies on our Nation’s second high- Again, I hope my colleagues—as we tion of Judge Garland’s nomination est court. think about budgets and numbers and was unprecedented in the history of the So, yes, it is true that Democrats when we hear people who oftentimes United States of America and in the supported a change that allowed a vote denigrate our Federal employees—will history of the Senate. on those nominees, but it was because remember some of these individuals Since the Senate Judiciary Com- our Republican friends took the un- who, not for great reward or recogni- mittee began holding public hearings heard of position that no nominees—no tion, actually get up each and every on Supreme Court nominations in 1916, nominees, no matter their qualifica- day and go to work, trying to ensure no Supreme Court nominee had ever tions—were entitled to a vote. that our government functions for the been denied a hearing and a vote—until I should note that Democrats were hundreds of millions of Americans who Judge Garland. Many of our Repub- careful to preserve the 60 votes for Su- oftentimes don’t acknowledge or recog- lican colleagues refused to meet with preme Court nominees. nize their services enough. him. When his nomination expired at Let me just say that, if there is any Mr. President, as I mentioned at the noon on January 3, 2017, 293 days had position in the Federal Government outset, I know this is a time when passed—293 wasted days. that should require at least 60 votes, most of my colleagues are speaking on A good man was treated badly. I be- my view is it should be the Supreme Judge Gorsuch. I will simply add, after lieve our Constitution was treated Court, and that is the rule under which a careful review of his record and my badly. I believe that the obstruction of we operate as of this moment. One of the reasons why is because Su- belief as well, that his unwillingness to Judge Garland’s nomination was un- preme Court vacancies come around really give truly straight answers in precedented. I believe it was shameful. quite rarely. When they do, we need to terms of comments—whether it was From my view, we cannot pretend that ensure that debate is robust, we need basic, decided legal opinions like this vacant seat on the Supreme to ensure that the nominee is from the Court—what I believe should be Judge Brown v. Board of Education or Roe v. judicial and the political mainstream, Garland’s seat—is anything other than Wade or Citizens United—and his fail- and we need to ensure that these life- blatant partisanship. ure to even answer those questions has time appointments are held to the unfortunately led me to join with so I believe that upholding my oath to protect the Constitution means finding highest standards. In other words, I be- many of my other colleagues in voting lieve we need a nominee like Judge agreement on moving Judge Garland’s against him. Merrick Garland. nomination forward at the same time— I still hope that there is a way that Despite his own impressive resume, I we can avoid changing the rules of the at the same time as that of Judge Neil have concerns with Judge Gorsuch’s Senate during this process. I know Gorsuch, President Trump’s Supreme nomination beyond the treatment of there are many colleagues who are Court nominee. Judge Garland, and I have concerns I have no choice but to oppose Judge working on those efforts. If they are with the way that our debate has not Gorsuch’s nomination this week be- successful, I look forward to joining been, frankly, robust. I have concerns cause anything else would be a stamp them. that Judge Gorsuch’s views are outside As we think about Judge Gorsuch, as of approval for what I believe is play- the judicial and political mainstream, we recognize the challenges we have ing politics with Supreme Court nomi- and I have concerns about what others ahead of us, let us also—those of us nees. I cannot support Judge Gorsuch’s have termed ‘‘evasiveness.’’ His eva- who serve in this body—continue to nomination because we cannot have siveness before the Judiciary Com- take a moment every day to say one set of rules for Democratic Presi- mittee does not meet the high stand- thanks to a Federal employee who, in dents and another set of rules for Re- ards that we should expect for those one way or another, works tirelessly publican Presidents. lifetime appointments. day in and day out to make our coun- Some of my colleagues and maybe I would be remiss if I did not mention try a better place. some of the Americans listening at what I referred to last week as the I yield the floor. home tonight may be asking them- cloud that lingers still over President I suggest the absence of a quorum. selves: Well, Senator CARPER, didn’t Trump’s campaign. Like many Ameri- The PRESIDING OFFICER. The the Democrats change the rules for cans, I read the news related to Russia clerk will call the roll. judges when they were in the majority? and the Trump campaign, and I come The assistant bill clerk proceeded to That is a fair question. To that, I to the inescapable conclusion that the call the roll. would say yes. That is true for lower cloud is darkening and the forecast is a Mr. CARPER. Mr. President, I ask court nominees, nominees to Federal matter of grave concern for our Con- unanimous consent that the order for district courts and courts of appeals. stitution. the quorum call be rescinded. But it wasn’t because Senator Harry FBI Director Jim Comey has testified The PRESIDING OFFICER. Without Reid woke up one morning and decided under oath that there is an ongoing in- objection, it is so ordered. that was the day to change the rules of vestigation to determine the links be- Mr. CARPER. Mr. President, last the Senate. A decision of this mag- tween the Trump campaign and Russia, week on this Senate floor, I made the nitude didn’t happen on a whim. It was an adversary that attacked our elec- case for Democrats and Republicans because, by the time November 2013 tion and undermined a free and fair joining together to confirm one of the had arrived, our Republican friends had election to change the outcome of that most qualified individuals ever nomi- attempted to block—get this—more election. From all appearances, they nated to the U.S. Supreme Court. I was nominations in the first 5 years of did. referring, of course, to Chief Judge President Obama’s tenure than all To hastily move forward with Judge Merrick Garland. other Presidents combined. Let me say Gorsuch—who is 49 years old, who I don’t wish to belabor the point here that again. It was because, by the time could serve on the Supreme Court well this evening, but it bears repeating November 2013 had arrived, our Repub- into the middle of this century—with- that Judge Garland brought with him lican friends had attempted to block out first getting to the bottom of the more Federal judicial experience than more nominations in the first 5 years suspicious and irregular actions of any Supreme Court nominee in the his- of President Obama’s tenure than all Trump campaign officials would be, in tory of the United States. other Presidents combined. my view, a mistake.

VerDate Sep 11 2014 05:41 Apr 05, 2017 Jkt 069060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G04AP6.047 S04APPT1 lotter on DSK5VPTVN1PROD with SENATE S2210 CONGRESSIONAL RECORD — SENATE April 4, 2017 For many Americans, this Supreme CLOTURE MOTION the use of complex databases. Rich has Court seat will always come with an We, the undersigned Senators, in accord- excelled at developing approaches for asterisk attached to it. They believe ance with the provisions of rule XXII of the simulating the effects of potential and I believe that it was a stolen seat Standing Rules of the Senate, do hereby changes to Federal benefits and grant that belonged to Judge Merrick Gar- move to bring to a close debate on the nomi- allocation formulas. land. nation of Neil M. Gorsuch, of Colorado, to be In addition to the direct impact his Many Americans are wondering why an Associate Justice of the Supreme Court of research and analytical work has had the United States. on Federal policies, Rich has made we are rushing to fill a lifetime va- Mitch McConnell, Mike Crapo, John Ken- cancy while President Trump’s cam- nedy, Jerry Moran, Mike Rounds, equally important contributions within paign remains under investigation and Chuck Grassley, Jeff Flake, Todd CRS in managerial roles. During his will for at least some while. Young, John Cornyn, Cory Gardner, tenure at CRS, he has served as section I believe we have some time. Judge Thom Tillis, Marco Rubio, John Thune, research manager of the methodology Garland waited 293 days for a hearing Michael B. Enzi, Orrin G. Hatch, Shel- section, the research development sec- and a vote that never came. Judge ley Moore Capito, Steve Daines. tion, the research development and in- Gorsuch has waited 48 days for a hear- f come support section, and the hea1th ing and many of our Republican friends insurance and financing section. Dur- LEGISLATIVE SESSION would like to see him seated this week. ing his tenure as an SRM, Rich helped Again, I would say: Judge Merrick manage CRS work on the 1996 welfare reform law and the 2003 overhaul of Garland waited 293 days for a hearing MORNING BUSINESS and a vote that never, never came. Medicare in the Medicare Prescription What we face here today, I think, is Mr. MCCONNELL. Mr. President, I Drug, Improvement, and Modernization a rush to judgment. I would just say ask unanimous consent that the Sen- Act. Rich helped manage an inter- that we have time. We ought to hit the ate be in a period of morning business, disciplinary team numbering about 3 pause button on this nomination. with Senators permitted to speak dozen CRS analysts that provided leg- The American people are watching therein for up to 10 minutes each. islative support during the passage of us, and history will judge us. I fear The PRESIDING OFFICER. Without the Affordable Care Act. that history may judge us poorly if objection, it is so ordered. Throughout his career, Rich has anyone other than Merrick Garland is f served as a role model for the highest confirmed at this time. I fear that his- level of CRS service to Congress, up- tory may judge us poorly if we do not TRIBUTE TO RICH RIMKUNAS holding the Service’s standards of insist that the Trump campaign is first Mr. HATCH. Mr. President, I am authoritativeness, objectivity, and con- cleared of any wrongdoing before we pleased to pay tribute to a fine public fidentiality. He is known within CRS move forward. We need to get this servant and an incredible asset to the for his attention to detail, methodo- right. We have time to get this right. U.S. Congress. logical strength, and creative ap- The Senate has been through it all. Rich Rimkunas has had a career proaches toward conducting analyses. The good men and women of the Senate filled with outstanding achievement at His input is sought on a great many re- have always disagreed—sometimes pas- the Congressional Research Service, search efforts spanning virtually all of sionately, oftentimes loudly. I under- CSR. After nearly 37 years of service, the major domestic social policy issue stand that this disagreement before us Rich will be retiring from CRS on Fri- areas that Congress deals with. may seem irresolvable, but that is only day, April 28. Rich is renowned for his tremendous if we seek to cut off debate and admit When Rich joined CRS in 1980, he was work ethic and energizing presence. defeat. Personally speaking, I am not an analyst working on a broad array of Those who have worked closely with ready to do that today or this week. social policy issues. Initially, he him appreciate his ability to keep his I believe we have time. I believe we worked on issues like child nutrition, sense of humor even during the most have the opportunity to right a his- poverty, Social Security, social serv- stressful times. toric wrong. We have not just an oppor- ices for the aged, and unemployment In recent years, Rich has served as tunity to right a historic wrong but insurance. Rich cocreated and coau- the deputy assistant director of CRS’s also an obligation to get this right. thored a widely circulated CRS report domestic social policy division. In that I yield the floor. on Federal social welfare spending. He role, he has mentored and helped de- velop many of the division’s managers, I suggest the absence of a quorum. was also a coauthor and contributor to analysts, and research assistants. He The PRESIDING OFFICER. The several chapters in the House Ways and has also played a central role in re- clerk will call the roll. Means Committee print ‘‘Children in The senior assistant legislative clerk viewing written work produced by the Poverty,’’ which provided a detailed proceeded to call the roll. division, helping to ensure its accu- look at the incidence and characteris- Mr. MCCONNELL. Mr. President, I racy, completeness, and quality. More- tics of child poverty in the United ask unanimous consent that the order over, in his work as a division man- States. for the quorum call be rescinded. ager, Rich has served on numerous ad- Rich ultimately became heavily in- The PRESIDING OFFICER. Without visory panels that have recommended volved in providing research and ana- objection, it is so ordered. organizational practices and policies Mr. MCCONNELL. Mr. President, it is lytical support to Congress on many for CRS, many of which have been pretty obvious, based on the announce- health policy issues, including analyses adopted. ment Senators have made, that we are of aggregate national health expendi- Rich’s policy expertise has been experiencing the first partisan fili- tures, the Medicare hospital prospec- broadly recognized. He is regularly buster of a Supreme Court nominee in tive payment system, the Medicare Ad- sought for his expertise at professional the history of the country. vantage program, and Medicare cata- meetings and conferences. He was nom- We have had plenty of time to discuss strophic drug costs. Additionally, he inated to the National Academy of So- Judge Gorsuch and his credentials both has worked on numerous issues related cial Insurance in 2002 and has served on in committee and on the floor, and I to Medicaid. He both directed a team of the steering committee of the National think it is now important to move for- CRS analysts as well as contributed his Health Forum. He has also been recog- ward. own analysis to the Medicaid ‘‘Yellow nized with numerous Library of Con- CLOTURE MOTION Book,’’ a 1988 House Ways and Means gress special achievement awards. Therefore, I send a cloture motion to Committee print that provided a com- Rich has devoted nearly his entire the desk for the nomination. prehensive analysis of the Medicaid distinguished professional career to The PRESIDING OFFICER. The clo- program as it existed at the time. Rich supporting the work of Congress and to ture motion having been presented also managed the 1993 update of the helping build and strengthen CRS and under rule XXII, the Chair directs the ‘‘Yellow Book.’’ advance its mission. clerk to read the motion. Rich’s analyses have typically in- We will miss Rich, but we wish him The senior assistant legislative clerk volved quantitative research meth- and his family the best of luck moving read as follows: odologies, modeling techniques, and forward.

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