[Pages S554-S561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

EXECUTIVE CALENDAR

The PRESIDING OFFICER. The clerk will report the nomination.
The senior assistant legislative clerk read the nomination of
Elisabeth Prince DeVos, of Michigan, to be Secretary of Education.
The PRESIDING OFFICER. The majority leader.

Cloture Motion

Mr. McCONNELL. Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The senior assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the nomination
of Elisabeth Prince DeVos, of Michigan, to be Secretary of
Education.
Mitch McConnell, David Perdue, Johnny Isakson, Tom
Cotton, Mike Crapo, James E. Risch, Pat Roberts, Roy
Blunt, John Boozman, Lamar Alexander, John Barrasso,
Orrin G. Hatch, Jeff Flake, John Cornyn, Shelley Moore
Capito, John Thune, Richard Burr.

The PRESIDING OFFICER. The Senator from Missouri.

Nomination of Neil Gorsuch

Mr. BLUNT. Mr. President, I am proud to have a chance to speak in
support of your fellow Coloradan, Neil Gorsuch, President Trump's
nominee to be an Associate Justice of the Supreme Court.
Clearly, we all understand this is an important decision and an
important institution. The Supreme Court is the only Court specified in
the Constitution and often the final arbiter of how the Constitution
and the law is to be applied. In the history of the Court, in the
history of the country, only 112 individuals have had the honor to
serve on the Supreme Court. As we debate the qualifications and
qualities of the person who has been nominated, and I hope to see
confirmed as the 113th person to serve as an Associate Justice or a
Justice on the Court, it is really vital we understand that we have a
nominee who has a deep understanding and appreciation of the role of
the Court and the role the Court plays in our democracy.
Judge Gorsuch embodies these principles through a lifetime of
service, and he has really prepared himself in many unique ways for
this moment. He graduated from Columbia University, where he was
elected to Phi Beta Kappa and earned his law degree from Harvard Law
School. After law school, Judge Gorsuch served as a Supreme Court clerk
to two different Justices, Justice Byron White and Justice Anthony
Kennedy. It has been pointed out that if Judge Gorsuch is confirmed to
serve on the Court, he will be the first person ever to serve with
someone for whom he clerked, and hopefully he and Justice Kennedy will
have an opportunity to serve together.
After clerking on the Court, he went on to a successful career in
private law

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practice, spending 10 years litigating a broad range of complex trials
and appeals.
In 2004, just in case his Harvard law degree wasn't enough, as a
Marshall scholar, he received a doctorate in philosophy from Oxford
University.
At every point in his preparation, it has been understood he was at
the top of that preparatory activity. He has served his country in the
Justice Department, working as the Principal Deputy Associate Attorney
General. In 2006, 10 years ago, President George W. Bush nominated him
to serve on the Tenth Circuit Court of Appeals. At the time of his
nomination, the American Bar Association gave him a unanimous ``well
qualified'' rating, the highest rating. The Senate then confirmed his
nomination unanimously by a voice vote.
Today I believe the Senate has 11 Democrats serving with us who were
part of that unanimous process. In his decade on the Tenth U.S. Circuit
Court of Appeals bench, Judge Gorsuch has demonstrated a steadfast
commitment to upholding the rule of law and interpreting the
Constitution as its authors intended.
I am confident he will continue to adhere to the Constitution, apply
the rule of law, and not legislate from the bench. I think he
understands, as Justice Scalia did, that the job of a Justice of the
Supreme Court is not to decide what the law should be or what the
Constitution, in their opinion, should say but decide what the law is
and what the Constitution does say.
His keen intellect and devotion to law are very well understood and
appreciated throughout the legal profession. He has the integrity, the
professional qualifications, and the judicial temperament to serve on
the Nation's highest Court.
Mr. President, I ask unanimous consent to have printed in the Record
an editorial from earlier this week.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Denver Post, Jan. 26, 2017]

Trump Would Do Well to Consider Neil Gorsuch for Supreme Court

(By the Editorial Board)

Then-U.S. Sen. Ken Salazar, right, introduces Neil Gorsuch
at his nomination hearing to the U.S. Court of Appeals for
the 10th Circuit on June 21, 2006. Gorsuch is being
considered as a possibly replacement for the late U.S.
Supreme Court justice Antonin Scalia.
President Donald Trump is on the verge of making his most
enduring appointment to date and we are encouraged by one of
the names on his list to replace former Supreme Court Justice
Antonin Scalia.
Neil Gorsuch is a federal judge in Denver with Western
roots and a reputation for being a brilliant legal mind and
talented writer. Those who have followed Gorsuch's career say
that from his bench in the U.S. 10th Circuit Court of Appeals
he has applied the law fairly and consistently, even issuing
provocative challenges to the Supreme Court to consider his
rulings.
Liberals who dreamed of a less-conservative Merrick Garland
on the court will undoubtedly gasp at a suggestion that
Gorsuch would be a good addition to a court that has been
shorthanded for more than a year.
Gorsuch is most widely known for ruling in the Hobby Lobby
contraception case before it reached the Supreme Court in
2014. His controversial decision was upheld in a 5-4 vote.
Gorsuch wrote in the case that those with ``sincerely held
religious beliefs'' should not be forced to participate in
something ``their religion teaches them to be gravely
wrong.''
We disagreed with that ruling, saying the Supreme Court
wrongly applied constitutional protections of religious
freedom to a corporation that remained owned by a small group
of like-minded individuals.
We argued that even closely held corporations--primarily
functioning as money-making entities and not religious
institutions--shouldn't be able to opt out of the Affordable
Care Act mandate that insurance cover contraception by citing
First Amendment protections intended for individuals and
churches.
But in considering Gorsuch's body of work and reputation--
and yes, we like his ties to Colorado as well--we hope Trump
gives him the nod.
We are not afraid of a judge who strictly interprets the
Constitution based solely on the language and intent of our
nation's founders, as long as he is willing to be consistent
even when those rulings conflict with his own beliefs.
As Denver Attorney Jason Dunn, who considers himself a
longtime fan of Gorsuch, explains, his views stem ``from a
belief in a separation of powers and in a judicial modesty
that it is not in the role of the courts to make law. Justice
Scalia would put it: If you like every one of your rulings,
you're probably doing it wrong.''
A justice who does his best to interpret the Constitution
or statute and apply the law of the land without prejudice
could go fair to restore faith in the highest court of the
land. That faith has wavered under the manufactured and false
rhetoric from critics that the high court has become a
corrupt body stacked with liberals. And while Democrats will
surely be tempted to criticize the nomination of anyone Trump
appoints, they'd be wise to take the high road and look at
qualifications and legal consistency rather than political
leanings.
Gorsuch, at 49, will have years to whittle away at that
damaging lack of trust. A July 2016 Gallup Poll found that 52
percent of Americans disapproved of the way the Supreme Court
handled its job. The finding is striking, considering the
same poll in 2000 found only 29 percent of Americans
disapproved.
We could do far worse than a thoughtful graduate from
Columbia, Harvard and Oxford universities, who clerked for
two Supreme Court justices and calls Denver home.

Mr. BLUNT. I wish to share a little of that editorial where the
Denver Post says:

We are not afraid of a judge who strictly interprets the
Constitution based solely on the language and intent of our
nation's founders, as long as he is willing to be consistent
even when those rulings conflict with his own beliefs.
As Denver Attorney Jason Dunn, who considers himself a
longtime fan of Gorsuch, explains, his views stem ``from a
belief in a separation of powers and in a judicial modesty
that it is not in the role of the courts to make law. Justice
Scalia would put it: If you like every one of your rulings,
you're probably doing it wrong.''

That is similar to what you and I heard Judge Gorsuch say last night;
that a good judge doesn't rule based on what a judge likes to have
happen but what the law and the Constitution insists does happen.
Going back and continuing just one more paragraph from that Denver
Post editorial:

A Justice who does his best to interpret the Constitution
or statute and apply the law of the land without prejudice
could go far to restore the faith in the highest court of the
land. That faith has wavered under the manufactured and false
rhetoric from critics that the high court has become a
corrupt body stacked with liberals. And while Democrats will
surely be tempted to criticize the nomination of anyone Trump
appoints, they'd be wise to take the high road and look at
qualifications and legal consistency rather than political
leanings.

That is in the middle of that editorial that is now in the Record.
The Supreme Court is one of the most important legacies this
President is likely to leave. I think he made a very well-considered
and right choice in selecting Judge Gorsuch to begin shaping the long-
term view of the Court. I look forward to hearing more from the judge
as this confirmation process moves forward and to seeing him confirmed
as an Associate Justice of the Supreme Court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, we began public hearings on the Supreme
Court nominees in 1916. Since we began those, the Senate has never
denied a hearing or a vote to a pending Supreme Court nominee--never,
since 1916 until last year.
Last year Senate Republicans waged an unprecedented blockade against
the nomination of Chief Judge Merrick Garland, a fine judge with
impeccable credentials and with strong support from both Republicans
and Democrats, a man who should be on the Supreme Court today. This is
the first time since 1916 that had ever been done. Instead, bowing to
the extreme right of their party, Republicans who knew him and who even
had said publicly before how much they respected him and how he should
be on the Supreme Court refused even to meet with him, let alone accord
him the respect of a confirmation hearing--even though the Constitution
says that we shall advise and consent and even though each one of us
has raised our hand in a solemn oath saying we will uphold the
Constitution.
So this is exactly what happened. The Republicans held hostage a
vacancy on the Supreme Court for a year so that their candidate for
President could choose a nominee. The blockade of the Merrick Garland
nomination was shameful, but I think it is also corrosive for our
system of government. Candidate Donald Trump, who verbally attacked a
sitting Federal judge in what Speaker Ryan called ``a textbook example
of a racist comment,'' encouraged Senate Republicans to ``delay, delay,
delay.'' Candidate Trump then went further. He said he would

[[Page S556]]

outsource the vetting of potential nominees to far-right organizations,
many of them lobbying organizations, that want to stack the judiciary
with ideological conservatives who are outside the mainstream. He
promised a nominee who would overturn 40 years of jurisprudence
established in Roe v. Wade. With the selection of Judge Gorsuch, it
appears as though he is trying to make good on that promise.
When we confirmed Judge Gorsuch for the Tenth Circuit Court of
Appeals--and I was a Member of the Senate at the time--I knew he was
conservative, but I did not do anything to block him because I hoped he
would not impose his personal beliefs from the bench. In fact, at his
confirmation hearing in 2006, Judge Gorsuch stated that ``precedent is
to be respected and honored.'' He said it is ``unacceptable'' for a
judge to try to impose ``his own personal views, his politics, [or] his
personal preferences.'' Yet, just last year, he tried to do that. He
called for important precedent to be overturned because it did not
align with his personal philosophy.
From my initial review of his record, that I have just begun, I
question whether Judge Gorsuch meets the high standard set by Merrick
Garland, whose decisions everybody would agree were squarely within the
mainstream. And with the ideological litmus test that President Trump
has applied in making this selection, the American people are justified
to wonder whether Judge Gorsuch can truly be an independent Justice. So
I intend to ask him about these and other important issues in the
coming months.
Republicans rolled the dice last year. They subjected the Supreme
Court and the American people to a purely political gamble. They
ignored the Constitution and did something that had never been done
before in this country.
I know President Trump likes to boast that he won the election in a
massive landslide. Well, of course he didn't. Secretary Clinton
received more than 2.8 million more votes from the American people than
President Trump. But more importantly, due to Senate Republicans'
political gambit, the U.S. Supreme Court clearly lost in this election.
This is really no way to treat a coequal branch of government, and it
is certainly not the way to protect the independence of our Federal
judiciary--something that is the bedrock of our Constitution.-
The President's electoral college victory--which was far narrower
than either of President Obama's victories--is hardly a mandate for any
Supreme Court nominee who would turn back the clock on the rights of
women, LGBT Americans, or minorities; or a nominee who would use
theories last seen in the 1930s to undermine all we have accomplished
in the last 80 years. If he follows these right-wing lobbying groups
who helped vet him for the President, if he follows what they want,
then critical programs, like Social Security and Medicare and Medicaid,
key statutes, including the Civil Rights Act, the Voting Rights Act,
and the Clean Air Act, could well be at risk.
So after nearly a year of obstruction--unconstitutional,
unprecedented obstruction--I really don't want to hear Republicans say
we now must rush to confirm Judge Gorsuch. I know the President thinks
they should, but I also wonder how seriously even he takes this. His
announcement yesterday was like he was announcing the winner of a game
show: I brought in these two people, and now here is the winner. We are
talking about the U.S. Supreme Court; treat it with the respect it
deserves.
For all of the Republican talk of Democrats setting the standard with
the confirmations of Justice Sotomayor and Kagan, they ignored the
standard they set in the shameful treatment of Chief Judge Garland. In
fact, I remember when--and I was chairman at the time--when we set the
schedule for the hearings and the vote on Justice Sonia Sotomayor, and
I remember the Republican leader rushing to the floor and saying: Oh,
this is terrible. You are rushing it. You are moving it so fast.
I pointed out that we were setting the schedule to the day--to the
day--the same as we set for Chief Justice John Roberts. So I asked the
obvious question: Are you telling me the schedule was OK for him but
not OK for her? We followed the schedule.
We need time to look at all of these nominees.
I would note, as one who has tried cases in Federal courts, as a
lawyer, and as one who has chaired the Judiciary Committee, I would say
the courts are a vital check on any administration, especially one
that, like this one, has found itself on the losing side of an argument
in Federal court in only its first week--they lost on something that a
first-year law student could have told them they were going to lose.
But with great political fanfare, the President issued an order.
Fortunately, the order was seen for what it was: No Muslims need show
up in our country.
Judge Gorsuch, to be confirmed, has to show that he is willing to
uphold the Constitution even against President Trump, even against the
lobbying groups the President had vetting him.
His record includes a decade on the Federal bench. The Judiciary
Committee must now carefully review his decisions. We have to conduct a
thorough and unsparing examination of his nomination. That is what I
will do, just as I have done for every nominee--everybody currently on
the Supreme Court and many before them. Whether nominated by a
Republican or a Democrat, I did a thorough and unsparing examination of
their nomination. The Senate deserves nothing less. More importantly,
the American people deserve nothing less.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.

Travel Ban

Mr. KAINE. Mr. President, I rise to speak on a special day. Today is
my wife's birthday. Today is National Freedom Day, when we recognize
President Lincoln's signing the 13th Amendment banning slavery. This is
the reason we celebrate Black History Month in February.
Today, February 1, begins American Heart Month, acknowledging the
great heart of the American people, as well as the need for health
care.
But today, February 1, is also the first day of World Interfaith
Harmony Week. In 2010, King Abdallah II of Jordan spoke before the U.N.
General Assembly, and he asked the U.N. to declare a week every year to
promote understanding and tolerance between the world's religions. In
his speech before the U.N., this is what King Abdallah said:

It is also essential to resist forces of division that
spread misunderstanding and mistrust, especially among
peoples of different religions. The fact is, humanity
everywhere is bound together, not only by mutual interests,
but by shared commandments to love God and neighbor, to love
the good and neighbor. What we are proposing is a special
week, during which the world's people, in their own places of
worship, could express the teachings of their own faith about
tolerance, respect for others and peace.

The resolution was adopted unanimously at the U.N. General Assembly,
and all nations, religions, and peoples were asked to observe it.
By happy coincidence, as the Presiding Officer knows, King Abdallah
is in Washington right now. He visited with Senators here at the
Capitol yesterday and today. Earlier today I met with him, and I told
him I would speak in his honor in the hopes that his words might
inspire us at a challenging time.
The word of last Friday's Executive orders regarding immigration and
refugees--orders which implemented the President's campaign rhetoric to
implement a Muslim ban--shocked the country this weekend. I traveled to
Roanoke and Blacksburg, VA--communities in the southwestern portion of
my Commonwealth. I was there to meet with local health care providers
and students pursuing health care careers. I had planned the trip to go
talk about the Affordable Care Act, but at my first event, two families
came to me with a concern. Working together with Roanoke Catholic
charities, they had helped settle a Syrian refugee family in Blacksburg
1 year ago. The Syrian family was a mom and dad and four kids. These
sponsors told me how well the family was doing and how welcoming this
community was in bringing this family to Virginia and taking them in.
The employer of the Syrian father runs a construction company, and he
hired him to do construction work. He told me, kind of chuckling about
it: Senator, not all my workers agree with me on politics, but no one
better say a

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bad word about their Syrian coworker around them.
He went on to describe how the employees at his construction firm had
done a number of things, including collecting funds to help the
children have soccer shoes there, in Southwest Virginia. But they
didn't tell me this story because it is a happy story about
resettlement of a family, although that is a point of the story.
Here is why they came to see me. The community was poised to welcome
a second family from Syria--a mother, father, and five minor children--
to meet them at the Roanoke airport tomorrow and help them find a home
in the United States. This refugee family they were supposed to meet
tomorrow fled Syria 4 years ago. They had been living in a refugee camp
in Jordan, undergoing 4 years of vetting in the hopes they could come
to America. Now, their sponsors pressed papers into my hand and said:
What will happen to this family? Are they now shut out of the dream
they have worked so hard to achieve? Are we now shut out from our
desire to offer them the Christian hospitality of our community?
We have been working to get answers to these questions, but as of
today, we know nothing about this family's fate.
There are so many questions I struggle to answer in the aftermath of
these orders. The orders single out people based on their Muslim faith
by targeting primarily Muslim nations and allowing exceptions to be
made for Christians and other religious minorities. Why?
The orders single out seven countries--countries where citizens have
been exposed to genocide and other crimes against humanity--while
leaving countries that have actually exported terrorists to the United
States untouched. Why?
The order was applied to legal permanent residents of the United
States until clarified and also to brave people who had helped American
soldiers on the battlefield, thereby earning a special immigrant visa
status. Why?
We can have security procedures that are based on the danger of an
individual rather than a stereotype about where they were born or how
they worship.
I am called to reflect on these events by King Abdallah's words
suggesting that the world should recognize this week as World
Interfaith Harmony Week. He told us today that the order is being
viewed with deep anxiety in his country, which is one of our strongest
allies in the Arab world--indeed, in the entire world. I am called to
reflect on these events by my own citizens in Roanoke and Blacksburg,
working with a church group, who just want to serve others in a way
commanded by their faith and by all faiths.
At the Presiding Officer's desk, there is a book of the rules of the
Senate and there is also a Bible. In a week where all are called to
reflect upon their own religious traditions of tolerance and peace,
there is wisdom in that Book for our Nation.
Exodus 22:21: ``You shall not wrong or oppress an alien, for you were
aliens in the land of Egypt.''
Leviticus 19:34: ``The alien who resides with you shall be to you as
a citizen among you; you shall love the alien as yourself for you were
aliens in the land of Egypt.
Deuteronomy 1:16: ``Give the members of your community a fair hearing
and judge rightly between one person and another whether citizen or
resident alien.''
Deuteronomy 10:18-19: ``For the Lord your God loves the strangers,
providing them with food and clothing. You shall also love the stranger
for you were strangers in the land of Egypt.''
Deuteronomy 24:17: ``You shall not deprive a resident alien or an
orphan of justice.''
Deuteronomy 26:5: ``A wandering Aramaean was my ancestor, he went
down into Egypt and lived there as an alien.''
Matthew 2:13-23: Jesus began his life as a refugee in Egypt.
Matthew 25:34: ``I was hungry and you fed me. I was thirsty and you
gave me drink. I was a stranger and you invited me into your home.''
The traditions of this nation, other nations, religions, and peoples
point us in the same direction. Pope Francis reminded us of these very
words when he spoke to us in the fall of 2015 and told us--as
individual leaders and as a nation--that the yardstick we use to
measure and evaluate others is the yardstick that will be applied to
us.
On this opening day of World Interfaith Harmony Week, I pray that we
commit to peaceful understanding and appreciation of people from
diverse faith backgrounds. I pray that the unjust immigration orders
that target suffering people based on where they were born or how they
worship will be rescinded. I pray that Congress and the administration
will work together to set up appropriate security procedures that do
not discriminate on the grounds of religion or national origin, and I
pray that we will be true to our best principles and not sacrifice them
for the sake of politics.
I yield the floor.
The PRESIDING OFFICER (Mr. Lee). The Senator from Colorado.

Nomination of Neil Gorsuch

Mr. GARDNER. Mr. President, as I stated repeatedly before the
Presidential election of this past year, we stood, and continue to
stand, at a very pivotal time in our Nation's history.
After 8 years of using the judicial and regulatory systems to push
through its legislative agenda, the balance of power had shifted from
what our Founders intended. Our Founders intended the Congress to make
the laws and write the laws, the executive branch to implement the
laws, and the judiciary to be guardians of the Constitution, not to
make the laws.
That is why we said that the next President of the United States,
whether they be Democrat or Republican, would have the opportunity to
fill the vacancy on the Supreme Court, following the Biden rule--the
edict that there wouldn't be a confirmation hearing for a Supreme Court
nominee until after that year's Presidential election--to allow the
American people to make their decision, giving the American people a
say in the direction of this country for years to come. In return, they
have given us this nominee.
It is with great pride that I rise today to talk about the nominee
today--a fellow Coloradan, Judge Neil Gorsuch, President Trump's
nominee to the Supreme Court. Judge Gorsuch comes to the Court with
that unique western perspective that the Presiding Officer and I share.
Our States of Utah and Colorado obviously like to see that western
perspective shared at the Tenth Circuit Court, where it is housed in
the West, but at every level of our courts and to the Supreme Court--
adding to Justice Kennedy's background and to others who share that
same perspective and history in the Supreme Court.
Born in Denver, Judge Gorsuch is a fourth-generation Coloradan,
coming from a long line of individuals who have dedicated their life to
service not only to the State of Colorado but to the Nation. His
mother, Ann Gorsuch, served in the Colorado House of Representatives
and, during the Reagan administration, she was the first female
Administrator of the Environmental Protection Agency. His grandfather,
John Gorsuch, founded one of Denver's largest law firms, Gorsuch
Kirgis, where both he and Neil's father, Dave, practiced throughout the
firm's successful 60-year-old history. His stepfather, Robert Buford,
was a former speaker of the Colorado House of Representatives who went
on to become the head of the Bureau of Land Management.
Judge Gorsuch is also one of our country's brightest legal minds,
with a sterling reputation, and significant experience as a Federal
judge and a private litigator. He has impeccable academic credentials
and is a widely respected legal scholar. He received his bachelor's
degree from Columbia University, graduated from Harvard Law School, and
was a Marshall scholar at Oxford University, where he obtained a
doctorate in legal philosophy.
Of course, I cannot forget the summer he spent at the University of
Colorado as well. Judge Gorsuch clerked for two Supreme Court
justices--Byron White, a Colorado native as well. In fact, in his
comments last night after the announcement of his nomination, Judge
Gorsuch mentioned that he worked for the only Coloradan to serve on the
Supreme Court and also the only leading rusher in the NFL to ever serve
on the Supreme Court.
He also clerked for Justice Anthony Kennedy, as well as for Judge
David Sentelle on the U.S. Court of Appeals for the DC Circuit.
Following his clerkships, Judge Gorsuch went into private

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practice, eventually rising to the rank of partner in the elite
litigation law firm of Kellogg Huber, leaving practice in 2005 to serve
as a high-ranking official in the Bush administration Justice
Department. A year later, President George W. Bush nominated Gorsuch to
serve on the Tenth Circuit Court of Appeals, a position for which he
was confirmed by a unanimous vote. I think it is very telling that not
only was he confirmed by a unanimous vote, but roughly 11 or 12 members
of the Democratic conference were there to vote for Judge Gorsuch.
There are people serving today who voted for Judge Gorsuch. I believe
SCOTUSblog recently reported that when Judge Gorsuch was nominated to
the Tenth Circuit Court, then, Neil Gorsuch's confirmation hearing was
sparsely attended. I believe it mentioned that only a few people
attended. I think Senator Lindsey Graham, our colleague from South
Carolina, was one of the Senators to attend his confirmation hearing. I
believe Senator Leahy, our colleague from Vermont, submitted questions
for the record. But as SCOTUSblog cited, very few people attended his
confirmation hearing because of the high caliber and high quality of
the nomination. He was introduced by my predecessor from Colorado, Ken
Salazar, and was praised from Senator Salazar's perspective for being
impartial, fair, and the having the kind of temperament that we need in
the circuit court.
Judge Gorsuch is an ardent faithful defender of the Constitution and
has the appropriate temperament, as then-Senator Salazar noted, to
serve on the Nation's highest Court. Of course, he was then talking
about the Tenth Circuit Court. Judge Gorsuch recognizes that the
judiciary isn't the place for social or constitutional experimentation,
and efforts to engage in such experimentation delegitimizes the Court.
He has said:

This overweening addiction to the courtroom as the place to
debate social policy is bad for the country and bad for the
judiciary. . . . As a society, we lose the benefit of the
give-and-take of the political process and the flexibility of
social experimentation that only the elected branches can
provide.

Here we see his understanding that certain debates are to take place
where debate is held by those elected directly by the people--in the
Congress.
Judge Gorsuch believes in the separation of powers as established by
our Founding Fathers in the Constitution. As he rightly stated, ``a
firm and independent judiciary is critical to a well-functioning
democracy,'' understanding the value of three branches of government,
the value of an independent judiciary, understanding that there are
certain things dedicated exclusively to the judiciary, to the
legislative branch, and to the executive.
Judge Gorsuch is not an ideologue. He is a mainstream jurist who
follows the law as written and doesn't try to supplant it with his
personal policy preferences. He said: ``Personal politics or policy
preferences have no useful role in judging; regular and healthy doses
of self-skepticism and humility about one's own abilities and
conclusions always do.''
Judge Gorsuch understands the advantage of democratic institutions
and the special authority and legitimacy that come from the consent of
the government. He said: ``Judges must allow the elected branches of
government to flourish and citizens, through their elected
representatives, to make laws appropriate to the facts and
circumstances of the day.''
Judge Gorsuch appreciates the rule of law and respects the considered
judgment of those who came before him. He said:

Precedent is to be respected and honored. It is not
something to be diminished or demeaned.

This morning, I had the opportunity to meet with Judge Gorsuch--of
course, knowing him from Colorado and the town of Boulder, where he
lives today, and also where I received my law degree. We spent a lot of
time talking about our favorite passions in Colorado, whether it is
fly-fishing, whether it is paddle-boarding. Of course, he spends a lot
of time out on the Boulder Reservoir, enjoying recreation--just like
every other person in Boulder does and every other person in Colorado
does--as somebody who understands the great outdoors. We talked about
the rule of law. We talked about the separation of powers, his concern
over originalism and textualism, and following in the footsteps of
other great Justices on the Supreme Court.
We talked about something he said last night when his name was put
forward for nomination by President Trump. We talked about a statement
he made to this effect: If a judge likes every opinion that they have
written, every decision that they have reached, they are probably a bad
judge. I think this goes to his insistence that, as a judge, you must
put your personal beliefs, your personal policies aside to rule as the
rule of law requires and to rule as the Constitution and the statutes
require.
We discussed in our meeting decisions he made of which he didn't like
the outcome but believed that the rule of law required a certain
outcome--whether it was a felon who possessed a handgun or whether the
Federal Government had misspoken to the accused and he believed that
the government had done the accused wrong.
While Judge Gorsuch personally believed that perhaps he would have
liked to have found a guilty decision or agreed with a guilty decision,
he couldn't do it because of the standards that were applied in the
case--the grammatical gravity that had to be ignored in order to reach
the conclusion the lower court had reached.
His ability to put personal opinions aside, I think, is what makes
him an ideal candidate for the U.S. Supreme Court. Over the coming days
and months, we are going to have many opportunities to talk about the
qualities of Judge Gorsuch, but we have already heard many people
complain that perhaps they didn't pay enough attention to Judge Gorsuch
10 years ago. They talked about their concern, this newfound concern
that was not available--that apparently wasn't there 10 years ago when
this Senate unanimously supported Judge Gorsuch.
I have even heard complaints that they didn't like the way that his
nomination was announced--a complaint about how the President announced
the nomination. Those are the kinds of concerns we are hearing about
Judge Gorsuch today because they didn't like the way he was announced.
We are going to have a lot of opportunity to talk about his
temperament, those things he believes are important as a judge, those
things he believes are important to make decisions. I look forward to
having a conversation about what I believe is a brilliant legal mind--
someone of a brilliant legal mind, someone with a sterling reputation,
someone who has been known as a feeder judge of clerks to the highest
Court in the land, someone who rules on the law and not on his personal
beliefs, someone who believes in the Constitution and not in the role
of legislator from the bench.
I am grateful I had this opportunity to support a Coloradan, a man of
the West, to Nation's highest Court, and I look forward to working to
place Judge Gorsuch as Associate Justice to the U.S. Supreme Court.
Mr. President, I yield back my time.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, we are in the second week of the Trump
Presidency, and it is pretty clear that something is happening in our
country. All across the Nation, Americans in quiet towns and boisterous
cities are taking to the streets to fight for American values. They are
protesting in the streets and calling their Representatives. They are
getting involved in local organizations, and they are organizing around
the causes they support.
We know that American values are threatened when the President issues
an order banning immigrants from the country based on their religion.
We know that American values are threatened when politicians try to
break apart a health care system that has extended medical benefits to
millions of Americans, and we know that American values are threatened
when a President tries to stack his government with billionaires and
insiders who have a history of grinding working people into the dirt.
Yesterday something happened that is a threat to our American values.
President Trump nominated Judge Neil Gorsuch to serve on the Supreme
Court. For years now, I have repeated this warning: America's promise
of equal justice under the law is in danger. Over the last three
decades, as the

[[Page S559]]

rich have grown richer and middle-class families have struggled, the
scales of justice have also tilted, tilted in favor of the wealthy and
the powerful.
This is not an accident. It is part of a deliberate strategy to turn
our courts into one more rigged game for folks at the top, and its
effects have been devastating. Recent court decisions have protected
giant businesses from accountability, made it harder for people who
have been injured or cheated to get a hearing, gutted longstanding laws
protecting consumers who have been swindled, and unleashed a flood of
secret money into our politics that is rapidly tilting the entire
government in favor of the wealthy.
Billionaires and corporate giants have launched a full-scale attack
on fair-minded, mainstream judges. It has happened at every level of
our judiciary, but the best example was the unprecedented blockade of
Judge Merrick Garland's nomination to the Supreme Court. Judge Garland
was an obvious consensus nominee and a straight shooter who followed
the law. Why block him? The problem was that Judge Garland's career
didn't reflect a sufficient willingness to bend the law to suit the
needs of the rich and powerful. And for that sin, far-right groups,
financed by Big Business interests, spent millions of dollars attacking
him, to torpedo his nomination and keep that seat open.
They did something else that is even more damaging: Far-right groups
also drew up a list of ``acceptable'' Supreme Court nominees, people
who demonstrated they were sympathetic to the rich and the powerful.
Judge Neil Gorsuch made the cut, and his nomination is their reward.
Judge Gorsuch is intelligent and accomplished. He is polite,
respectful, and articulate. Make no mistake, his professional record,
which I have reviewed in detail, clearly and consistently favors the
interests of big corporations over workers, big corporations over
consumers, and big corporations over pretty much anybody else.
Let's not mince words. The nomination of Judge Gorsuch is a huge gift
to the giant corporations and wealthy individuals who have stolen a
Supreme Court seat in order to make sure that the justice system works
for them. What I am saying shouldn't be controversial. They haven't
made a secret of what they were doing. This is exactly why Judge
Gorsuch has been on their list for 4 months. He is the payoff for their
multimillion-dollar investment.
Throughout his professional career, Judge Gorsuch has shown a truly
remarkable insensitivity to the struggles of working Americans and an
eagerness to side with businesses that break the rules over workers who
are seeking justice.
Even before he became a judge, Judge Gorsuch famously argued in favor
of limiting the ability of investors and shareholders to bring lawsuits
when companies commit fraud, whining about how annoying it is for
billionaire corporations to have to face their investors when they
cheat them.
As a judge for more than a decade, he has twisted himself into a
pretzel to make sure that the rules favor giant companies over workers
and individual Americans. Let me just count some of the ways. He has
sided with employers who deny wages, employers who improperly fire
workers, employers who retaliate against whistleblowers for misconduct.
He has sided with employers who denied retirement benefits to their
workers. He has sided with big insurance companies against disabled
workers who were denied benefits. He has ruled against workers in all
kinds of discrimination cases. He has even argued that the rights of
corporations outweigh the rights of the people working for them, for
example, allowing businesses to assert religious beliefs so they can
limit their employees' access to health care.
Listen to that one again. He thinks that a company can assert a
religious belief and decide whether female employees get access to
birth control. Let's be clear. That means a lot of employees will be
living at the whim of their employers.
Judge Gorsuch has written dismissively about lawsuits to vindicate
the rights of vulnerable people. Equal marriage? Assisted suicide? Keep
those issues out of his courtroom.
He is willing to open the doors wide when big corporations show up in
his court to challenge health and safety rules they don't like or
regulations to prevent them from polluting our air and water, poisoning
our food, undermining our public safety, or just plain cheating people.
When that happens, Judge Gorsuch is ready to go, to override the rules
with his own views. On that score, he is even more extreme than Justice
Scalia.
This is exactly the type of Supreme Court Justice that giant
corporations want, but they have never been quite so brazen about it.
Spending millions to slime a consensus straight shooter nominee like
Merrick Garland and steal a Supreme Court seat, then drawing up a
public list of ``acceptable'' alternatives and handing it over to a
billionaire President so he can do his buddies a favor. That is bold.
That is bold, and that is not how America is supposed to work.
Our courts are supposed to be neutral arbiters, dispensing justice
based on the facts and the law, not people chosen to advance the
interests of those at the top.
Let's be clear. This fundamental principle might be more important
today than it has ever been in modern history. Every day our new
President finds more ways to demonstrate his hostility for an
independent judiciary, for a civil society, and for the rule of law.
That is precisely the reason that our Constitution gives us a neutral,
independent judiciary. We don't need Justices who have been handpicked
for their willingness to kowtow to those with money, power, and
influence. We need Justices who will stand up to those with money,
power, and influence.
Judge Gorsuch may occasionally write in vague terms about the
importance of the independent courts. Today, right now, that simply is
not good enough. Now, more than ever, the United States needs a Supreme
Court that puts the law first every single time. That means Justices
with a proven record of standing up for the rights of all Americans--
civil rights, women's rights, LGBTQ rights, and all the protections
guaranteed by our laws.
We cannot stand down when American values and constitutional
principles are attacked. We cannot stand down when the President of the
United States hands our highest Court over to the highest bidder, and
that is why I will oppose Judge Gorsuch's nomination.
Mr. President, I yield.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I rise today in support of the nomination
of Judge Neil M. Gorsuch to serve as the next Associate Justice of the
Supreme Court of the United States. Judge Gorsuch has been nominated to
fill the seat left vacant by the late Justice Antonin Scalia.
Justice Scalia was a dear friend of mine, and his death was a great
loss to me and to our country, not just to me personally but for the
whole Nation. Justice Scalia joined the Supreme Court after years of
unbridled activism by the Court, during which time Justices imposed
their own left-wing views--completely unmoored from the law as
written--on the American people.
In response, he led a much needed revolution based on the enduring
principle that the role of a judge is to say what the law is, not what
a judge wishes it were. As the intellectual architect of the effort to
restore the judiciary to its proper role under the Constitution,
Justice Scalia was a singularly influential jurist.
To say that he leaves big shoes to fill is an understatement. Any
worthy successor to his legacy will not only be committed to continuing
his life's work but also capable of delivering the sort of intellectual
firepower and leadership that Justice Scalia provided for decades.
Of all the potential candidates for this position, this vacancy, Neil
Gorsuch stands out as the jurist best positioned to fill this role. His
resume

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can only be described as stellar: Columbia University, a Marshall
Scholarship to study at Oxford, Harvard Law School, clerkships for
Judge Sentelle on the DC Circuit and for Justices White and Kennedy on
the Supreme Court, a distinguished career in private practice and at
the Department of Justice, and more than a decade of service on the
U.S. Court of Appeals for the Tenth Circuit.

Even among his many talented colleagues on the Federal bench, his
opinions consistently stand out for their clarity, thoughtfulness, and
airtight reasoning. In the words of one of his colleagues appointed by
President Carter, Judge Gorsuch ``writes opinions in a unique style
that has more verve and vitality than any other judge I study on a
regular basis.'' He continued: ``Judge Gorsuch listens well and decides
justly. His dissents are instructive rather than vitriolic. In sum, I
think he is an excellent judicial craftsman.''
This view of Judge Gorsuch's capabilities is broadly shared across a
wide swath of legal observers. Consider some other descriptions of his
qualifications from outlets that could hardly be considered
conservative. The New York Times reported on his ``credentials and
erudition.'' The Los Angeles Times called him a ``highly regarded . . .
jurist,'' and ABC News described how ``in legal circles, he's
considered a gifted writer.''
I think there can be no doubt that Judge Gorsuch has the credentials
to make him a capable and effective member of the U.S. Supreme Court.
Nevertheless, I have long held that a nominee's resume alone--no matter
how sterling--should not be considered sufficient evidence to merit
confirmation to the Supreme Court. Rather, we should also consider a
nominee's judicial philosophy. In this analysis, Judge Gorsuch has
developed a record that should command ironclad confidence in his
understanding of the proper role of a judge under the Constitution.
Judge Gorsuch's opinions and writings show a clear fidelity to a
judge's proper role. While his body of work is replete with examples of
this fidelity, I want to point to one example in particular, a lecture
he delivered last year in the wake of Justice Scalia's death that is
one of the most thoughtful and persuasive cases for the proper role of
a judge that I have ever read. In it, he affirmed his allegiance to the
traditional account of the judicial role championed by Justice Scalia,
which he described as such:

The great project of Justice Scalia's career was to remind
us of the differences between judges and legislators. To
remind us that legislators may appeal to their own moral
convictions and to claims about social utility to reshape the
law as they think it should be in the future. But that judges
should do none of these things in a democratic society. That
judges should instead strive (if humanly and so imperfectly)
to apply the law as it is, focusing backward, not forward,
and looking to text, structure, and history to decide what a
reasonable reader at the time of the events in question would
have understood the law to be--not to decide cases based on
their own moral convictions or the policy consequences they
believe might serve society best.

As Justice Scalia put it, ``If you are going to be a good and
faithful judge, you have to resign yourself to the fact that you're not
always going to like the conclusions you reach. If you like them all
the time, you are probably doing something wrong.''
This is exactly the kind of judicial philosophy we need our judges to
espouse, and Neil Gorsuch is exactly the man to embody it on the
Supreme Court. If there is one line in that lecture to which I could
draw attention, it is the quotation of Justice Scalia's formulation of
the very basic notion that a good judge will oftentimes reach outcomes
that he does not personally agree with as a matter of policy. Such a
notion should be uncontroversial.
Indeed, many of Justice Scalia's brightest opinions came in cases in
which I suspect he would have voted differently as a legislator than as
a judge. Yet such a concept might seem wholly foreign to a casual
observer of media coverage of the Supreme Court, in which cases are
invariably viewed through a political lens. Decisions and Justices are
regularly described as liberal or conservative, with little attention
paid to rationale and methodology, the matters properly at the core of
a judge's work. This phenomenon reflects a regrettable dynamic observed
by Justice Scalia himself. As the late Justice observed, when judges
substitute their personal policy preferences for the fixed and
discernible meaning of the law, the selection of judges--in particular,
the selection of Supreme Court Justices--becomes what he called a mini-
plebiscite on the meaning of the Constitution and laws of this country.
Put another way, if judges are empowered to rewrite the laws as they
please, the judicial appointment process becomes a matter of selecting
life-tenured legislators practically immune from any accountability
whatsoever.
If we value such a system of judicial review, a system deeply at odds
with the Constitution's concept of the judiciary, then one can easily
see why judicial selection becomes a matter of producing particular
policy outcomes. Thus, it is easy to see why many on the left who
believe in such a system demand litmus tests on hot-button policy
issues. To them, a judge is not fit to serve unless they rule in a way
that produces a particular policy. Simply put, this is a terrible way
to approach judicial selection. It undermines the Constitution and all
of the crucial principles that it enshrines from the rule of law to the
notion that our government's legitimacy depends on the consent of the
government.
A good judge is not one that we can depend on to produce particular
policy outcomes. A good judge is one we can depend on to produce the
outcomes commanded by the law and the Constitution. Neil Gorsuch has
firmly established himself as that kind of a judge. In Neil Gorsuch's
America, the laws that bind us are made by the people's elected
representatives, not unelected, unaccountable judges. In Neil Gorsuch's
America, the powers and limits of each branch of government are decided
by the Constitution, no matter whether their enforcement produces a
liberal or conservative outcome. In Neil Gorsuch's America, the basic
freedoms of the American people enumerated in the Bill of Rights are
carefully protected, whether they are in fashion lately with the left,
the right, both or neither. In Neil Gorsuch's America, the views that
matter are yours and mine, not those of a handful of lawyers in black
robes in Washington.
For these reasons, I applaud the President for his absolutely stellar
choice. Judge Gorsuch will do us proud as our next Supreme Court
Justice. I will do everything in my power to ensure his confirmation. I
will have more to say on this in the future, but I yield the floor at
this time.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, it hasn't even been 2 weeks, and President
Trump has already demonstrated that he has little tolerance for
independent thinking and dissent. He has his own version of reality,
which is why his administration resorts to alternative facts.
When the media accurately reported how small the crowd was at his
inauguration, he presented us with alternative facts. When the media
pointed out he lost the popular vote by the largest margin of any
President, he boldly proclaimed, without any evidence, that 3 to 5
million people voted illegally. Many consider this whopper as a cynical
way to encourage more States to pass voter suppression laws justified
by the bogus claim of widespread voter fraud.
Just 2 days ago, the President again showed the American people how
intolerant he is of principled dissent when he fired acting Attorney
General Sally Yates after she refused to enforce or defend his totally
unjustifiable, knee-jerk, and probably unconstitutional Executive order
on Muslim immigration.
By firing Sally Yates, the President demonstrated once again that he
values loyalty to himself above service to the American people and
adherence to the Constitution. This is particularly disturbing as we
begin to consider the President's nomination of Judge Neil Gorsuch to
sit on the Supreme Court.
I am only beginning to scrutinize Judge Gorsuch's record, but I am
very concerned that he will be a rubberstamp for President Trump's
radical agenda. You don't have to take my word for it. You only have to
listen to what the President has been saying

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over the past 2 years. In June 2015, then-Candidate Trump told CNN's
Jake Tapper that he would apply a pro-life litmus test for his nominees
to the Supreme Court. He did it again at a press conference last March,
during the third Presidential debate, and shortly after his election.
This isn't the only litmus test President Trump promised to apply. In
February 2016, President Trump committed to appointing a Justice who
would allow businesses and individuals to deny women access to health
care on the basis of so-called religious freedom. In February 2016,
President Trump told Joe Scarborough he would make upholding the Heller
decision on guns another litmus test for his Supreme Court nominee.
Like tens of millions of Americans, I am deeply concerned that
President Trump applied each of these tests before he nominated Judge
Gorsuch to the Supreme Court.
In the weeks and months ahead, I will carefully and extensively
scrutinize Judge Gorsuch's record. I will question him on his judicial
philosophy and how he interprets the Constitution. I will insist he
clarify his position on a woman's constitutionally protected right to
choose, on voting rights, and the appropriate balance between corporate
interests and individual rights. I will do my job as a United States
Senator. The American people deserve nothing less from each of us.
I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Stream Buffer Rule

Mr. McCONNELL. Mr. President, for the last 8 years, the Obama
administration has pushed through a number of harmful regulations that
circumvent Congress, slow growth, shift power away from State and local
governments toward Washington, and kill a lot of jobs. Even on the way
out the door, the former administration's regulatory onslaught
continued as they pushed through more midnight regulations. These
nearly 40 major regulations, which were pushed through by the Obama
administration since election day, would cost Americans a projected
$157 billion, according to one report.
Fortunately, with a new President, we now have the opportunity to
give the American people relief and our economy a boost. One of the
most important tools we have is the Congressional Review Act, which
allows Congress to provide relief from heavyhanded regulations that
hold our country back.
The House just took an important step by sending us two pieces of
legislation that will reassert congressional authority and make a real
impact for the American people.
One of those resolutions will address a regulation that puts U.S.
companies at a competitive disadvantage to private and foreign
companies. Passing this resolution will allow the SEC to go back to the
drawing board so that we can promote transparency, which is something
we all want, but to do so without giving giant foreign conglomerates a
leg up over American workers. We will take it up soon.
The other resolution, which we will take up first, will address an
eleventh-hour parting salvo in the Obama administration's war on coal
families that could threaten one-third of America's coal-mining jobs.
It is identical to the legislation I introduced this week and is a
continuation of my efforts to push back against the former
administration's attack on coal communities.
Appalachian coal miners, like those in my home State of Kentucky,
need relief right now. That is why groups like the Kentucky Coal
Association, the United Mine Workers Association, and 14 State
attorneys general, among others, have all joined together in a call to
overturn this regulation.
The Senate should approve this resolution without delay and send it
to the President's desk. The sooner we do, the sooner we can begin
undoing the job-killing policies associated with the stream buffer
rule. This is not a partisan issue; this is about bringing relief to
those who need it and protecting jobs across our country. I hope our
friends across the aisle will support our Nation's coal miners and join
me in advancing this resolution.
After we address these regulations, both the House and the Senate
will continue working to advance several other CRA resolutions that can
bring the American people relief.

____________________