(Senate - March 29, 2017)

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[Pages S2055-S2096]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  The PRESIDING OFFICER. The clerk will report the joint resolution.
  The senior assistant legislative clerk read as follows:

       A joint resolution (H.J. Res. 67) disapproving the rule 
     submitted by the Department of Labor relating to savings 
     arrangements established by qualified State political 
     subdivisions for non-governmental employees.

  The PRESIDING OFFICER. The majority leader.

                  Congressional Review Act Resolutions

  Mr. McCONNELL. Mr. President, over the last 8 years, American workers 
grappled with a sluggish economy and policies that often made it harder 
for families to get ahead. Even on its way out the door, the Obama 
administration pushed forward with more unfair regulations that hurt 
the middle class. It tried to advance regulations that threatened jobs 
and hindered economic growth. It tried to shift power away from people 
and toward government on everything from education to land management 
  Under the guise of helping more people save for the future, it 
undercut a system of private retirement savings that has served 
millions of Americans very well for decades. It introduced regulations 
that would push more and more Americans into government-run retirement 
plans. These retirement savings regulations are a classic case of the 
whole being worse that the sum of its parts.
  The Obama administration encouraged States and municipalities to set 
up government-run retirement plans for private sector workers. Sounds 
great, some might say, but that is until you see the fine print.
  States always had the power to set up these plans, but they chafed at 
Federal laws protecting the workers who would be automatically enrolled 
in them. They didn't like that the basic retirement protections that 
apply to those who manage private sector retirement plans would apply 
to the government too. So they sought a waiver from long-accepted 
Federal protections like the requirement to invest prudently and the 
rule against self-dealing.
  That is what these regulations are actually about. They allow States 
and cities to create an employer mandate that forces private sector 
workers into these government-run plans. They liberate the States and 
big-city mayors from Federal consumer protections for these hard-earned 
dollars, and they create a competitive advantage for these new 
government-run plans. The end result would be more government at the 
expense of the private sector.
  Fortunately, we can begin to roll back these regulations. We will 
take a vote today to protect workers should big-city governments try to 
force their private sector employees to auto-enroll in government-run 
savings plans. Later, we will advance another CRA to protect workers 
from similar efforts at the State level.
  Congress is able to push back against troubling regulations like 
these because of the tools provided by the Congressional Review Act, or 
CRA. Just last week, we sent the 11th CRA resolution to the President's 
desk, and we hope to add to those regulatory relief efforts again.
  I thank Senator Hatch, the Finance Committee chairman, for his 
leadership on this issue. He understands that

[[Page S2056]]

we need to do more to encourage private retirement savings, and he has 
advocated numerous policies that would do just that. He also 
understands that more government involvement in the retirement of 
private sector workers is not the answer. He introduced companion 
legislation to the House bills we will vote on soon. We should pass 
that legislation without delay so that we can, as the chairman said, 
``give employees and small-business owners more flexibility and freedom 
to choose how to financially invest and build a nest egg for 

                       Nomination of Neil Gorsuch

  Mr. President, on another matter, since Judge Neil Gorsuch was 
nominated to the Supreme Court, Senate Democrats have searched high and 
they have searched low for a reason to oppose him. They looked at his 
background, and they found a Columbia alum, a Harvard Law graduate, and 
an Oxford scholar. They looked at his reputation and found an impartial 
and fair judge, an incisive and eloquent writer, and a humble and even-
tempered man. They looked at his record as a judge and found someone 
who follows the facts where they lead without favoring one party over 
another; someone respected by Democrats, Independents, and Republicans 
alike; and someone who understands that his role is to interpret the 
law, not legislate from the bench.
  Our colleagues across the aisle also had the opportunity to spend 
hours with Judge Gorsuch at his confirmation hearing. Once again, they 
found little to hang their hat on when it comes to a reason to oppose 
him. Instead, the hearings made clear a point recently stated by a 
board member of the liberal American Constitution Society: ``The Senate 
should confirm him because there is no principled reason to vote no'' 
on Judge Gorsuch. That was David Frederick, a self-proclaimed ``long-
time supporter of Democratic candidates and progressive causes'' in a 
recent Washington Post op-ed. This prominent Democrat said he supports 
Judge Gorsuch because he ``embodies a reverence for our country's 
values and legal system. . . . We should applaud such independence of 
mind and spirit in Supreme Court nominees.''
  Unfortunately, instead of coming together behind this nominee, some 
of our colleagues continue to press forward with convoluted excuses as 
to why they won't support him.
  Just yesterday, my friend the Democratic leader came to the floor to 
share his reasoning. He talked about the need for the nominee to be 
independent and impartial. Well, Judge Gorsuch passes that test, and 
the American Bar Association, the organization revered as the ``gold 
standard'' for evaluating judges by the Democratic leader himself and 
the former Judiciary chairman, certainly agrees. It said: ``Based on 
the writings, interviews, and analyses we scrutinized to reach our 
rating, we discerned that Judge Gorsuch believes strongly in the 
independence of the judicial branch of government, and we predict that 
he will be a strong and respectful voice in protecting it.''
  In addition to independence, the Democratic leader talked about his 
concern that Judge Gorsuch has earned the support of conservatives. 
Well, that is true. Judge Gorsuch has earned the support of 
Republicans, just as he has received praise from many on the left as 
well, like President Obama's former Solicitor General, Neal Katyal; 
President Obama's legal mentor, Professor Laurence Tribe; and left-
leaning law professor E. Donald Elliot, among so many others.
  The Democratic leader talked about the need for the nominee to offer 
assurances about how he would rule on a certain case and assurances 
that he would stand up for certain groups, but, as Judge Gorsuch 
pointed out, nominees are, to quote Justice Ruth Bader Ginsburg, to 
offer ``no hints, no forecasts, no previews'' on how they would rule in 
certain cases. Similarly, judges are to decide cases based on the 
facts, not personal views or political preferences.
  Finally, the Democratic leader talked about the importance of a 
nominee's record. Well, I would like to take a moment to remind my 
colleagues of Judge Gorsuch's record. He said at his hearing:

       I have decided . . . over 2,700 cases, and my law clerks 
     tell me that 97 percent of them have been unanimous, 99 
     percent I've been in the majority. They tell me as well that, 
     according to the Congressional Research Service, my opinions 
     have attracted the fewest number of dissents from my 
     colleagues of anyone I've served with that they studied over 
     the last 10 years.

  To sum it up, more than 2,700 cases, in the majority on 99 percent of 
them, and part of a unanimous ruling on 97 percent of them--it simply 
doesn't get much better than that. No wonder the ABA gave him its 
highest rating: unanimously ``well qualified.''
  So when we hear our Democratic colleagues talking about breaking 
longstanding precedent to oppose this noncontroversial, outstanding 
judge by mounting the first-ever purely partisan filibuster to try to 
defeat his nomination, we can only assume one thing: This isn't about 
the nominee at all; it is about a few on the left whose priority is to 
obstruct this Senate and this President whenever and wherever they can. 
Months after the election, they are still in campaign mode, calling for 
Senate Democrats to obstruct and to resist.
  Let's be clear. These leftwing groups aren't concerned by the 
qualifications of this judge. They aren't looking out for what is best 
for the Court, for the Senate, or for the country. They simply refuse 
to accept the outcome of last year's election.
  We realize the enormous pressure our Democratic colleagues are under. 
It is why we are hearing talks of some mythical 60-vote standard that 
doesn't exist. Just ask fact-checkers who have repeatedly debunked that 
idea. A 60-vote threshold has never been the standard for a Supreme 
Court confirmation--not for President Clinton's Supreme Court nominees 
in his first term and not for the Supreme Court nominees of a newly 
elected President Obama, either.
  As the Washington Post Fact Checker reminded us again just this very 
morning, ``Once again: There is no `traditional' 60-vote `standard' or 
`rule' for Supreme Court nominations, no matter how much or how often 
Democrats claim otherwise.''
  So I would ask our Democratic friends, do they really want to launch 
the first wholly partisan filibuster of a Supreme Court nominee in 
American history? Do they really think history books or the American 
people will look kindly on them for filibustering this amazingly well-
qualified and widely respected nominee?
  Judge Gorsuch has earned an enormous amount of praise from across the 
political spectrum and from a wide array of publications all across our 
country, like The Chicago Tribune, which recently called for his 
confirmation, saying that Judge Gorsuch ``has shown himself to be 
committed to the principle that judges should rule on the law as 
written, and apply it equally to all.''
  The newspaper The Detroit News said Judge Gorsuch ``is proving 
himself an even-tempered, deeply knowledgeable nominee who should be 
confirmed by the Senate. The hearings confirm,'' it said, ``that 
Gorsuch is [eminently] qualified, and there is nothing radical in his 
judicial history.''
  In the Denver Post: ``As we've noted several times in the run-up to 
Gorsuch's confirmation hearings, the 10th Circuit judge possesses the 
fairness, independence and open-mindedness necessary to make him a 
marvelous addition to the Supreme Court.''
  The Post went on to say that Senators should not ``[miss] the chance 
to rally behind Gorsuch--who has been roundly praised here by Democrats 
and Republicans alike.'' In other words, Judge Neil Gorsuch should be 
treated fairly, receive an up-or-down vote, and be confirmed to the 
Supreme Court, just like all four first-time Supreme Court nominees of 
Presidents Clinton and Obama.
  Again, as even those on the left can't help but admit, ``there is no 
principled reason to vote no'' on Judge Gorsuch. It is a sentiment we 
have heard from many of our colleagues here on the floor as we have 
been debating Judge Gorsuch's nomination over the past few weeks.
  As we wait for the Judiciary Committee to report out his nomination, 
I would encourage Members of both sides to continue to take advantage 
of available floor time to discuss this important issue. I would also 
remind Senators that we will have all of next week--all of next week--
to continue debating Judge Gorsuch's nomination

[[Page S2057]]

as well. I look forward to hearing from our colleagues as we work to 
advance this extremely well-qualified nominee.

                   Recognition of the Minority Leader

  The PRESIDING OFFICER. The Democratic leader is recognized.


  Mr. SCHUMER. Mr. President, I rise this morning on a few topics, but 
I first want to mention that last night many of us spent some time at 
the White House where we were regaled by the wonderful Marine and Army 
chorus, where there was talk about renewing a spirit of bipartisanship 
in Washington.
  I am all for it. Of course, we Democrats hope that the President and 
Republicans in Congress will sit down with us in a true spirit of 
bipartisanship because so far in this Congress--the Republicans in this 
Congress so far--the Republican idea of bipartisanship has meant to 
both the President and the Republicans in Congress: We come up with our 
plan, and you Democrats should support it. That is not bipartisanship.
  The Republican leader, the House Speaker, have come up with issue 
after issue, including a Supreme Court nominee, with no Democratic 
consultation, and then said: The only way you can achieve 
bipartisanship is just to vote with us.
  You can't improve the healthcare system with only Republican votes on 
reconciliation, without consulting any Democrats, without a single 
sentence of Democratic input, and call that an attempt at 
  You can't do an infrastructure package of tax credits and no real 
spending, and then ask for bipartisan support. And you certainly can't 
out-source your entire selection of Supreme Court Justices to be 
handpicked by the hard-right, special interest-dominated Heritage 
Foundation and Federalist Society, and then ask for us to vote for that 
nominee as a show of bipartisan support.
  Bipartisanship means sitting down with the other side, getting our 
ideas, and hashing out a compromise. It does not mean proposing your 
policy--particularly when these policies and nominees are so far to the 
right--and then making an exhortation for bipartisanship and bemoaning 
the absence of it when Democrats don't go along with your way. I truly 
hope that the President and Republicans want to renew a spirit of 
bipartisanship, but it has to be real, it has to be meant, and their 
actions have to follow suit.

                       Nomination of Neil Gorsuch

  Well, Mr. President, let's talk about the Supreme Court because that 
exemplifies exactly what I am talking about. Over the last several 
weeks, my Republican friends have tried to paint Judge Neil Gorsuch as 
the beau ideal of a neutral and impartial judge. They insist that Judge 
Gorsuch is a straight down-the-middle guy, someone who will call the 
balls and strikes. The majority leader likes to cite a letter of a 
friend of the judge who says ``there is no principled reason'' to 
oppose his nomination. Of course, there are several principled reasons 
to object to Judge Gorsuch. Today I would like to focus on one in 
particular: Judge Gorsuch's long career ties to conservative interests 
and conservative ideological groups.
  The idea that Judge Gorsuch would simply be a neutral, mainstream 
Justice is belied by his career, his judicial record, and, perhaps most 
of all, the manner by which he was selected to serve on the Supreme 
Court. He was culled from a list handpicked by the Federalist Society 
and the Heritage Foundation, conservative organizations that have spent 
the last few decades simply trying to shift the balance of the courts 
way to the right. Most of my colleagues on the other side know how far 
to the right the Heritage Foundation is, and they often grumble at how 
they are pulling the party too far over, but Judge Gorsuch was 
handpicked by that group, along with the Federalist Society.
  Instead of consulting the Senate, President Trump outsourced his 
Supreme Court pick to the Federalist Society and the Heritage 
Foundation long before an election even took place. The Constitution 
does not say the President shall appoint the Supreme Court Justices 
with the advice and consent of rightwing special interest groups. It 
says he should appoint them with the advice and consent of the Senate. 
President Trump didn't consult the Senate; he never even considered it. 
He just consulted this list.

  Surely my dear friend from Utah, Senator Hatch, must remember when 
President Clinton consulted him about his Supreme Court picks. Senator 
Hatch told the President not to select Bruce Babbitt and offered 
instead the names of Ginsburg and Breyer. President Clinton listened to 
Senator Hatch and nominated them instead. Surely my good friend from 
Utah also remembers when he suggested to President Obama that Merrick 
Garland be nominated to the Supreme Court, calling him a fine man. 
President Obama listened and made him his pick.
  President Trump is different from all of the past Presidents in so 
many ways, so many of them unfortunate, and here is one: Even before 
being elected to office, President Trump swore off the entire process 
and outsourced the advice and consent process to a list selected by two 
ultraconservative organizations.
  Take the Heritage Foundation, for example. Are they down the middle? 
Are they unbiased? Well, let's listen to some of the things they 
believe in, which are way different from most Americans. It is a group 
that believes ``freedom'' means businesses have the right to 
discriminate against LGBT people. This is a group that believes 
``limited government'' means eliminating resources for the Violence 
Against Women Act. This is a group that believes a strong national 
defense means discriminatory Executive orders that bar immigrants and 
refugees from Muslim-majority countries. This is a group that holds 
extreme-right positions, a group that is far, far out of the American 
mainstream--and is even out of the Republican mainstream so many 
times--and they have handpicked Neil Gorsuch to have a seat on the 
highest Court in the land.
  Does anyone think the Heritage Foundation or the Federalist Society 
would put on their list a judicial moderate who would only call balls 
and strikes? Does anyone think there would be all this outside, dark, 
undisclosed money being spent to support Judge Gorsuch's nomination if 
he were just someone who called balls and strikes? No. There is a 
reason all of this dark money is being spent to support him. There is a 
reason the Federalist Society and the Heritage Foundation liked Judge 
Gorsuch enough to put him on the President's short list. There is a 
reason the President pledged to select only from this list. He wanted 
to curry favor with skeptical hard-right, special interest-dominated 
conservatives during his campaign. So the idea that Judge Gorsuch would 
simply be some neutral Justice does not hold water.
  When Republicans say that if Democrats will not support Judge 
Gorsuch, we will not support any Republican-nominated judge, that is 
simply not true. We have several reasons to be concerned with Judge 
Gorsuch specifically, and specifically one of those things we are 
concerned about is that he was pushed forward from the Heritage 
Foundation and Federalist Society, groomed by billionaire conservatives 
like Mr. Anschutz, another hard-right, special interest person.
  Judge Gorsuch had a chance. Most of us waited till after the hearings 
because at the hearings he had a chance to distance himself from these 
views, but he refused to substantively answer question after question.
  So if Judge Neil Gorsuch fails to reach 60 votes, which, by the way, 
the American people believe is the appropriate standard for a Supreme 
Court nominee, it is not because Democrats are being obstructionists; 
it is because he failed to convince 60 Senators that he belongs on the 
Supreme Court. In that event, the answer is not to permanently change 
the rules and traditions of the Senate; the answer is to change the 
nominee and do what President Clinton and President Obama did before 
they nominated people: Consult the other party for some semblance of 
  The majority is trying to make this a binary choice: Confirm Gorsuch 
or change the rules. It is not so; it is just not so. The idea that if 
Judge Gorsuch can't get 60, we must immediately move to change the 
rules is a false narrative. If the majority chooses to go that route, 
they do so at their own volition. No one is forcing them to do so,

[[Page S2058]]

except maybe the Heritage Foundation and groups like the Federalist 

                              Border Wall

  Mr. President, there is one thing I want to say about the wall. I 
talked about the wall yesterday, and I am not going to elaborate, but I 
would like to add to the Record a quote about the wall from none other 
than the Secretary of Interior, former Republican Congressman, Mr. 
Zinke, from Montana. Here is what he said. This is his quote about the 
wall, and I hope my colleagues will listen:

       The border is complicated, as far as building a physical 
     wall. . . . The Rio Grande, what side of the river are you 
     going to put the wall? We're not going to put it on our side 
     and cede the river to Mexico. And we're probably not going to 
     put it in the middle of the river.

                          Affordable Care Act

  Mr. President, finally, on the Affordable Care Act, today, 44 Senate 
Democrats are sending a letter to the President who puts onto paper our 
official offer to work with him to improve the existing law.
  Last Friday, in the wake of TrumpCare's defeat in the House, I was 
deeply concerned to hear the President say that he wants the Affordable 
Care Act to ``explode.'' The President and his HHS Secretary, Tom 
Price, have significant latitude to either improve the law or undermine 
it. So far, the President has undermined the law. These were all before 
the vote: He discontinued the advertising campaigns to get people to 
sign up for coverage and worked behind the scenes to give insurers 
flexibility to offer less generous care, and, still, the President's 
Executive order directing agencies to help him repeal and replace the 
ACA is hanging out there after the defeat or lack of a vote in the 
House, causing instability in the market and giving Federal agencies 
permission to undermine the law. That should be rescinded.
  What our letter says today is simple: If the President drops these 
efforts to undermine the law, we Democrats stand ready to sit down with 
him and with our Republican friends across the aisle in good faith to 
discuss a bipartisan approach to improving our healthcare system.
  It is time to work together to make healthcare even more affordable 
but not to encourage or root for the failure of the law that would have 
devastating consequences for millions of Americans.
  Mr. President, I yield the floor.

                       Reservation of Leader Time

  The PRESIDING OFFICER. Under the previous order, the leadership time 
is reserved.
  The Senator from Utah.

                       Nomination of Neil Gorsuch

  Mr. HATCH. Mr. President, I have been very interested in the minority 
leader's comments here this morning. I have high regard for him. We 
have worked together on a wide variety of issues, but I have to say 
that he is leading a party right now that is doing completely the 
opposite of what Democrats have done in the past when Republicans have 
had the Presidency and have had the privilege of appointing people to 
the Court. Frankly, it has become kind of a war that we really don't 
need and something that literally, I think, is demeaning to the Senate 
and to this country.
  I venture to say that it would be very difficult for anybody to find 
a better nominee for the Supreme Court than Neil Gorsuch. I can't say 
that the Heritage Foundation was the one that carried the weight with 
regard to the choice of Neil Gorsuch. Now, the Federalist Society did 
weigh in rather heavily, and there were around 21 absolutely top judges 
and lawyers who were on that list. I venture to say that anybody would 
have a very difficult time finding anything to criticize about that 
list other than on a partisan basis. Unfortunately for the Democrats, 
they lost the election.
  Now keep in mind, all the current majority leader was saying was that 
we just weren't going to go with a Supreme Court Justice during an 
intensely hard-fought Presidential election year. In this century, that 
has been the rule.

  The majority leader, Senator McConnell, knew that it was very likely, 
in the eyes of almost every pollster, that Hillary Clinton would win, 
and although he and I believed that nominee was a good, reasonable, 
moderate Democrat, we were quite sure that if Hillary got elected, she 
would not pick him. We were even working on trying to find a way so 
that she would have to pick him rather than pick another totally 
leftwing person for the Court.
  Unfortunately for the Democrats, Donald Trump proved to be a 
formidable candidate for President and won the election and, 
interestingly enough, as is his right as President, nominated Neil 
Gorsuch for the U.S. Supreme Court.
  Whether you are a Democrat or a Republican, I would venture to say 
that it would be very difficult to find any candidate for the Supreme 
Court in this century who is any better than Neil Gorsuch. Gorsuch is 
going to apply the law as written, not as he conjures up his ideas of 
what it should be. He is not going to do that. He is going to apply the 
law as written. He did that as a circuit court of appeals judge on the 
Tenth Circuit, my circuit. You would be hard-pressed to find a better 
qualified person. In fact, I do not think you could find a better 
qualified person for the Supreme Court than Neil Gorsuch.
  So what is all the whining about? They lost the election. They knew 
that this was going to be a big deal if they won and that the 
Republicans would pretty well have to go along with whomever they 
chose, but President Trump won the election, and he has a right to pick 
who should go on the Supreme Court. In this case, I think he picked the 
most qualified person in the country for the Court. Yes, he is 
conservative. Yes, he came up the hard way. Yes, he is not likely to be 
a liberal on the Court, but I would have to say that anybody this 
President would choose would not likely be a liberal on the Court. In 
this case, the President chose one of the leading people in this 
country, one of the greatest lawyers in this country, one of the finest 
judges in this country, who has a record of working with Democrats on 
the bench, to become his choice for the U.S. Supreme Court.
  I know what is wrong with the Democrats on this. They lost, and it is 
a hard thing for them, and I do not blame them. It is a hard thing 
because they were so sure they would control this nominee to the 
Supreme Court and probably two to five more had Hillary Clinton been 
elected for two terms. But that is not the way the American people 
chose to vote.
  I commend the American people for realizing that these things are 
very important. I have to say, in that last election, probably the 
single most important issue that drove it toward Donald Trump was, who 
is going to pick the Justices to the U.S. Supreme Court?
  Republicans know and President Trump knows that he is not going to be 
able to put ideologues on the Court, and Neil Gorsuch is anything but 
an ideologue. He is as fine a judge as we have in this country, albeit 
conservative in nature. He has as fine an academic background as 
anybody on the Court--ever. On top of all of that, he is a terrific 
human being, a good husband, father, and a terrific judge on the Tenth 
Circuit Court of Appeals.
  To be honest with you, I thought it was really nice to have somebody 
picked from the West who might bring a western perspective of freedom 
into the judicial system, and I have no doubt that Neil Gorsuch will do 
that. To make this a big political issue, it seems to me, is beyond the 
pale, and it does bother me a great deal.
  On another matter, Mr. President, by any measure, our efforts in this 
Congress to repeal harmful regulations through the Congressional Review 
Act have been historic. Prior to this year, only one CRA resolution--
Congressional Review Act resolution--had ever been passed by Congress 
and signed by the President. We are an overregulated country like never 
before. This year, we have already successfully rolled back 11 
regulations that were proposed and finalized under the previous 
administration. That is truly remarkable. I think our success in this 
endeavor can be attributed to a few factors.
  First, in its last year, the Obama administration was particularly 
aggressive in its regulatory efforts. A number of regulations were 
finalized after the election, right up until the day President Trump 
was inaugurated. In fact, the regulation at issue today was finalized 
on January 19, the day before the inauguration. In other words, the 
Obama administration left Congress

[[Page S2059]]

and the new administration with a target-rich environment for CRA 
resolutions. There is no doubt what they were doing: They were 
scrambling to get as many changes as they could instead of allowing the 
new administration to take over.
  Another important factor has been the realization by the American 
people that our economy--our workers, our businesses--is grossly 
overregulated. The regulatory state extracts hundreds of billions of 
dollars from our economy, much of it needlessly so. These CRA 
resolutions are part of a much broader effort to undo some of that 
  Today I am pleased to be able to express my support for H.J. Res. 67, 
which will likely be the 12th CRA resolution we will pass this year. 
This resolution, once passed and signed, will roll back a last-second 
Department of Labor regulation that eliminated longstanding Federal 
protections for the retirement savings of private sector workers.
  Specifically, the regulation builds off of a prior regulation that 
gave States a ``safe harbor'' from the protections workers have under 
ERISA if the government mandates that employers who do not offer 
retirement plans either set one up or join the government plan. These 
government-run plans do not have to be portable, nor do they have to 
permit workers to withdraw their savings at any time.
  The resolution we are debating now would roll back the regulation 
that provided this authority to municipalities, such as New York City. 
Hopefully, sometime soon, the Senate will also debate and pass the CRA 
resolution relating to the original regulation, the one that focused on 
States, like California and Illinois.
  Combined, these regulations encourage State and municipal governments 
to impose conflicting and burdensome mandates on private sector 
businesses and to bar private workers' access to their retirement 
accounts, and they would let States invest private workers' retirement 
assets, ignoring provisions in Federal pension law that require prudent 
pension investment practices and that ban kickbacks and self-dealing. 
Think about that.
  To be blunt, places like New York City should not just get a pass on 
investing potentially billions of dollars in private worker retirement 
assets without regard to Federal rules that require prudent investment 
practices--rules designed to protect the retirement nest eggs of hard-
working Americans.
  Now, do not get me wrong--I am all for increasing coverage for 
employees in workplace retirement programs. In fact, it is something I 
have been working on for some time with my colleagues on both sides of 
the aisle.
  Last Congress, the Senate Finance Committee, which I chair, 
unanimously approved the Retirement Enhancement and Savings Act of 
2016, which is a bipartisan bill that will increase voluntary 
retirement savings. It includes a number of provisions from a bill I 
introduced a few years before that, one that received high marks from 
analysts and stakeholders in the retirement-security community. My bill 
and others like it provide workable, voluntary solutions to give more 
workers access to retirement plans. This approach is far better than 
the one taken by the Obama administration and former Labor Secretary 
Tom Perez, which would purposefully take us down the path toward 
government-mandated and government-run retirement plans.
  The retirement savings system that has been in place for decades now 
is one of the clearest examples we have to demonstrate the superiority 
of the free market over government mandates. Private retirement savings 
vehicles, including 401(k)s and individual retirement accounts, which 
have been encouraged but not mandated by Federal tax laws, have 
produced nearly $14 trillion--that is trillion dollars--in wealth and 
savings for the middle class.
  I know some have concerns about the federalism implications in 
rolling back these Department of Labor regulations. However, let's be 
clear: Prior to the implementation of these regulations, States were 
free to pass laws to encourage retirement savings opportunities for 
private sector workers, and they will be free to do so after this CRA 
resolution is signed by President Trump. They will simply have to 
observe the longstanding rules and protections that have been in place 
under Federal pension laws, including the ban on self-dealing and the 
duty to invest prudently, and they will not be able to offer plans on 
an uneven playing field that favors government retirement plans over 
those produced in a free, private sector market.
  Unfortunately, I have to wonder why States and municipalities want to 
do away with these protections in the first place. I also have to 
wonder why they think they will be able to produce better results than 
the private retirement savings system, which thus far has been an 
unqualified success, benefiting workers and employers alike. I also 
have to wonder how some of my colleagues who value consumer financial 
protection, as I do, would want to see the continuation of rules that 
erode protections for workers and future retirees.
  The first step in undoing these harmful regulations is with the 
passage of H.J. Res. 67. Toward that end, I urge all of my colleagues 
to vote in favor of this resolution.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. 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. CORNYN. Mr. President, let me just say while the Senator is on 
the floor that I express my admiration once again for the distinguished 
Senator from Utah, who is my good friend and in many ways is a mentor 
as the chairman of the Senate Finance Committee. I am privileged to be 
a member of that committee and to work with him and, of course, on the 
Judiciary Committee as well. I thank the Senator in particular for his 
leadership on this resolution of disapproval, and I support his 
position 100 percent.

                       Nomination of Neil Gorsuch

  As we all know now, Mr. President, this Chamber will consider the 
nomination of Neil Gorsuch to serve as the next Justice on the U.S. 
Supreme Court.
  Yesterday I spoke a little bit about his qualifications, his 
background, and his temperament. During the 20 hours of hearings we 
held before the Judiciary Committee, I think people saw the real Neil 
Gorsuch--somebody who, again, by virtue of his qualifications, his 
education, his training, and his experience is supremely qualified to 
serve on the Supreme Court. He did pass every single test with flying 
colors, even as my colleagues and some activist groups have done their 
best to find ways to object to what may be one of the most qualified 
candidates for the Court in our Nation's history.
  One argument we have heard from the opponents of the nominee in 3 
days of grueling hearings was that he failed to convey his approach to 
judging--how he would approach the job. I would like to point out that 
that is simply not the case. Judge Gorsuch made clear that the text of 
the statute, the text of the Constitution, and the text of a precedent 
would guide his judging and would be the place where he starts in 
deciding any case. As he has repeatedly written and stated publicly, 
the job of a good judge is to understand what the law means and to 
interpret what lawmakers have done.
  I know some of our colleagues and some of the activist groups who are 
critical of Judge Gorsuch are upset that he doesn't believe in a living 
Constitution--in other words, that the Constitution, as written and 
ratified by the States, does not mean what it says, and that judges 
have a license to interpret the words in a way to pursue some other 
purpose, some other agenda, political or personal or the like.
  Judge Gorsuch rejects that approach, and rightly so. Indeed, how can 
a judge claim to bear allegiance to the Constitution if he doesn't 
actually start in interpreting the Constitution by reading the text of 
the words? What would a judge decide on if not the text and the 
original meaning?
  To that effect, I received a letter from a friend of mine and an 
expert in this area, Bryan Garner, last week. Bryan is a well-known 
lawyer and writer and, among many impressive accomplishments, he is a 
distinguished research professor of law at Southern

[[Page S2060]]

Methodist University in Dallas, TX. Bryan has written extensively on 
judging, appellate advocacy, and the law generally. He was in 
attendance at the hearings last week. As I said, he has written a 
number of books, including with Judge Gorsuch, on judicial precedent, 
and with Justice Scalia, on reading laws.
  In a recent letter, Bryan echoed the same point made by both of these 
men at different times--that adherence to the text is essential to our 
system of government. He said: ``The very fact of having a written 
constitution meant that we had fixed its meaning in permanent form.''
  Now, that seems so obvious, but, apparently, it is not obvious to 
some of the critics. He said: ``The very fact of having a written 
constitution meant that we had fixed its meaning in permanent form.'' 
In other words, our Constitution is not meant to float on the whims of 
judges over time, bound only by precedent. It is actually written down, 
so that even judges have to start with the very text.
  If we think about it, there is the independence that we have given to 
the judiciary--lifetime tenure. They don't have to stand for election, 
and they are not accountable to the voters or the people. The reason 
why the Founders created such an important role for the judiciary is 
because they believed there ought to be an umpire who calls balls and 
strikes when Congress passes laws or when lawsuits are filed and who 
could determine the fidelity of those laws to the text of the 
Constitution, which had a fixed meaning.
  Well, sometimes this is called originalism, but it is not a political 
doctrine or an excuse to get certain outcomes. Mr. Garner makes the 
point that although his personal politics are different, dramatically, 
from those of Justice Scalia, those personal politics are irrelevant 
because the job of a judge is to apply a fair reading of the law. If 
you can't do that, then, maybe you ought to run for the Senate or 
Congress and get involved in politics rather than judging, because a 
failure to apply the law as fairly read is essential in any good judge.
  Judges aren't given lifetime tenure--the sort of independence that 
nobody else in our government is given--just to enact their own visions 
of policy. Judge Gorsuch confirmed time and again that he will not do 
that--that he will only interpret the law as he has throughout his 
career as an independent judge, with faithfulness and fidelity to the 
text and the original understanding of the Constitution.
  The letter I have been quoting in part is here in my hand, and I ask 
unanimous consent that it be printed in the Record following my 
  Now, I know there are some on the other side of the aisle who have 
indicated that adherence to originalism is a liability or who claim 
that it is somehow a radical doctrine out of the mainstream, but that 
is just a scare tactic. It is completely wrong. Let me remind my 
colleagues that during her confirmation hearings, now-Justice Elena 
Kagan told the same committee that ``we are all Originalists''--hardly 
a radical position, if Justice Kagan and Judge Gorsuch agree with 
originalism. It is certainly not a methodology of interpreting law that 
should stir any concern.
  Yesterday, some of our Democratic colleagues continued to reinforce 
my view that they don't really have any legitimate objection and reason 
to filibuster Judge Neil Gorsuch. This is about Judge Gorsuch. This is 
not about President Trump. This is not about Merrick Garland. This is 
not about anything else.
  We will have a chance to vote on the nomination of Judge Neil Gorsuch 
for the U.S Supreme Court. That is the question that will be presented 
to the Senate for an up-or-down vote. Any fairminded person would have 
to conclude that he is an independent legal mind and that he will not 
legislate from the bench. He has the intelligence, experience, and 
character to be a good judge, as he has been for 10 years on the Tenth 
Circuit Court of Appeals out of Denver. He has an unflinching 
commitment to upholding a faithful interpretation of the Constitution 
and our laws. I look forward to confirming him next week.

  The question for our Democratic friends is whether they are going to 
launch the very first partisan filibuster of a Supreme Court nominee in 
the history of the United States. It really is unprecedented, what the 
Democratic leader, Senator Schumer, has suggested--that for the first 
time in the history of the Senate, a partisan filibuster will be used 
to attempt to defeat the nomination of a Supreme Court Justice and to 
deny the Senate the opportunity to have an up-or-down vote.
  Now, just to be clear, there are two votes we are talking about. One 
is the so-called cloture vote, where we close off debate. That takes 60 
votes. Then, once that passes, it is clearly a majority vote, and 51 
votes will carry the day.
  But the Democratic leader has suggested that he would deny the Senate 
the opportunity to get to that second up-or-down vote, and that is 
simply unprecedented. It is unprecedented for a very good reason. To 
believe that 60 votes would be required to confirm a nominee to the 
U.S. Supreme Court would be to suggest that the Founding Fathers, when 
the Constitution was written and when it was ratified, somehow believed 
that the Senate rules were incorporated in the Constitution, when that 
is clearly not the case--clearly not the case. The Constitution is a 
separate document. The Senate rules are a different thing. But, again, 
never have they been conflated to suggest that somehow, in order to 
confirm a nominee to the Supreme Court, we need 60 votes.
  I understand the pressure that our friend the Democratic leader is 
under, because after this last election, he has now had to straddle two 
competing camps within the Democratic Party--traditional Democrats 
versus the Democrats lead by the wing of Bernie Sanders and Elizabeth 
Warren. I understand the pressures that he must feel and the reason why 
he would do something that is unprecedented and suggest that we 
filibuster this nomination.
  We already know that some Members of his conference have said they 
will agree to an up-or-down vote. Our friend from West Virginia, 
Senator Manchin, has said he opposes the filibuster. Senator Leahy, the 
former chairman of the Senate Judiciary Committee, has said he is not 
inclined to go along with it, either. Senator Cardin, our colleague and 
friend from Maryland, has stopped short of agreeing with the minority 
leader's strategy. Senator Heitkamp from North Dakota has said that she 
believes the nominee deserves an up-or-down vote.
  If the Democratic leader follows through, as I said, it would be 
unprecedented. Never before has there been a successful partisan 
filibuster of a Supreme Court nominee. I would just say to our friends 
across the aisle that time and again Democrats have accelerated the 
arms race on judges, and every single time, it has come back to bite 
  We remember in 2013, when Senator Harry Reid, then the majority 
leader, broke the Senate rules in order to change the rules, in order 
to lower the threshold for circuit court and district court 
nominations. He did that because of the desire to pack the District of 
Columbia Court of Appeals, because that was the court that had primary 
jurisdiction over cases coming out of the Obama White House--its 
regulations and the like. In order to get a court that would be more 
likely to rubberstamp and approve of Obama policies, Senator Reid felt 
it was imperative to pack the DC Circuit Court of Appeals. 
Unfortunately, he was able to do so with the votes of the Democrats 
across the aisle--to break the Senate rules to change the rules for the 
sole purpose of rubberstamping Obama administration policies.
  The question before the Senate this time is very different. Those who 
would break precedent are those who would filibuster a Supreme Court 
nominee like Judge Gorsuch because it has never been done before. But I 
would ask our Democratic colleagues this: If Judge Gorsuch is not 
acceptable to them, is there ever going to be a nominee from a Trump 
administration whom they would find acceptable?
  They have tried to find fault with Judge Gorsuch, and they have 
simply been unable to do so. So they keep moving the goalpost and 
raising different issues because they, frankly, are desperate to find 
some reason to justify this unprecedented filibuster.
  But if they do--if Democrats block Judge Gorsuch from receiving an 

[[Page S2061]]

down vote--then, there is simply no Republican nominee to the U.S. 
Supreme Court they won't filibuster. If Judge Gorsuch isn't good 
enough, I dare say there will never be another nominee who is good 
enough to allow an up-or-down vote if this unprecedented filibuster is 
allowed to stand.
  So I hope our colleagues will reconsider, and that, on cooler 
reflection, the will not be driven by the radical elements in their own 
party but rather by their good judgment and their sense of 
responsibility to not only their constituents but to the Constitution 
itself and to the important role that the Senate plays in the advice 
and consent function to the nominee of the U.S. Supreme Court. I hope 
they reconsider, and I hope that when the rollcall vote is held, our 
colleagues will provide the 60 votes we need to get cloture, so we can 
have that up-or-down vote on Judge Gorsuch's nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    Law Prose,

                                       Dallas, TX, March 25, 2017.
     Senator John Cornyn,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Cornyn: It was an eerie feeling for me this 
     week, sitting behind my friend and coauthor Judge Neil M. 
     Gorsuch as he was being vetted to replace my late friend and 
     coauthor, Justice Antonin Scalia. As you know, I've written 
     lengthy books with both men, and I know their legal 
     philosophies pretty darned well.
       One aspect of their approach to judging--``originalism,'' 
     as it's called--has attracted polemicists to use the label as 
     a scare tactic. So much demagoguery surrounds the word that 
     some clarification is in order.
       People might wonder why Justice Scalia would write a 
     prescriptive book on judging (Reading Law) with someone who 
     had declared himself to favor same-sex marriage, to be 
     ardently pro-choice, to disfavor prayer in public schools, 
     and to be hostile to the Second Amendment--so hostile, in 
     fact, that he would like to see it repealed altogether. Yes, 
     I'd favor serious gun-control measures in this country.
       My private beliefs on these points, however, would be 
     irrelevant if I were up for a judgeship because 
     methodologically I'm an originalist: I wouldn't be enacting 
     my own visions of wise policy--that's not what a good judge 
     does--but instead I'd be applying a ``fair reading'' to the 
     the statutory or constitutional words before me. Although I 
     deplore the Second Amendment's right to bear arms, I think 
     the Supreme Court's Heller decision was correct: the 
     constitutional Framers meant there to be a personal (though 
     not unlimited) right to own guns. I wish it weren't so.
       Only if I were a ``pragmatist'' judge or a ``changing 
     constitutionalist'' would these private views become 
     important. Then I wouldn't be ``interpreting'' a document. 
     Instead, I'd be declaring new policies that have no 
     discernible foundation in the Constitution itself. I'd be 
     looking within my heart and soul to consider what I believed 
     to be fundamentally important. There I might discover new 
     rights that people hadn't seen before. I might take on the 
     mantle of philosopher-king: whenever reformers couldn't get a 
     constitutional amendment through, they could come to my 
     court. Perhaps four of my colleagues and I could amend the 
     Constitution for them: we'd declare a new meaning and find a 
     new fight as part of our never-ending Constitutional 
       That's what would happen if I were a ``pragmatist'' (it's a 
     euphemism) or a ``changing constitutionalist'' (the euphemism 
     is ``living constitutionalist'').
       So you can see why methods of judging have caused the 
     confirmation process to become so heavily politicized. In 
     Reading Law, Justice Scalia and I remarked: ``The descent 
     into social rancor over judicial decisions is largely 
     traceable to nontextual means of interpretation, which erode 
     society's confidence in a rule of law that evidently has no 
     agreed-on meaning. Nontextual interpretation, which makes 
     `statesmen' of judges, promotes the shifting of political 
     blame from political organs of government (the executive and 
     the legislature) to the judiciary.''
       We went on to observe that ``the consequence is the 
     politicizing of judges (and hence of the process of selecting 
     them) and a decline of faith in democratic institutions.''
       In a New York Times op-ed two days ago, a law professor 
     from Louisiana had the temerity to say that ``Justice Scalia 
     failed to realize that textualism is self-undermining.'' His 
     support for that slander? ``Nowhere does the Constitution 
     explicitly state that textualism, no less than originalism or 
     any other method, is the correct theory of constitutional 
       This is just silly. Nowhere in Shakespeare is it said that 
     future generations may well need a glossary to understand 
     some of the words--or that the best understanding of the 
     words will be their Elizabethan understanding. For example, 
     few people who read the word leasing in Shakespeare would 
     understand it, as his contemporaries did, to mean ``a lie or 
       Although there was no name for originalism in the 18th 
     century, the idea was well-enough understood. The political 
     philosopher Emmerich de Vattel--whose influence on Benjamin 
     Franklin, George Washington, and other Founders was well 
     known and ``timely,'' according to Franklin, since it reached 
     them about 1775--wrote in his Law of Nations: ``The 
     interpretation of every act, and of every treaty, ought . . . 
     to be made according to certain rules proper to determine the 
     sense of them, such as the parties concerned must naturally 
     have understood, when the act was prepared and accepted.''
       Vattel added: `When an ancient act is to be interpreted, we 
     should then know the common use of the terms, at the time 
     when it was written.''
       That was the settled view of written legal instruments, 
     whether statutes or written constitutions. In 1796, Justice 
     James Iredell of the Supreme Court wrote: `We are too apt, in 
     estimating a law passed at a remote period, to combine in our 
     consideration, all the subsequent events which have had an 
     influence upon it, instead of confining ourselves (which we 
     ought to do) to the existing circumstances at the time of its 
       Perhaps, you might think, all these statements relate only 
     to statutes and not to constitutions. Just seven years later, 
     in the seminal case of Marbury v. Madison, Chief Justice John 
     Marshall applied the same principle to the U.S. Constitution. 
     He emphasized the notion that the Constitution, aside from 
     what ought to be infrequent amendment, is fundamental and 
     unchanging: ``That the people have an original right to 
     establish, for their future government, such principles as, 
     in their opinion, shall most conduce to their own happiness, 
     is the basis, on which the whole American fabric has been 
     erected.'' It's an original right to fix the future 
     government. He added that this original right is ``a very 
     great exertion'' that should not ``be frequently repeated.'' 
     Then, in this closely reasoned passage, he says that ``the 
     principles . . . so established are deemed fundamental'' and 
     ``are designed to be permanent.''
       Permanent--not waxing and waning according to political 
     expediencies of the moment.
       That's the essence of originalism. Marshall and Iredell and 
     Vattel were hardly alone. Other writers of the period agreed. 
     In 1821, James Madison, one of the architects of the 
     Constitution and author of the Bill of Rights, correctly 
     stated the gist of originalism: ``Can it be of less 
     consequence that the meaning of a constitution should be 
     fixed and known, than that the meaning of a law should be so? 
     Can, indeed, a law be fixed in its meaning and operation, 
     unless the constitution be so?''
       Elsewhere, Madison wrote: ``What a metamorphosis would be 
     produced in the Code of the law if all its ancient 
     phraseology were to be taken in its modern sense.'' He 
     further insisted that if ``the sense in which the 
     Constitution was accepted and ratified by the nation . . . be 
     not the guide in expounding it, there can be no security for 
     a faithful exercise of its powers.''
       The very fact of having a written constitution meant that 
     we had fixed its meaning in permanent form. That wasn't just 
     the prevalent notion among the founders--it was the only 
     notion of which any contemporaneous or nearly contemporaneous 
     trace can be found.
       Some imprecise observers confuse the concept of originalism 
     with the word originalism--and so conclude that the concept, 
     like the word, was born ``in 1985 [when] Ronald Reagan's 
     attorney general at the time, Edwin Meese, elevated 
     originalism to a legal and political movement.'' It may well 
     be that the term originalism didn't come into common usage 
     until the 1980s, but that is simply because before then there 
     was no need for the term. Originalism is what philologists 
     call a ``retronym''--a term devised to describe what used to 
     be an entire genus but has since become merely one species of 
     the genus. For example, the term land line didn't exist in 
     the telecommunications field until wireless technology was 
     invented. Until then, all voice telecommunication was through 
     land lines, so the term was unnecessary.
       Likewise, giving text its original meaning was long the 
     standard legal practice. It wasn't until the 1960s that other 
     ``theories'' of interpretation came into common usage. Only 
     then did it become necessary to coin a word to denote the 
     traditional practice.
       Only by sheer, bald-faced casuistry can it be argued, as it 
     was earlier this week in the New York Times, that ``true 
     originalism--genuinely following the founders' intent--
     requires us moderns to interpret constitutional language in 
     light of our own, not their, moral and linguistic norms.'' 
     This assertion comes, of course, from the same writer who 
     asserts that ``Justice Scalia also failed to realize--or at 
     least admit--that textualism and originalism rarely determine 
     a unique outcome.''
       These calumnies don't square with the facts. In the preface 
     to Reading Law, Justice Scalia and I plainly wrote: 
     ``Textualism will not relieve judges of all doubts and 
     misgivings about their interpretations. Judging is inherently 
     difficult, and language notoriously slippery. But textualism 
     will provide greater certainty in the law, and hence greater 
     predictability and greater respect for the rule of law.''
       Judge Gorsuch said as much during his Judiciary Committee 
     hearings this week. He demonstrated an astonishing command of 
     the law, a erudition worn lightly, a calm but tenacious 
     dedication to the scruple of judicial ethics, a thoroughly 
     likable demeanor,

[[Page S2062]]

     and admirable endurance. I trust that all fair-minded 
     Senators will vote for him.
     Bryan A. Garner,
       Editor in Chief, Black's Law Dictionary; President of 
     LawProse Inc.; Distinguished Research Professor of Law, 
     Southern Methodist University.

  Mr. CORNYN. Mr. President, I see our friend from West Virginia and 
others here, so I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.

                             Opioid Crisis

  Mr. MANCHIN. Mr. President, we have come to a crisis in our country. 
My State of West Virginia has the highest drug overdose death rate in 
the Nation. West Virginia reported 818 overdose deaths last year--four 
times the number that occurred in 2001 and a nearly 13-percent increase 
over 2015. We lost more than 700 West Virginians who died from an 
opioid overdose last year. Some 42,000 people in West Virginia, 
including 4,000 youth, sought treatment for illegal drug use but failed 
to receive it because of a lack of treatment centers, which we have 
been trying to correct. In West Virginia, drug overdose deaths have 
soared by more than 700 percent since 1999.
  West Virginia had the highest rate of prescription drug overdose 
deaths of any State last year--31 per 100,000 people. In West Virginia, 
providers wrote 138 painkiller prescriptions for every 100 people. 
Think about this. Doctors are prescribing and manufacturers are 
producing. They have written 138 painkiller prescriptions for every 100 
people in my State--the highest rate in the country. I hope Arkansas is 
not facing the same dilemma we are.
  Every day in our country, 91 Americans die from an opioid overdose. 
Opioids now kill more people than car accidents. In 2015, the number of 
heroin deaths nationwide surpassed the number of deaths from gun 
homicides. Since 1999, we have lost almost 200,000 Americans to 
prescription drug opioid abuse.
  Mr. President, 2.1 million Americans abuse or are dependent on 
opioids. According to the CDC, three out of four new heroin users 
abused prescription opioids before moving to heroin. Heroin use has 
more than doubled among young adults ages 18 to 25 in the past decade. 
Forty-five percent of the people who used heroin were also addicted to 
prescription opioid painkillers. Between 2009 and 2013, only 22 percent 
of Americans suffering from opioid addiction participated in any form 
of addiction treatment.
  Misuse and abuse of opioids cost the country an estimated $78.5 
billion in 2013 in lost productivity, medical costs, and criminal 
justice costs.
  Every week, I come to the Senate floor to read letters from West 
Virginians and those struggling all throughout our country with opioid 
abuse. The reason I do this is because it is a silent killer. We don't 
talk about it. There is not one of us in the Senate, not one of us in 
Congress, not one of us in any gathering who doesn't know someone in 
our immediate family, extended family, or a close friend who hasn't 
been affected, but we would never talk about it because it was so 
embarrassing--how did it ever break down in our family, whether you had 
a model family or you thought you did. This is a killer. Whether 
Democrat or Republican, conservative or liberal, this is a killer. It 
has no discretion. It has no partisan base. It goes after one and the 
other. So this is what we are dealing with.
  The letters I read have a common theme: They all mention how hard it 
is to get themselves or loved ones into treatment. Sometimes it takes 
months, and sometimes it never happens. This problem stems from our 
lack of a system to help those who are looking for help. We need 
permanent funding to create and expand substance abuse treatment 
facilities to help people get clean and stay clean.
  I know the Presiding Officer has heard this before, but that is why I 
introduced the LifeBOAT Act. The LifeBOAT Act puts one penny per 
milligram of opiates--basically, one penny for every milligram of 
opiates produced in America, consumed in America--into a fund that pays 
for treatment centers. In the Presiding Officer's beautiful State of 
Alaska and my State of West Virginia, people need treatment. This is an 
illness. I used to look at it 20 years ago as basically a criminal act, 
and we put them in jail. Guess what. They came out of jail just as 
addicted as they went in. Nothing changed, so I am willing to change. I 
have always said that if you can't change your mind, you can't change 
anything. This is an illness that needs treatment, and we are 
responsible for that. This lifeboat would establish a steady, 
sustainable funding stream to provide and expand access to substance 
abuse treatment.
  Today I am going to read a letter from parents from West Virginia who 
lost their son to drug abuse. This is Renee and Criss's letter, which 
they want me to read. This fine-looking young man was a father, and 
this is such a tragic ending to this story.

       Dear Senator Manchin,
       I am writing to you in the hope of bringing to light the 
     devastating effects of heroin addiction, overdose death and 
     the difficulty in finding treatment for those afflicted with 
     the disease and their families.
       On November 12th, 2016, we lost our 23-year-old son, Nick, 
     who died from what we thought at the time was a heroin 
     overdose. When Nick's autopsy report came back, we discovered 
     that his body contained no trace of heroin in his system. He 
     had died from a fatal dose of straight fentanyl.
       Nick was a quiet, kind and inquisitive child. He learned to 
     speak and read at an early age and spent most of his time 
     absorbed in books and riding his bike and scooter. He also 
     loved playing in the woods and dreaming up adventures with 
     his sisters and neighborhood friends. He was a protective big 
     brother, and he had a natural way of connecting with kids who 
     were ``different'' and making them feel accepted.
       Nick was always tall for his age. He came into this world 
     on July 5th, 1993, weighing in at 10 pounds and topped off at 
     6'8". He loved sports and excelled in basketball and soccer. 
     He even met you when you were Governor Manchin, after his 
     basketball team traveled to Charleston, WV, to celebrate 
     their A State Basketball Tournament Championship in 2011.
       After high school he went on to play basketball for the 
     Glenville State College Pioneers. Nick wasn't able to keep 
     his grades up and had to drop out of Glenville after the 
     first semester of school. Shortly after that, he met a girl. 
     They instantly connected, and he soon became a father to her 
     daughter. After several years together, they had a son of 
     their own.
       After having difficulty holding down jobs and providing for 
     his family, Nick came to me in November of 2015 and told me 
     that he was addicted to opiate prescription drugs. We had 
     suspected drug use for quite some time but didn't realize the 
     extent of it. He said that he could no longer live the life 
     he was leading and needed help. Nick and his girlfriend had 
     started using opiate-based prescription drugs after she was 
     prescribed them for her recovery from the birth of her 
     daughter in 2013. At first, they would make trips to the 
     doctor or quick care with fake ailments in order to get their 
     prescriptions. If they couldn't get prescriptions, then they 
     bought from drug dealers. The pills were easy to get up until 
     the time he came to me for help.
       I told my husband about Nick's drug problem, and not 
     knowing what to do, we turned to the Internet as a source of 
     information. We found a lot of information and many treatment 
     centers across the country. I began calling a few of the ones 
     that looked reputable, but in each case, they required three 
     to five thousand dollars up front for a 28 to 30 day 
     treatment. The question now was: Were these treatment centers 
     as good as they appeared to be on their websites or were they 
     simply out to make a profit and marketing their centers to 
     bring in more patients?
       While we researched and tried to make a decision, Nick, not 
     wanting to be away from his family, went through detox at 
     home and had convinced him and us that he could do this on 
     his own. Nick made it through his first round of self-detox 
     but started using again for a short while at the end of 
     January. We confronted him, and he immediately started his 
     second round of self-detox. He again swore that he could do 
     this himself and was finished with the life he was leading. 
     We were still trying to figure out what to do with him and 
     what would happen to his family while he was gone. We didn't 
     know that his girlfriend was also using and detoxing along 
     with Nick.
       After speaking to several people at a local treatment 
     center and trying to arrange for him to be admitted, we were 
     told that they wouldn't take him because [of] our insurance. 
     My next course of action was to call local counseling centers 
     that offered addiction counseling, hoping that they would be 
     able to offer advice. Each one I called politely told me that 
     they couldn't help.
       Nick's addiction, and our focus on him, was taking away 
     from our being able to celebrate and focus on our other 
     children, Nick's two sisters. We decided to put Nick on the 
     backburner while we prepared for our daughter's graduation 
     party and the school events that preceded it, thinking that a 
     few weeks wouldn't hurt. Were we ever wrong!

  It is a sad scenario when a family has to hope that their child gets 

[[Page S2063]]

and gets a conviction record so they can go to a drug court to get 
treatment, that that is the only help they have.

       One of our daughters had learned that Nick could get 
     treatment if we pressed charges against him for theft. He 
     would be charged, then court-ordered to be sent to an 
     addiction treatment center. She felt that this was the best 
     course of action to get Nick the help he needed, but Criss 
     and I were hesitant because of the negative impact a felony 
     charge would have on Nick's life if the charges weren't 
     expunged after completing his treatment.

  Which is our what we call fresh start or last-chance bill, which the 
Presiding Officer has been so graciously looking at and hopefully will 
be a part of this. It is a shame they fall into this.

       Our decision to not go this route caused even more anger.

  Since they knew that, hindsight being 20/20, this was the only way to 
get Nick help.

       Little did we know that, by late-March or early April, Nick 
     and his girlfriend had decided to celebrate their being clean 
     by using heroin ``just this once'' as a reward for staying 

  They were rewarding themselves by using heroin to celebrate being 
clean. Now, understand, that is not proper thinking. That is not 
rational common sense.

       In the past, the two had snorted heroin but had never 
     injected it. When they went to buy from their dealer, he told 
     them that since they didn't have much money and there were 
     two of them, they could get a better high with less heroin if 
     they injected it. And that was the beginning of a rapid 
       On June 2, 2016, Nick had his first overdose. Without our 
     knowledge, his girlfriend had taken Nick, along with the 
     children, to the emergency room, where he was treated and 
     released within a few hours. Unbeknownst to us, this 
     initiated a call to CPS that would result in her daughter's 
     father taking custody of her and CPS involvement for Nick and 
     his girlfriend and their son.
       At the hospital, Nick and his girlfriend talked with a 
     doctor out of Pittsburgh about Suboxone. They agreed to try 
     the program. I traveled with Nick, his girlfriend and her 
     mother for the first visit to Pittsburgh. They had a high 
     success rate, and it was decided that once the treatment was 
     established, the two would go to Pittsburgh once a month for 
     drug testing, counseling and their Suboxone prescriptions. 
     The clinic would line up additional support services in 
     Parkersburg or close by. We were very impressed with the 
     clinic, their staff and their program, which only took on 100 
     patients at a time.
       Criss came to the next meeting two weeks later to speak 
     with the counselors and was now more comfortable with the 
     treatment plan. Unfortunately, when the counselors tried to 
     set up local support services, they were shocked to find the 
     small number of places that treated addiction and the fact 
     that the ones that were here would not provide services for 
     patients who were not in their program. The decision was made 
     to increase their sessions to twice a month and eventually 
     once a week when it became apparent through consistent 
     ``dirty'' screens that the two were struggling with the 
     program [and still using].
       In August, his girlfriend suffered an overdose. The 
     Pittsburgh Clinic called shortly after that and said that 
     they were releasing the two from the program, letting us know 
     that they needed a more intense treatment plan than they 
     could provide. I called the CPS case worker and addiction 
     counselor that were assigned to watch over the children and 
     monitor the two after Nick's overdose in June. We all met at 
     the house to determine the next course of action. After 
     numerous phone calls, we were able to find an ``open'' bed in 
     Las Vegas, Nevada, for Nick, while his girlfriend would 
     decide the following week to go to a treatment center in 
     Fairmont, WV.
       In less than a week, Nick was on a plane to Vegas, eager to 
     begin a new, clean life. He was upbeat and positive before he 
     left, excited by the prospect of finally leaving behind the 
     life of addiction that he'd been living for so long. During 
     his phone calls home, he had positive things to say about his 
     treatment. He was staying in nice homes that were part of the 
     treatment center. Along with their daily treatment schedule, 
     they were taken on hikes and went go-cart racing. He even had 
     a manicure at the facility's salon. The purpose of these 
     activities was to teach the patients natural ways of 
     experiencing highs.
       Nick's release date was scheduled for October 3rd. There 
     were longer-term treatment plans offered at the facility, but 
     Nick missed his son and worried about his girlfriend and 
     wanted to come home. The treatment center had set up group 
     sessions for him three times a week for a period of about six 
       Nick came home on a beautiful, sunny day. I waited at home 
     for him with his son, who had been staying with me, and his 
     other grandmother.

  I wish we had this picture of his son, a beautiful little boy.

       When I saw Nick for the first time, he looked beautiful. He 
     looked and acted like the Nick that we had known before 
     addiction. He told us about his stay in Vegas and was 
     literally shining with hope! He told me, ``Mom, I will 
     never go back to that life!'' And I believed it was 
       That hope began to fade pretty quickly. Nick had started 
     working about six weeks before he left for rehab. It had 
     taken him a long time to get that job and he enjoyed it and 
     felt that he could actually provide for his family if he 
     could work his way up. However, after rehab he was unable to 
     secure a job. Nick was going to his scheduled group sessions 
     and going to nightly NA meetings for support. Nick finished 
     up his six weeks of group therapy. He was so proud when he 
     received his ``sixty day's clean'' chip at the NA meeting. 
     Seven days later he and I spent part of the afternoon 
     together. He wanted to look for a job and I had some errands 
     to run. He dropped me off where I needed to be and applied 
     for jobs. When I finished, he picked me up and I took him to 
     Sam's Club to show him cute toys for his son for Christmas. 
     We picked out a racetrack together and I showed him a few 
     other things I had bought for my grandson. I had mentioned 
     that Criss might get his son a basketball hoop for Christmas 
     and he told me, ``No Mom, I want to buy that for him with my 
     own money.''
       We had a good afternoon together. He had made plans for the 
     evening, to meet up with some of his high school friends who 
     were in for the weekend. He left my house around eight 
     o'clock and I heard him return around 12:35 am. All of his 
     friends later said that he'd had a good night. He was happy 
     and smiling and there was nothing to indicate that there was 
     anything wrong. Shortly after I heard Nick come in, my 
     grandson's crying woke me up and I woke to change him, give 
     him a bottle. I headed back to bed and noticed the light on 
     in the bathroom and knocked and opened the door. It was 
     around 1:45 am and Nick was lying on the bathroom floor with 
     no pulse and not breathing. I called 911 and began CPR. 
     Within minutes the ambulance arrived. They worked on him for 
     some time while I spoke to the police officer then they took 
     him out to the ambulance. I assumed they had stabilized him 
     enough to transport him and waited for my in-laws to arrive 
     to watch our grandson.
       When Criss and I were called back into the emergency room 
     we did not expect to hear that Nick had passed. We didn't 
     expect that we would have to call our daughters to tell them 
     that their brother was dead or that we would sit in a room 
     with him feeling him go cold while we waited for our daughter 
     to arrive from Morgantown. We weren't able to get in touch 
     with our other daughter and had to send my sister over the 
     following morning to tell her the news. We didn't expect that 
     in less than two days we'd be picking out a coffin and 
     cemetery plot for our son.
       We expected that we would be sending him back to treatment 
     in the hope that the next round would be successful. We 
     expected another chance. And what we have now is the 
     knowledge that we failed our son in the worst way possible.
       Renee and Criss Fisher.

  There is a picture that would be hard to show because it was the most 
moving picture I have ever seen. They sent me the picture of Nick, this 
wonderful young man, lying in a casket and his little boy tiptoed up 
holding on. That should move all of us to do the right thing here, to 
start finding treatment centers, to start working with this illness, to 
find ways to understand, and to start intervening. You have to 
intervene from inception, from birth and all the way through, educating 
children. It is destroying economies. It is destroying families. It is 
destroying, basically, communities all over this country.
  It is something that I hope we all can fight. To lose a young man--
this was a terrific young man, and to lose him to drugs is uncalled 
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sullivan). The Senator from Utah.

                       Nomination of Neil Gorsuch

  Mr. LEE. Mr. President, I rise in support of the nomination of Judge 
Neil Gorsuch for the Supreme Court of the United States.
  Last week the Judiciary Committee, on which I serve, held a week-long 
series of hearings concerning Judge Gorsuch's nomination. After 
listening to the judge's flawless testimony, after listening to him 
answer questions from my colleagues for days on end, I am even more 
convinced than ever that he is exactly the kind of jurist we need on 
the Supreme Court of the United States.
  I want to briefly explain my support for the judge, and then respond 
to some of the criticisms that have been leveled against him.
  First and foremost, Judge Gorsuch understands the proper and 
necessarily limited role of the judiciary in our constitutional 
  Last week, over and over, Judge Gorsuch affirmed--even against great 
criticism that at times can be difficult to understand in its 
entirety--but responded time and again to criticisms by pointing out 
that it is his job as a

[[Page S2064]]

judge to interpret and apply the law--not to make it, not to establish 
policy, but to apply that policy which has already been placed into law 
by the legislative branch.
  When you are reading law, the text matters. Our laws consist of words 
and each word matters. If the law leads to an uncomfortable outcome for 
the parties, for politicians, or for anyone else in our society, then, 
it is our job as a Congress--or if it is State law at issue, it is the 
job of a State legislature--to get the policy right, to fix the policy 
problem at issue. The judge's job is to go where the law leads the 
judge, not to correct the law.
  Over and over, Judge Gorsuch affirmed the importance of precedent in 
our system. It is clearly a topic that he takes very seriously, having 
coauthored a treatise on that very subject. While precedent is not 
always absolute, in so far as you have a clear conflict with the text, 
Judge Gorsuch testified that you start with the ``heavy presumption in 
favor of precedent.'' He described precedent as the ``anchor of the 
  Over and over, Judge Gorsuch explained that judges are not partisans 
in robes. No, they are different. They are different from politicians. 
They are meaningfully different than the politicians who make the laws 
or the politicians in the executive branch who enforce and execute the 
laws. They are unfailingly independent when they are doing their jobs 
right. They are devoted to the rule of law. They do their best to 
decide cases on the basis of the law and the facts, rather than on the 
basis of achieving whatever outcome they or others might desire.
  Some of my colleagues' views of Judge Gorsuch's record are different, 
and I want to address some of their concerns. First, some of my 
colleagues have questioned the independence of Judge Gorsuch and his 
ability to exercise judicial independence. This is a very serious 
accusation. In fact, it is probably one of the worst things you could 
say about a judge. So my colleagues who have raised this criticism 
would need to back that up against something. If you are going to raise 
a really serious accusation against someone, as you are whenever you 
are calling into question a judge's independence, you have to be able 
to back it up.
  Let's look at that. Can they back it up? I don't think so. In fact, I 
am quite certain they can't because they haven't. The argument boils 
down to the complaint that Judge Gorsuch hasn't sufficiently criticized 
President Trump's comments about judges. But here is what Judge Gorsuch 
said about this topic last week. He said this in response to questions 
raised by Senator Blumenthal on the Judiciary Committee. He said:

       Senator, I care deeply about the independence of the 
     judiciary. I cannot talk about the specific cases or 
     controversies that might come before me, and I cannot get 
     involved in politics.
       But, Senator, when you attack the integrity or honesty or 
     independence of a judge, their motives, as we sometimes hear, 
     Senator, I know the men and women of the Federal judiciary, a 
     lot of them. I know how who hard their job is, how much they 
     often give up to do it, the difficult circumstances in which 
     they do it. It is a lonely job, too. I am not asking for 
     crocodile tears or anything like that. I am just saying I 
     know these people, and I know how decent they are. And when 
     anyone criticizes the honesty or integrity, the motives of a 
     Federal judge, well, I find that disheartening, I find that 
     demoralizing, because I know the truth.

  Senator Blumenthal asked Judge Gorsuch whether, when he said 
``anyone,'' that applied to the President of the United States. Judge 
Gorsuch responded simply: ``Anyone is anyone.'' It is true that Judge 
Gorsuch didn't use the magic words: I disagree with President Trump. 
But he can't get involved in politics. He said here what he can say. In 
fact, he said all he can say in this context.
  Moreover, here are some additional parts of Judge Gorsuch's 
testimony, which shed light on this issue.
  From Tuesday:

       I have no difficulty ruling against or for any party other 
     than based on what the law and the facts in the particular 
     case require, and I'm heartened by the support I have 
     received from people who recognize that there's no such thing 
     as a Republican judge or a Democratic judge. We just have 
     judges in this country.

  On Wednesday he said:

       I do not see Republican judges, and I do not see Democrat 
     judges. I see judges.

  So I think any fairminded person looking at this would have to agree 
that Judge Gorsuch's feelings about judicial independence in cases 
before the Federal judiciary are very clear. To my colleagues who might 
see the issue differently, I would ask simply: What should Judge 
Gorsuch have said without getting involved in politics, without miring 
himself in a debate that is within the political branches of government 
and, therefore, within the political rather than the judicial 
interpretive arena?
  Second, some of my colleagues allege that Judge Gorsuch is somehow 
out of the mainstream. But consider these facts. Judge Gorsuch has 
decided roughly 2,700 cases. His decisions have been unanimous 97 
percent of the time. Keep in mind that he is an appellate judge who 
sits on the U.S. Court of Appeals for the Tenth Circuit. Appellate 
judges never sit alone in that capacity. They sit in panels--normally 
in panels of three and sometimes in panels of a dozen or so when they 
sit on the bench. And 97 percent of the time, all of the judges with 
whom Judge Gorsuch sits in any case agree with whatever decision he 
reaches. He is in the majority 99 percent of the time.
  He is about as likely to dissent from a Republican-appointed judge as 
a Democratic-appointed judge. He has been reversed twice, and in both 
cases he was following circuit precedent. I want to make it clear that 
there is nothing wrong with a judge who dissents more than this. In 
fact, in many instances, dissents are necessary. In many instances, a 
dissent can be useful, even indispensable. There are judges out there 
who dissent more than this, and there wouldn't be anything wrong with 
Judge Gorsuch if he dissented any more. My point is that of all the 
arguments you can make against Judge Gorsuch, this is not a fair 
characterization. To say that he is out of the mainstream simply runs 
against mathematics. It runs against the bold statistics on their very 
face, which contradict this characterization.
  Some of my colleagues respond that only a handful of cherry-picked 
cases matter. If you watched the hearing last week, you might recognize 
the names of some of these cases. They include TransAM Trucking, Hwang, 
Luke P., Hobby Lobby. What I find revealing is that my colleagues never 
mount much of a legal argument against any of these decisions. No, you 
are not going to find quibbling with the statutory construction in 
these cases. They don't parse the statutes at issue and then explain 
where it is that Judge Gorsuch somehow got it wrong, somehow departed 
from what the law actually says. No, they are looking at outcomes. They 
think Judge Gorsuch should have bent the law in order to go where they 
think the law should go. They want judges who have the right approach 
in mind, the right outcome in mind, and to decide the case according to 
what outcome they desire.
  I flatly disagree with this view of judging. It is a view, frankly, 
that is way out of the mainstream in American law. To say it is out of 
the mainstream in American law does not mean out of the Republican 
mainstream or the conservative mainstream or the mainstream among 
members of the Federalist Society. No, I am talking about rank-and-file 
practitioners of the law, jurists from every conceivable point along 
the political and ideological spectrum. This is just not something that 
a judge would ever want to admit to doing. Certainly, it is never 
anything a judge would aspire to do--to choose an outcome and say: I am 
going to reach that outcome, and I don't really care that the law 
doesn't really authorize me to do it. I am just going to do it because 
I think, in some abstract sense, that outcome would achieve a greater 
degree of fairness than what the law actually requires me to do.
  Third, I am distressed by a lot of the rhetoric that we heard during 
the confirmation hearing last week--rhetoric that I expect to continue 
and even mount over the next 10 days or so. One of my colleagues last 
week actually went so far as to describe the Supreme Court of the 
United States as an ``instrument of the Republican party.''
  Other colleagues have complained about the so-called dark money 
campaign to support Judge Gorsuch's nomination, and still other 
colleagues complain that President Trump or Steve

[[Page S2065]]

Bannon or Reince Priebus or others are enthusiastic about Judge 
Gorsuch's nomination, as if the fact that someone is supported by 
someone they don't like means that the person in question is not 
qualified. This is unfair to Judge Gorsuch.
  Judge Gorsuch didn't decide Citizens United. He didn't decide Hobby 
Lobby or any other case my colleagues dislike. He made clear in no 
uncertain terms that no one speaks on his behalf but him.
  They may dislike some of the cases in which he offered opinions, but, 
again, in those cases, they are not quibbling with the way that he 
interpreted the law. No one has attacked his interpretation of a 
statute, his approach to statutory construction. They are quibbling 
with the outcome. They are quibbling with the fact that they wish it 
had turned out differently on policy grounds, policy grounds that have 
everything to do with the policymaking arms of the government and not 
with the jurisprudential arm of the government.
  Even worse, these types of statements are damaging to our judiciary. 
If you don't like a judicial decision, engage the decision on its own 
terms, engage in a discussion of how that decision turned out wrong or 
where it is that it departed from what the law requires. Make a legal 
argument, in other words.
  The courts announce reasons for their decisions. There is plenty of 
material to dig into, but don't impugn the judge's motives or 
independence. This is especially harmful when you impugn the judge's 
motives without actually getting into what the judge did or what the 
law says and explaining how those two things diverge.
  Don't accuse the Supreme Court of functioning as an instrument of the 
Republican Party. In fact, you might as well call someone a so-called 
judge in a case where you disagree with the outcome. In fact, calling 
someone a so-called judge is probably no worse than calling the Supreme 
Court of the United States an instrument of the Republican Party.
  Finally, I want to talk about the filibuster. The minority leader has 
urged his colleagues to filibuster. The minority whip has announced he 
will filibuster. Only two Democrats have said they will vote yes on 
cloture, so here we are.
  I ask my colleagues: If Neil Gorsuch can't get 60 votes for cloture, 
which Republican nominee can?
  Some of my colleagues have argued that if a nominee can't get 60 
votes, the President should find a new nominee. I ask my colleagues: 
Was that the standard for several of President Obama's nominees at the 
U.S. Court of Appeals for the DC Circuit?
  Well, yes, it was. Under rule XXII, that was the standard. That was 
the standard until, in November of 2013, the Democrats in the Senate 
went nuclear, and they created a new precedent, taking that threshold 
down from 60--by precedent--to 51. Through going nuclear, this is the 
result they achieved.
  Their analysis, in its entirety, went in this direction. Their 
analysis nuked the Executive filibuster. It nuked the filibuster on the 
Executive Calendar.
  Interestingly, although some were insisting at the time and went to 
the floor to explain at the time that they didn't intend for this to 
extend to Supreme Court nominees, when everyone thought Hillary Clinton 
would be President--Harry Reid admitted that the Democrats would extend 
this same precedent through which the Democrats had nuked the Executive 
filibuster to Supreme Court nominees.
  So, look, I work with my colleagues on the other side of the aisle on 
a great number of important issues, issues that are very important to 
me, issues like criminal justice reform, reform of the Foreign 
Intelligence Surveillance Act, reform of the Electronic Communications 
Privacy Act of 1986, which is badly in need of reform, and a number of 
other issues, many of which involve privacy protections. These are A-
plus legislative priorities for me. Nothing else is more important, and 
I stand ready to reform the law whenever I see the need to do so and 
will continue to work with my Democratic colleagues.
  As we approach this discussion, I want to be clear that unilateral 
disarmament doesn't work. I hope the Democrats reverse course and do 
not filibuster this nominee, but if they do, I am confident Judge 
Gorsuch will be confirmed.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I ask unanimous consent that Senator 
Whitehouse speak after me, followed by Senator Cotton, if he is on the 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. HIRONO. Mr. President, I rise in opposition to both of the 
Congressional Review Act, or CRA, resolutions related to retirement 
that we will be considering this week. These CRA resolutions before us 
would kill Federal regulations that give cities and States the 
opportunity to expand retirement options for individuals.
  Our Nation faces a retirement crisis. In Hawaii, about 50 percent of 
private sector workers have jobs that don't provide retirement 
  According to a recent survey by AARP Hawaii, 56 percent of working 
age people feel anxious about having enough money saved for retirement. 
For generations, Americans relied on the ``three-legged stool'' of 
retirement: Social Security, private savings, and a pension from their 
employer. Those days are gone. More and more seniors are relying on 
Social Security for a bigger share of their income in old age.
  In Hawaii, the average monthly Social Security benefit is $1,408. 
Given the cost of housing, medical insurance, and other necessities in 
Hawaii, that is not nearly enough.
  Seniors should be able to count on us to keep Social Security strong. 
That is a bedrock position we should honor.
  Given the retirement crisis, taking away tools that States and local 
governments can use to help bolster retirement savings makes absolutely 
no sense, yet this is what we are about to do if we pass these CRA 
  Last week, the Hawaii State Senate held a hearing on legislation that 
would establish a Hawaii retirement savings working group. The proposed 
legislation would bring together public and private stakeholders to 
look at ways to improve retirement savings for workers. A number of 
stakeholder groups, retirees, and other citizens testified on the bill.
  Let me tell you one of their stories. His name is Donald. He is a 61-
year-old gay man who has lost three husbands to HIV/AIDS. Donald has 
worked for 35 years and even set aside money for retirement using 
401(k)s--401(k)s that he cashed out to help cover medical costs for his 
loved ones.
  He said: ``I did what I had to do out of love and devotion, 
especially when each of my guys' families took a step back in the face 
of adversity.''
  Donald now lives paycheck to paycheck in senior affordable housing. 
He plans to work until he is at least 65.
  Personal tragedy isn't the only reason it is difficult for him to 
save. He wants to save, but he noted that ``I am trying to muster some 
form of IRA through local financial institutions to no avail. No one 
returns the calls.''
  For too many working people, saving for retirement isn't automatic or 
easy. It seems out of reach, but we can't let that stand.
  The Obama administration recognized the retirement crisis in our 
country and the need for new thinking to help people save. In fact, 
that is the point of the regulations the Senate is poised to kill. 
These regulations simply provide a framework that States and cities can 
use to expand access to retirement savings.
  There are no Big Government mandates or industry takeovers. States 
and cities would simply have the opportunity to be creative and help 
families save for retirement. The fact Republicans want to kill these 
rules has a certain ``Alice in Wonderland'' quality to it, where up is 
down and down is up.
  For the last few weeks, Republicans touted how TrumpCare was giving 
States more flexibility to provide healthcare, while the reality was 
that for a State like Hawaii and many others, TrumpCare would have 
saddled them not with more flexibility but more costs. At that point, 
States' rights was one of the selling points for that disastrous 
  This week Republicans have taken a U-turn. Now they are trying to 
kill regulations that would actually give States more flexibility to 
provide retirement security. Why we should take

[[Page S2066]]

away this tool from States is beyond me. Cynics would say Republicans 
are doing this to help some private entities sell more retirement plans 
to people. However, the reality is that millions of families are not 
being served.
  Killing these rules is the latest Republican attack on working 
people. We should be fighting to give people like Donald more hope and 
opportunity. Voting against these resolutions is a vote to help people 
like Donald.
  I urge my colleagues to join me in opposing what I can only 
characterize as lousy anti-working people resolutions.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business for up to 17 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                      Our Nation's Infrastructure

  Mr. WHITEHOUSE. Mr. President, with the Republican plan to defeat the 
Affordable Care Act itself defeated, President Trump says he wants to 
move beyond healthcare to focus on other priorities. One area that he 
has often highlighted is our Nation's crumbling infrastructure, which 
is a priority that many of us share and is something I would like to 
discuss today.
  All of our kids, I suspect, dread having to bring home a lousy report 
card. They would be facing a serious talk.
  Every 4 years, the American Society of Civil Engineers issues a 
report card for American infrastructure. Our 2017 report card--out just 
this month--shows lousy marks across the board for American 
infrastructure. Our ports and bridges got C-pluses, flat Ds for both 
drinking water infrastructure and roads, and our energy grid got a D-
plus. Overall, the United States took home a D-plus grade point 
average. It is not pretty, and not an improvement over the scores we 
got 4 years earlier.
  A report card is a progress report, and our grades show we are not 
making progress. So it is time to get serious about the sorry state of 
America's roads, bridges, ports, and pipes, which literally keep our 
economy moving.
  The Civil Engineers estimate that we need an additional $2 trillion 
in infrastructure investments over the next 10 years to get our 
infrastructure back to a B grade level. The study also found that there 
is a cost for lousy infrastructure--that we are set to lose nearly $4 
trillion in GDP and $7 trillion in lost business sales by 2025, which 
would result in 2.5 million fewer jobs that year.
  America's declining infrastructure also faces growing demand. The 
Bipartisan Policy Center estimates an additional 100 million more 
people will rely on our transportation system by midcentury. The U.S. 
Department of Transportation says that we can expect twice the level of 
freight traffic on our highways and roads by then, so our already worn-
down infrastructure is going to take an even heavier beating. We have 
to be ready for this. We have to make smart investments in the 
infrastructure backbone of American commerce. We should make those 
investments now, and we should make them for the long term.
  I am hopeful. Transportation infrastructure has been a rare 
bipartisan bright spot in Congress. After all, our red States and our 
blue States both have bridges that age and water mains that rupture.
  Congress has tried many times to push large bipartisan infrastructure 
bills. In the 112th Congress, a bipartisan group led by Senators Kerry, 
Graham, and Hutchinson, introduced the BUILD Act to create a national 
infrastructure bank that would have authorized up to $10 billion to 
underwrite transportation, water, and energy projects.
  The Partnership to Build America Act, introduced in the 113th 
Congress by Senators Bennet and Blunt, also proposed an American 
infrastructure fund, this time financed with a form of tax 
  In the 114th Congress, we were actually able to pass the first long-
term transportation law in 10 years. The FAST Act--short for Fixing 
America's Surface Transportation--authorized more than $300 billion in 
transportation infrastructure investment over a 5-year period.
  We also passed the Water Infrastructure Improvements for the Nation 
Act to address drinking water emergencies and authorize a number of new 
Army Corps of Engineers projects, including the removal of pilings and 
debris from the Providence River in Rhode Island. These bipartisan 
successes, however, barely put a dent in our Nation's total 
infrastructure needs.
  Out on the campaign trail, then-candidate Donald Trump spoke broadly 
of a $1 trillion infrastructure push. I agree we have to make that 
investment in America's infrastructure, but we also need to make sure 
we get real commitment from Washington, not just public-private 
partnerships and nebulous tax cuts. To bring our roads and bridges into 
the 21st century, we need a far-reaching infrastructure program like 
Franklin Roosevelt's Works Progress Administration.
  The Joint Economic Committee's Democratic contingent put out a report 
analyzing the President's proposal to use investor tax credits to close 
our infrastructure gap. What they found was that using these tax 
credits alone would actually ``cost nearly 55 percent more than 
traditional infrastructure financing.'' We can't let infrastructure 
turn into a special interest boondoggle.
  In the absence of any sort of Executive plan or strategy, Senate 
Democrats, led by Minority Leader Schumer, put forward our own 
blueprint to rebuild America's infrastructure. It would invest $1 
trillion in the Nation's infrastructure, as the President wished, 
creating over 50 million American jobs. The blueprint encompasses not 
just roads and bridges but parks, schools, hospitals, and airports. It 
calls for investing $100 billion in smalltown communities that need 
revamped infrastructure, over $100 billion in aging water and sewer 
systems, $50 billion in our railways, over $100 billion in public 
transportation, and $30 billion in our essential port infrastructure. 
It would put billions toward modernizing our energy grid by connecting 
rural areas and driving investment in clean energy.
  It includes strong support for American workers--something the 
President claims as a priority--with ``Buy American'' provisions to 
promote American-made products and protections like the Davis-Bacon law 
to make sure Americans earn fair wages.
  For a coastal State like Rhode Island, which has to prepare for 
rising seas and increased storm surges from climate change, the 
blueprint includes $25 billion to improve coastal infrastructure and 
make coastal communities more resilient. This includes competitive 
critical infrastructure resiliency funding, a new Resilient Communities 
Revolving Loan Fund, and support for the National Oceans and Coastal 
Security Fund, which I authored sometime ago to research, restore, and 
reinforce our cause. Our plan is big, it is bold, and it should garner 
the support of anyone who says they want to improve America's 
infrastructure and create jobs at home.
  This work is vitally important in my home State. The American Society 
of Civil Engineers' report card shines a light on Rhode Island's 
particular infrastructure woes. It shows we need $148 million for 
drinking water infrastructure needs and nearly $2 billion for 
wastewater infrastructure fixes over the next 20 years. We have $4.7 
million of backlogged park system repairs and a $241 million gap in 
needed upgrades at schools.
  More than half of our roads are in poor condition. A lot of our 
infrastructure, unlike Alaska, dates back to colonial days when the 
foundations of our roads were first traveled by ox carts. This state of 
disrepair costs my constituents a lot of money. I have been told by the 
transportation research group TRIP that driving on cracked and 
crumbling roads in Rhode Island costs our motorists $604 million per 
year--more than $810 per motorist, per year, in vehicle repair and 
operating costs from banging into potholes.
  In our State, 56 percent of the bridges are deficient or obsolete. 
That, I am sorry to say, is the worst rate in the country. Those 
bridges have been around a long time in many cases, and they are 
literally falling down piece by piece. It can be pretty shocking to 
  This photo shows part of the 6/10 Connector in Providence. The 
interchange is a vital link in the State's highway network for vehicles 
traveling between

[[Page S2067]]

Interstates 95, 195, and 295. It was built in stages through the 1950s, 
and it can no longer accommodate the approximately 100,000 automobiles 
and heavy trucks that travel on it each day. Our department of 
transportation has spent millions of dollars on temporary maintenance 
to keep the interchange shored up and in operation, but you can see 
that this type of jury-rigging is not a lasting solution.
  While Rhode Island directs millions of State funds to repair and 
replacement of these structures, we need some Federal financing to 
ensure that this work gets done before a serious failure occurs, which 
could disrupt commerce up and down the entire Northeast Corridor.
  The evidence of dangerous disrepair is all over my State. This photo 
depicts a crumbling bridge on Route 37, the east-west freeway servicing 
the cities of Cranston and Warwick. The tumbledown cement and rusting 
ironwork are not reassuring. Here is another graphic showing a rusted 
and ramshackle bridge over Highway 95. We can save money in the long 
term--a stitch in time saves nine--if we can get on to these repairs 
and get these bridges fixed.
  We also have to consider the bridges, roads, ports, rails, and other 
transit systems in the Ocean State that are, as you might imagine, very 
close to our coast. This infrastructure is at particular risk from sea 
level rise, from storm surge, and from the more severe storms that come 
at us offshore, driven by warming seas and climate change.
  Recently, NOAA released updated global sea level rise estimates, and 
they focused those global estimates on the U.S. coastline. The estimate 
for their ``extreme'' scenario--that is, if we continue to emit high 
levels of carbon pollution--was increased by half a meter, to a total 
of 2.5 meters or over 8 feet of global mean sea level rise by 2100.
  My State's Coastal Resources Management Council has adopted the 
``high'' scenario for planning purposes and made the adjustments for 
the local conditions, and they now put 9 vertical feet of sea level 
rise as the expectation for Rhode Island's coast by 2100. Of course, as 
any coastal Senator knows, when you go straight up 9 feet, you can go a 
long way back, pushing the shoreline into what is now inland, flooding 
a lot of infrastructure.
  We need to protect evacuation routes from flooding, we need to 
bolster hurricane barriers, and we need to replenish beaches and 
nourish wetlands. To protect infrastructure from storms, we need to 
raise ports and reinforce bridges that are exposed to corrosive 
saltwater from storms. We need to manage upstream reservoirs to control 
downstream flooding. We need to protect groundwater drinking water 
supplies from intruding saltwater. We need to retrofit lowland 
wastewater treatment plants that are in danger of flooding. Some of 
them are not just in flood zones, they are actually in velocity zones 
where wave action is expected against the structures. These 
improvements are essential to meeting our infrastructure needs over the 
coming decade.
  Every coastal State--especially those in the Northeast and the 
western Gulf of Mexico, which are expected to see the most dramatic 
rises in sea level--should be nervous. That is why the Democratic 
infrastructure blueprint includes funding for resilient coastal 
communities, including support for the National Oceans and Coastal 
Security Fund. I have worked to establish this lifeline for coastal 
infrastructure since my early days in the Senate. Once we fund it, it 
can be a tremendous resource for coastal communities needing 
infrastructure improvement and smart coastal adaptation.
  President Trump has said he wants a $1 trillion infrastructure bill. 
I am ready to roll up my sleeves and ``git 'er done.'' Democrats have 
put forward a blueprint for making the investments our Nation so badly 
needs. Congress can come together on a plan that can provide direct, 
long-term support and help communities address current needs, while 
also preparing for the changes we know are coming down the pipeline at 
us. I say to my Senate colleagues and to the administration, let's get 
to work.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.

                           Middle East Codel

  Mr. COTTON. Mr. President, I returned last week from the Middle East, 
where several colleagues and I spent the weekend meeting with leaders 
and security officials in Lebanon, Jordan, and Israel. As usual, the 
men and women who assisted us were consummate professionals, whether it 
was the U.S. Marines, Embassy personnel, or our own military escorts 
and congressional staff. They all did a superb job, and I want to 
extend to them my deepest thanks. I want to say a few words about what 
we learned while we were there.
  Contrary to conventional wisdom, our allies told us they are more 
optimistic about their relationship with the United States now than 
they were under the last administration. If you thought diplomacy 
consisted simply of suave sophistication, I can understand your 
confusion. But among our allies, there is no confusion about what their 
interests are, how the United States shares them, and which country in 
the whole region threatens them most of all--Iran. Once you realize 
that, it is not so hard to understand their morale boost. Do they watch 
what we say? Yes, of course, very carefully. But they watch even more 
carefully what we do, and even though our foreign policy was cloaked in 
``pretty words'' over the last 8 years, they see the difference in 
leadership as clear as day. The last President coddled Iran, and this 
President is confronting Iran.
  Every conversation we had drove home this point: Iran is the single 
most destabilizing force in the Middle East. That is because it is more 
than a regional power, it is a revolutionary power. The regime in 
Tehran is not satisfied with finding good trading partners or even 
bullying other countries into proper neighborly deference. Big 
countries throw their weight around all the time, after all. No, what 
is different about this regime is that it is not trying to create 
clients; it is trying to create clones. It wants to expand its 
influence by subverting legitimate governments in places such as Yemen 
and Lebanon and replacing them with radical regimes. Countries that it 
can't subvert, it tries to destroy, like our friend Israel. And its 
aggressive sectarian ideology drives Sunni Muslims into the arms of 
extremist groups like the Islamic State.
  There is no getting around the fact that in the Middle East, the 
answer to most questions is Iran, and our allies have told me 
repeatedly in recent months that they need our help to confront 
Tehran's campaign of imperial aggression.
  In Lebanon, I am happy to say there are some signs of hope. The new 
Prime Minister, Sa'ad Hariri, has formed a government and is 
purportedly on the verge of approving a budget--the first of its kind 
since 2005. For years, the Lebanese Government has struggled with the 
growing influence of Iran's proxy, Hezbollah, members of which are on 
trial for carrying out the assassination of the Prime Minister's 
father, Rafic, in 2005. But now that Hezbollah is committed to the war 
in Syria, the Lebanese Government has an opportunity to take control of 
its border, its army, and its governing institutions, free of their 
terrorist influence. We should take all prudent steps to support 
Lebanon as it strives to create security and stability for its own 
people and its neighbors.
  Then there is Jordan, which for so long has been a relative island of 
calm in a tumultuous region. The Hashemite monarchy has been a faithful 
friend to America for years, but now, for the first time in recent 
history, Jordan faces a hostile, aggressive power on its borders--ISIS. 
It is also under an immense strain as it deals with hundreds of 
thousands of Syrian refugees living in its territory. Today, Jordan 
spends up to 25 percent of its budget on helping refugees. We need to 
continue helping this bulwark of stability stand against the forces of 
Islamic extremism by sharing intelligence, helping train police and 
counterterrorism forces, and partnering in the fight against ISIS.
  Finally, there is Israel, which it is no secret that the regime in 
Tehran has vowed to destroy. While we were overseas, Israeli warplanes 
struck deep into the heart of Syrian territory. They were targeting a 
convoy of advanced missiles bound for Hezbollah. In a serious 
escalation, Syria fired missiles not

[[Page S2068]]

only at Israeli aircraft but at Israeli territory, one of which was 
intercepted by the Arrow 2 missile defense system. This incident goes 
to show just how important our aid is to protecting Israel's security 
and how important Israel is to confronting Iranian-sponsored 
aggression. We must continue to support Israel and its development of 
advanced missile defense systems.
  I am happy to report that all three of our allies continue to seek 
ever-closer friendship with the United States. They are optimistic 
about their ability to work together under the new administration, and 
they sincerely appreciate everything our country has done for them.
  I saw for myself a reminder of this country's sacrifice at the U.S. 
Embassy in Beirut. There, you will find a memorial that is dedicated to 
the 241 Americans who died in the terrorist bombing of our Marine 
barracks in 1983. That atrocity was committed by Hezbollah, if anyone 
needed a reminder as to why we fight alongside our allies against the 
Iran-Hezbollah-Syria axis in the contest of supremacy in the Middle 
  If our trip taught us anything, it was that our allies will not give 
up the fight but that it will take American leadership to stop Iran's 
campaign of imperial aggression.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Ernst). The Senator from Colorado.


  Mr. GARDNER. Madam President, I rise to talk about the continuing 
challenge that our agricultural communities face across this country.
  Just a couple of weeks ago, I came to the floor and cited a Wall 
Street Journal article with the headline: ``The Next American Farm Bust 
Is Upon Us.'' Living in eastern Colorado, in a purely 100 percent 
agricultural community, I understand that when there is a downturn in 
the ag economy, it does not affect businesses on Main Street later that 
week or later that month; it affects them that very same day. He is not 
just somebody who is going in to buy a bag of seed or somebody who is 
going to the local implement dealer to buy a tractor. He is somebody 
who decides he is not going to be able to buy that pair of blue jeans 
that he thought he would or that piece of equipment he needed to help 
fix the fence. It means that the entire economy in towns like Yuma, CO, 
Burlington, CO, and Dove Creek, CO, are going to suffer enormously. 
That is why it is important that we continue the conversation in the 
U.S. Senate about what is happening in agriculture across this country.
  I recognize that many people, when they think of Colorado, probably 
do not think of farms and ranches on the flatlands and prairies. They 
probably think more of Kansas for that than they do Colorado. If you 
look at Colorado, it is more than just snowcapped peaks; it is 
incredible agricultural diversity as well.
  According to the 2016 National Agricultural Statistics Survey, 
Colorado ranks in the top 10 in production for the following 
agriculture commodities: barley, beans, sweet corn, alfalfa, potatoes, 
millet, sorghum, sunflowers, wheat, cabbage, cantaloupe, onions, 
cattle, lamb, and wool. Colorado is one of the top 10 producers in 
those commodities. It is a remarkable list that shows the diversity of 
Colorado from the plains to the mountains and the incredible production 
levels that we have achieved.
  One of the goals I have had in the Senate, of course, is to help make 
sure that we have the right policies to support our farmers and 
ranchers throughout Colorado who are producing everything from barley 
to potatoes. I want to make sure that we work to add even more crops to 
this list of the top 10 in order to strengthen the agricultural 
industry in Colorado.
  As I mentioned a few weeks ago when I came to the floor to talk about 
that crisis, the Wall Street Journal article highlighted a story from a 
farmer in Kansas. I recently talked to a farmer in eastern Colorado who 
is getting paid $3.21 for a bushel of corn, but to pay the bills, his 
break-even point on that bushel of corn--the amount of money that it 
took to make that corn bushel--was $3.92 cents. So he was getting paid 
$3.21, and it cost him $3.92. That is not the right side of an equation 
to be on if you are in business and, particularly, if you are hoping to 
pass that business on to future generations.
  I think it is important that the Senate talk about commodity prices 
and that we talk about the impact that increased Federal regulations 
have had which make it more difficult for that farmer to survive, that 
have driven up the cost of doing business, that have driven up the cost 
that you need to be paid per bushel of corn so that you can help make 
ends meet.
  I talk about barriers to exports and limited financing options. Those 
are four things that we have to lay out--commodity prices--and deal 
with. We have to make sure that we are decreasing the number of Federal 
regulations. We have to make sure that we remove barriers to export and 
allow agriculture to export. We have to make sure that we are removing 
any obstacles to the financing that a farmer or a rancher may have, 
particularly if the economy continues to deteriorate in our 
countryside, and we have to make sure that we have certainty in ag 
policy and certainty in regulations. The farm bill conversations 
continue. Let's make sure that we provide the certainty to our ag 
communities that they deserve and, quite frankly, demand.
  According to the 2017 Colorado Business Economic Outlook--and this is 
an incredible statistic--net farm and ranch incomes are projected to be 
down almost 80 percent since the records that were set in 2011. By 80 
percent, net farm and ranch incomes are projected to be down. An 80 
percent drop in just a few years is devastating for rural communities. 
I believe the exact numbers in Colorado are something like going from 
$1.8 billion in farm income to a little over $300 million in farm 
income just over a matter of a few years.
  While we have done a good job of addressing regulatory concerns, we 
have to make sure that we are doing a good job of addressing continued 
trade opportunities in this country as well. Corn and wheat prices are 
hitting 10-year lows. The price is so low that it costs farmers more to 
produce the crop, as I mentioned, than it is worth on the market. You 
do not have to be an economist to figure out that that is not going to 
let you stay in business for much longer.

  Simply put, we have a lot of people who are worried in Colorado and 
across this country for agriculture and our rural communities, which 
are dependent on their farms and ranches. The Presiding Officer is from 
the great State of Iowa--a leader in this country when it comes to 
agriculture. Whether you live in the Eastern Plains of Colorado or in 
the great State of Iowa, the fact is we have to provide that leadership 
on a global stage to make sure that our ag communities survive and 
  Earlier this year, I sent a letter to the Colorado Farm Bureau that 
solicited feedback on what Congress and the Federal Government could do 
to support Colorado agriculture. In their response, I received a number 
of recommendations from the Colorado Farm Bureau and a number of 
organizations that they reached out to to respond to my request and my 
  On the list, of course, was regulatory reform--one of the four 
pillars that we have to address in order to have successful agriculture 
in this country. Their concern is that overregulation creates 
uncertainty in regulations like the waters of the United States and the 
BLM 2.0 rules.
  The good news is that, with regard to both of these rules, we have 
been able to roll them back. According to the Colorado Farm Bureau, the 
waters of the United States regulation threatened to add additional 
regulatory compliance requirements to thousands of stream miles and 
thousands of acres of agricultural land.
  To put that in layman's terms, it basically would have said: Hey, 
you, the Federal Government, you are in charge of every molecule of 
  That is not good for agriculture. Thankfully, the administration has 
said: No, we are going to stop that, and we are going to repeal it. 
Courts across this country had actually put in stays.
  The Presiding Officer from the great State of Iowa--our colleague, 
Joni Ernst--was a leader when it came to stopping the waters of the 
United States regulation. Luckily, we have seen that regulation being 
stopped in its tracks.
  In Colorado, two-thirds of waterways were identified as what is known 

[[Page S2069]]

``intermittent flow.'' That means that they do not have water in them 
year round, that, part of the year, they are dry. Yet they would have 
been subject to a regulation known as the waters of the United States, 
even though they did not have water in them. That is the absurdity of 
the Federal Government. So I am glad that we are able to start rolling 
back these regulations.
  At the same time, the Bureau of Land Management had started a process 
known as its BLM 2.0 rulemaking process, which is a rule that they had 
issued that they thought would deal with complex permitting issues and 
land use decisions. Unfortunately, what this rule would have done 
instead is take away access to thousands of acres of Federal land that 
were used for grazing. Even more disturbing, it would have given 
somebody in downtown New York City just as much say over the land in 
Moffat County, CO, as a Moffat County commissioner--somebody who lives 
there--amongst various agencies in the Federal Government that oversee 
thousands of acres of public lands. That, too, was overturned by the 
U.S. Senate.
  In fact, if you look at the total number of regulations that the 
administration and that the U.S. Congress has been able to overturn, we 
are approaching $60 billion worth of regulatory relief that we have 
been able to give to the American people; $60 billion worth of 
regulations have been taken off the backs of hard-working Americans and 
has allowed them to do their jobs easier, allowed them to make ends 
meet easier, allowed them to breathe easier when it comes to job 
creation and job opportunity.
  I am very glad that we saw the BLM 2.0 rule repealed, which gives our 
people in Colorado a little bit more of a chance to have a say in what 
happens in their front yards and their backyards. Of course, the waters 
of the United States has to continue to be something that we stop as we 
move forward.
  There are other positive steps we should take to give our producers 
additional regulatory certainty. I know there is more that we can do, 
and I hope to hear from our Nation's farmers and ranchers and our 
farmers and ranchers in Colorado on how Congress and the Federal 
Government can help.
  So I use this opportunity to make an appeal to people across the 
country in order to hear from farmers and ranchers, whether you are in 
the Eastern Plains of Colorado or on the Western Slope of Colorado or 
in the great State of Iowa or Kansas or anywhere in between and outside 
the State of Colorado--inside and outside--of the things that we can be 
doing, such as with trade policy, regulatory policy, financial services 
opportunities, making sure we have farm bill programs that are working. 
Back in my office, we want to hear about these ideas and about thoughts 
moving forward on these important issues so that we can have an 
agricultural community that thrives and so that we can make sure that, 
when we talk about bringing generations of farmers and ranchers back to 
the farm and the ranch, we will get their ideas on how best to do that.
  This week, I will be sending letters to the Colorado Agriculture 
Council, which is made up of organizations across the agricultural 
spectrum in Colorado, as well as to Don Brown, who is the commissioner 
of the Colorado Department of Agriculture, on what else Congress and 
the Federal Government can do to help support this industry. Also, 
there is Julie McCaleb, the Colorado Agriculture Council chair.
  Basically, I will be writing: Hey, whether it is regulations or 
legislation, it is important that the administration and Congress 
understand the impact their policies will have on agriculture. I look 
forward to hearing from you, your member organizations, and farmers and 
ranchers throughout the State on how we can work together to ensure 
Colorado agriculture continues to be effectively represented in 
  We will be sending this letter, of course, to Commissioner Don Brown. 
Commissioner Brown is from my hometown. He is a corn farmer and a 
cattleman. He is somebody who understands firsthand the hard work and 
challenges that go into making ends meet in agriculture. He also 
understands the suffering that we are seeing in the farmland right now 
and that some people may be at their wits' end in terms of trying to 
deal with their financial struggles.
  We will be sending these letters out. I encourage people--farmers, 
ranchers, and leaders in counties--to contact my office and give us 
their ideas on how we can turn this ``could be coming'' crisis around 
so that we can actually start improving and growing agriculture again 
and so that we can make sure that we lead Colorado's diverse 
agricultural economy into a better state than it is today--in a better 
place than it is today--in terms of the economy.
  Here, in the Senate, I believe that same bipartisan support exists 
for all of us to be reaching out to our communities and making sure 
that we hear from the heartland of America what we can do to help 
struggling farmers and ranchers.
  I thank the Senator for her leadership in agriculture.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. Madam President, here in America we hope that families 
will have the opportunity to build successful lives in preparation for 
a beautiful retirement. That involves many different factors. It 
involves the solvency of Social Security. It involves the foundation of 
a good, living-wage job. It involves, certainly, the question of 
whether, through one's life, they are able to save for retirement.
  This has become more and more important over time because fewer and 
fewer jobs have a retirement pension plan. Without that, it is really 
incumbent on the individual to be able to succeed to put money aside, 
and we know how difficult it is for an ordinary working family to have 
the extra funds to be able to put into a retirement account. Certainly, 
we want to make that as simple and as easy as possible. But what we 
know is that the simplest strategy--which is to be able to save through 
your work, to be able to have funds automatically deducted from your 
paycheck so you never actually get it in your hands--is often 
  According to one 2013 study, 40 percent of small business owners 
themselves had no retirement savings, 75 percent had no plan to fund 
their own retirement, and of those who are working for employers who 
hire and have 100 or fewer employees, more than 60 percent--62 percent 
of the workers--do not have access to a work-based retirement plan.
  We can imagine the difference between going to work at a job where 
the employer says: Hey, we have a retirement plan. You just need to 
sign this document, and you will be part of it. Please sign up. After a 
few months, if you feel you can't afford to keep setting those funds 
aside, you can change what you are doing. You have that flexibility. 
You can choose between options for different types of investments. But 
it is all right there. It is all very easily accessible. All you have 
to do is do it. The difference between that and a situation where there 
is nothing in the workplace--no benefit in the workplace, no retirement 
structure--is that in that situation it becomes a much more complicated 
  Fifty-five million Americans--nearly half of private sector workers--
work for employers that do not offer any form of workplace retirement 
saving or pension plan. Roughly 45 percent of working-age households, 
half of which are headed by someone between 45 and 65 years old, lack 
any type of retirement account asset.
  So if there is no structure to make it simple to plan for retirement, 
it is more likely that one goes into those golden years without any 
form of gold; that is, without the resources in the bank to back up 
Social Security.
  We know that more than half of the folks who are on Social Security 
depend on it for more than 90 percent of their income. Or, more simply 
stated, for more than half of Americans in retirement, Social Security 
is essentially their only source of support, and it is often not enough 
to maintain even the minimal essentials of life.
  Why is it that so many businesses don't set up a workplace plan? What 

[[Page S2070]]

really boils down to is complexity for the employer. A lot of small 
businesses don't have a human resources person. They don't have an 
extra individual who can do the administrative work to set it up. Maybe 
the plan requires a match, and the employer isn't sure they will be 
able to afford a match. There are all sorts of reasons that this is 
complicated. It is difficult either financially or just in terms of 
additive overhead for a small business. So they don't set up the plan.
  We know that if they had a plan, employers would participate. We know 
that because in States that have plans, the employers participate. In 
addition, the General Accounting Office did a study in 2015 which found 
that the overwhelming majority of workers would participate in an 
employer-sponsored retirement plan if they had the opportunity to do 
  So this brings us to the fact that many States are saying: Let's make 
it easier for employees. There are 30 States that are looking at the 
possibility of the State setting up a retirement plan that wouldn't be 
attached to a single employer, so that an individual could carry it 
with them. For example, imagine that your teenager has their first job 
serving yogurt--one of the jobs that my daughter had--or as a lifeguard 
at a local swimming pool or serving coffee--those first service jobs 
they get. What would happen if, from that first job, 3 percent of their 
income was placed automatically into a retirement account--a retirement 
account that they could control the options of, a retirement account 
where they could increase the amount of their income to go into it if 
they wanted, or a retirement account that they could always opt out of 
if they chose to do so. But if they were automatically enrolled, we 
know the vast majority of individuals stay in the plan. If you go, 
then, automatically from job to job to job--and in our economy that is 
the way it works; people don't sign up with one company and serve there 
for 30 or 40 years--in every job 3 percent was being automatically 
deducted. Then when you actually went into retirement, you would have a 
sizable nest egg to complement Social Security.
  That is what States are looking at. That is what they are pursuing. 
In more than half of the country, States are considering legislation to 
create a retirement savings opportunity for small business employees 
who do not have a work-based plan. Seven States, including my home 
State of Oregon, are already working at implementing these plans. On 
July 1 of this year, Oregon is going to launch its plan with a 
voluntary pilot group, and then it is going to expand to employers with 
10 or more workers in 2018 and finally to all employers in the State in 
  Under this plan, employees who do not have an employer-provided 
savings account will be allowed to save part of their paycheck in their 
own personally managed accounts, and it will be automatically deducted 
unless the employee decides to opt out. Once it expands to all 
employers, 800,000 Oregon workers are expected to have access to a 
State-sponsored retirement savings program. Again, this will be an 
automatic-in, opt-out strategy to make it really simple.

  In Oregon, 95 percent of our businesses are made up of small 
businesses. More than half of our workers are employed by those small 
businesses. So this is a pretty good arrangement to facilitate this 
  Now, here is something that we may not immediately think about. When 
an employee saves for their retirement and is, therefore, financially 
better off in retirement, it reduces the cost of government programs. 
Within the first decade after these plans are established, total State 
spending on Medicaid could drop by $5 billion. In Utah, a recent study 
found that the State would save $3.7 billion for five essential 
government support programs--not just Medicaid--over the course of 15 
  When I first read about Medicaid costs dropping because of a 
retirement plan, I said: How does that work?
  It turns out to be very simple. If you have saved money and are 
financially better off, you are not in a position where you would be in 
the Medicaid Program, thus reducing the number of people who are in it. 
This study found that over 10 years, for the States that are already 
working to implement plans, California would save more than half a 
billion dollars; Maryland would save more than $100 million; 
Connecticut and Oregon, about $60 million a piece; and Illinois, a 
quarter of a billion dollars. So that is just an interesting piece that 
we should be recognizing--that when families do better, not only do 
they do better, but they lower the cost of government programs, which I 
think many folks here, on both sides of the aisle, would say would be a 
terrific thing.
  Then there is this principle of experimentation at the State level. 
Why would we in this Chamber, having failed to provide an automatic-in, 
opt-out opportunity as people move around the country to various jobs, 
having failed to do a Federal version of this, stop our municipalities 
and our States from experimenting to see if this is something that will 
increase the success of our families? Why would we stop a State from 
  Now, I hear all the time here about States' rights. I hear all the 
time about how States are the place for experimentation, to see what 
works and what doesn't work, innovation. Give them the opportunity to 
try things. Well, this Congressional Review Act proposal says the 
opposite. It says: Let's stomp out experiments by our municipalities. 
Let's devastate and decree that you cannot experiment and innovate at 
the State level on a very significant challenge facing America. So 
whether you want families to succeed or whether you simply believe in 
the power of local innovation and opportunity, you should be against 
this proposal.
  What this proposal is about is this: There is a twist in the national 
retirement law known as ERISA that an employer might possibly have 
liability related to an employee signing up for a State-sponsored or a 
municipality-sponsored account. Well, that pretty much puts a wet 
blanket over employers signing up under these State plans or under 
these local plans, because the thought that you might have liability 
for something you have no control over doesn't sound like a good place 
to be. So to correct or clarify this, a regulation was issued and it 
should be obvious why it is right, which is that the employer will not 
have liability over provisions of a State- or municipal-sponsored 
retirement account. They didn't set it up. The employer didn't advocate 
it. The employer is not choosing where the investments go within the 
account. They are not deciding which companies' retirement plans get to 
participate as options or whether there are even company retirement 
plans. The employer is not doing any of that. The employer is simply 
the host. The whole point of the plan is to make it very easy for the 
employer, because that has been the burden in the past of an employer-
by-employer plan. In this case, it is just automatically set up.
  In States like Oregon, they are setting up a pilot project, where 
employers are willing to experiment and be a part of it so they can 
learn from that. Then, they can design a better plan for larger small 
businesses, those that have more than 10 employees. Then, they can make 
it, after having worked the kinks out of it, work for everyone, 
including very small employers. If along the way they run into an 
obstacle, they can pause and work on that.
  This is absolutely the best in policy strategy in America. Give 
municipalities, give States the opportunity to experiment, and on an 
issue that can help families thrive, help our young ones thrive.
  I know that my son and my daughter are going to be better prepared 
for retirement and in a better financial position if, in every job they 
pursue in Oregon, they are automatically saving 3 percent of their 
income--or more if they choose to or less if they opt out. But 
certainly, the vast majority of workers, once in a plan, stay in the 
plan. It is kind of how it is with deductions on your Federal and State 
taxes. When it comes out of your payroll automatically, you get used to 
it, you adjust to it, and you say: Hey, that works.
  So, to my colleagues, please oppose this Congressional Review Act 
proposition that will squash innovation by municipalities, and its 
companion will squash programs by States--programs that are very 
valuable, both for us to understand possible important policies to help 
set a platform for the success of our families, and it is very 

[[Page S2071]]

to the families themselves. Please vote no.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CRAPO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                       Nomination of Neil Gorsuch

  Mr. CRAPO. Madam President, I rise today to speak about the 
President's nomination of Judge Neil Gorsuch to serve as Associate 
Justice of the U.S. Supreme Court.
  Whenever great issues like the future of our Nation's highest Court 
come before the Senate, it is easy to get lost in the noise and the 
hyperbole. Listening to the commentary about Judge Gorsuch, I have 
found it instructive to ask whether critics have actually met him and 
listened to his philosophy of jurisprudence.
  I have met him, and it is easy to guess that those who oppose him 
likely have not spoken to him, watched the hearings, or read any of the 
glowing testimonials from across the political spectrum. The invectives 
thrown at Judge Gorsuch seem really to be about something else 
entirely--about anger at the President, disappointment with the 
election outcome, or concern about holding certain hotly debated topics 
of the day. It appears that critics could substitute almost any name 
for Judge Gorsuch in their statements and give them with the same 
passion and the same concern.
  That is too bad because Judge Gorsuch has been consistently regarded 
by his peers as pragmatic and among the most gifted legal minds on the 
Federal bench. The man is intelligent, courteous, and modest. He seeks 
readily the views of those around him. His approach will be a 
constructive addition to the U.S. Supreme Court and of benefit to our 
Nation. His judicial record as a Federal judge flows exactly from what 
he says, and his message and focus is abundantly clear: judicial 
modesty and fidelity to the law.
  When our representative government was established in the United 
States, a heated debate emerged about the purposes and powers of our 
new Federal institutions. The Founders of our country understood that a 
system in which lawmaking was detached from accountability was the 
quickest path to despotism. A coequal judiciary could help temper 
tyranny and balance the powers of an executive and a legislature 
stepping over their constitutional powers. The phrase is ``checks and 
balances'' not ``usurpation.''
  Alexander Hamilton, who has received much recently renewed attention, 
wrote at length about the newly imagined judicial branch of our 
government. In Federalist 78, Hamilton wrote that the judicial branch 
``may truly be said to have neither force nor will, but merely 
judgment; and must ultimately depend upon the aid of the executive arm 
even for the efficacy of its judgments.''
  To the Founders, the division of responsibilities between the three 
branches of government was clear: Congress would make the laws. The 
executive would implement them. The judiciary would review the laws for 
their legality and consistency with the Constitution. Further, the 
independence of the judiciary would be enhanced through their 
distinctive selection process, so they could do their jobs without 
succumbing to swings in popular opinion. Put succinctly by Chief 
Justice Roberts during his confirmation hearings, a judge's proper role 
is ``to call balls and strikes.''
  In his testimonial to the late Justice Antonin Scalia, Judge Gorsuch 
emphasized the importance of an independent judiciary. He writes:

       Judges should . . . strive to apply the law as it is, 
     focusing backward, not forward, and looking to the text, 
     structure, and history . . . not decide cases on their own 
     moral convictions.

  Judges ``take an oath to uphold'' the Constitution, not ``merely 
consider it.'' It is their duty to follow the law.
  Jurisprudence is not supposed to be the popular arts. Judges are not 
vessels for moral causes. Judge Gorsuch repeats Justice Scalia's words:

       [I]f you're 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're probably doing something wrong.

  Further, Judge Gorsuch states that rulings made in an attempt to 
optimize social utility introduces a question of moral relativism.

       In criminal cases, for example, we often hear arguments 
     from the government that its view would promote public 
     security or finality. Meanwhile, the defense often tells us 
     that its view would promote personal liberty or procedural 
     fairness. How is a judge supposed to weigh or rank these very 
     different social goods?

  The answer lies in the common points of reference for all judges, be 
they conservatives or progressives--the written law. Reading the law is 
difficult enough without introducing the element of uncertainty. Court-
shopping for a pliant judge who will interpret the law the way a 
litigant believes it should read can be destructive to public 
confidence in the legal system.
  In our democracy, the public expresses its will at the ballot box and 
empowers its duly-elected officials with the duty to advance that will. 
Changes in public attitudes can come quickly, and that can be reflected 
in the results of elections.
  Congress is the body most closely connected to the American public 
because its accountability is directly to the people.
  Some observers want judges to be legislators, discarding the black 
robes for populist impulses. But our system of checks and balances is 
predicated on the fact that change comes deliberately and 
incrementally, notwithstanding the wild swings in public mood.
  The pace of change can understandably frustrate. However, 
congressional action is the spirit of the American electorate, 
exercised with its unique combination of majority rule, minority 
rights, and compromise. The imperfect caldron of the legislative 
process is how change happens carefully, purposefully, and properly.
  Unfortunately, impatience can drive people to try to circumvent the 
constitutional power of Congress. The tendency of some to race to a 
courthouse, bypassing the will of the people expressed through 
Congress, to compel change is inherently destabilizing to 
representative government.
  Without a direct say in how policy is decided and without the ability 
to hold people accountable, judges who reimagine the law undermine a 
fundamental cornerstone of representative democracy. Judges have a 
great responsibility to carefully exercise their judicial authority 
within the limits of the law. Judges who exercise independence from 
anchors of our law are dangerous to our liberties. Judge Gorsuch 
demonstrates that he clearly understands this concept when he writes:

       Legislators may appeal to their own moral convictions and 
     to claims to reshape the law as they think it should be in 
     the future. But judges should do none of these things in a 
     democratic society.

  Some jurists treat the Constitution like a speed bump as they hurdle 
down the road reinventing the law. Substituting ideology for the 
written law in jurisprudence is the equivalent of changing the law from 
what it says to what some wish it says.
  Neil Gorsuch identified this very problem when he wrote in 2005 that 
``the courtroom as the place to debate social policy is bad for the 
country and bad for the judiciary. In the legislative arena, especially 
when the country is closely divided, compromises tend to be the rule of 
the day. But when judges rule this or that policy unconstitutional, 
there's little room for compromise: One side must win, the other must 
lose. . . . 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.'' These words reflect a 
clear understanding of the importance of the separation of powers.
  The Federal judiciary should not be a replacement for doing the hard 
work of persuading the public and enacting policy with accountability 
to the electorate.

[[Page S2072]]

  Americans learn civics early in their upbringing. The Constitution 
guarantees certain civil liberties and restrains the powers of the 
central government. Our court system has the responsibility to preserve 
our constitutional rights, ensure a limited government, and provide 
speedy and fair justice when needed. The judiciary holds the sole 
constitutional power to interpret laws properly enacted by Congress. 
This authority is expressly distinct from the power bestowed to the 
legislature to write laws and the executive to enforce them. This 
separation of powers plays an important role in the system of checks 
and balances envisioned by the Founders.

  Public confidence in our legal system is undermined when judges seek 
to reimagine Federal law beyond its clear meaning. Judges who 
substitute their personal views for the law can shake the public's 
faith in our legal system as an impartial protector of our rights and 
an upholder of justice. Judges must follow our Constitution in their 
decisionmaking and resist this temptation to make policy.
  Moreover, without the public sanction of the ballot box, policy 
changes, particularly controversial ones, naturally divide people. If 
the judiciary cannot be seen as a neutral arbiter of facts and laws, 
even more people will see individual judges as ``one of mine'' or ``one 
of yours.''
  The erosion of the humble judiciary began when the Senate 
confirmation process changed. In recent past, district and circuit 
court nominees used to be confirmed noncontroversially. Now, instead of 
looking at the qualifications of the judicial nominee, partisans hope 
to pre-bake court decisions through the use of litmus tests or demands 
on nominees to determine in advance what their rulings will be on cases 
before the matter is even argued to the court. Perhaps this is the 
logical extension of the overreliance on some to secure social gains 
they cannot achieve through the democratic process.
  Change is hard, and patience is exceedingly rare, but the strongest 
building blocks to legitimacy are achieved though consensus and the 
give-and-take of politics.
  Writing even before he was overwhelmingly approved by this body for 
his current seat on the Tenth Circuit, Judge Gorsuch wrote:

       [In courts,] ideas are tested only in the abstract world of 
     legal briefs and lawyers' arguments. 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. At the same time, the 
     politicalization of the judiciary undermines the only real 
     asset it has--its independence. Judges come to be seen as 
     politicians and their confirmations become just an avenue of 
     political warfare. Respect for the role of judges and the 
     legitimacy of the judiciary branch as a whole diminishes.
       The judiciary's diminishing claim to neutrality and 
     independence is exemplified by a recent, historic shift in 
     the Senate's confirmation process. Where trial-court and 
     appeals-court nominees were once routinely confirmed on voice 

  Based on their credentials and their ability to serve--

     they are now routinely subjected to ideological litmus tests, 
     filibusters, and vicious interest-group attacks. It is a 
     warning sign that our judiciary is losing its legitimacy when 
     trial and circuit-court judges are viewed and treated as 
     little more than politicians with robes.

  This development puts a severe strain on our Republic. Particularly 
problematic is the increasing number of split court decisions. Rulings 
that are given with a one-vote margin further empower litigants to 
contest decisions, hoping for a more favorable outcome later or in a 
different court. Setting precedent, though, becomes so much more 
difficult for the public when a razor-thin decision is accompanied by a 
dramatic reinterpretation of the law.
  One of the hallmarks of the Roberts Court is the drive to establish 
precedent not by finding the narrowest reading that can achieve a bare 
majority but its endeavor to ground seminal decisions in large 
majorities and unanimous findings. Public confidence in the legal 
system and the finality of the holding is ever greater when we do not 
see narrow decisions.
  The Judiciary Committee just concluded a 4-day review of the 
nomination of Judge Gorsuch. In addition to hearing from Judge Gorsuch 
for over 20 hours, the committee received formal testimony from almost 
30 outside witnesses. Thousands upon thousands of words were exchanged 
over the course of the hearing, all in front of the American public. 
What the people saw is a thoughtful, humble, and brilliant legal mind 
in the service of the people.
  In response to a question of mine on Tuesday, Judge Gorsuch said the 

       I come here with no agenda but one, no promises but one: to 
     be as good and faithful a judge as I know how to be. That is 
     it. And I cannot promise or agree or pledge anything more 
     than that to this Congress.

  That statement and the hearing as a whole confirmed Judge Gorsuch to 
be a man of great integrity, a mainstream, exemplary student of the law 
whose record shows that he is a part of unanimous decisions. On the 
Tenth Circuit, of all the decisions he has participated in in the last 
10 years, 97 percent of the time, he was a part of a unanimous court, 
and 99 percent of the time, he was in the majority.
  For days, my colleagues from the other side of the aisle raised the 
possibility that he might have secret intentions to try to subvert the 
law or shred the Constitution from the bench. They parsed single words 
for hidden meanings, imagined devious strategies emerging from 
concurring opinions, and searched for cloaked messages in his published 
  Judge Gorsuch has over 10 years as a jurist, with 2,700 opinions to 
review; yet most of the debate was centered on just 4 or 5 cases. Some 
Senators were absolutely convinced they would find some problem. They 
did not.
  Let's talk about what Judge Gorsuch testified to under oath. Despite 
repeated efforts to get him to make commitments about how he would rule 
or how he would reshape social policy, on his first day, he gave no 
fewer than eight assurances that he follows the law as a judge. By my 
count, on the second day, he gave at least 36 assurances that he looks 
to the law for his rulings. On the third day, it was 29 more times that 
he was asked and again repeated that he would look to the law for his 
rulings. That is right. He said at least 73 times that he is committed 
to the law when he hears a case as a sitting Federal judge. Still, 
several of my colleagues worried that he had a secret agenda to 
overturn longstanding legal precedence.
  Just in case there are some confused, Judge Gorsuch mentioned no 
fewer than 97 times in these 3 days that he follows precedent as a 
judge, as he is bound to do. More than 160 times, Judge Gorsuch 
reminded the Senate and the American public what a proper jurist does: 
follows the law and the precedent. We even talked about the book he 
coauthored titled ``The Law of Judicial Precedent''--942 pages of 
dedication to following precedent. Maybe the title of the book was 
confusing to some.

  During his oral testimony, he said he was dedicated to ``rul[ing] as 
the law requires,'' ``reading the language of the statute as a 
`reasonable person' would understand it,'' and ``respect[ing] 
  Just to put all such questions to rest, he assured everyone that he 
is ``without secret agenda. None.''
  In reviewing his record, it is clear that those who come before Judge 
Gorsuch receive equal treatment under the law. He said:

       When I sit on the bench and someone comes to argue before 
     me, I treat each one of them equally. They do not come as 
     rich or poor, big guy or little guy. They come as a person. 
     And I put my ego aside when I put on that robe, and I open my 
     mind, and I open my heart, and I listen.

  In Judge Gorsuch, we have a nominee who lives the American ideal of a 
modest jurist. He understands that his responsibility is not to suborn 
the powers of others but to help deliver the powers of justice.
  Those who have encountered him as a legal advocate, an adversary in 
court, or a presiding judge all praise his fundamental fairness and 
subornation of his personal views.
  His respect for the Constitution is not in question. His experience, 
wisdom, and judgment are not in question. His capability to serve is 
not in question. Commentators from both the left and the right 
overwhelmingly respect his legal mind and vouch for his commitment to 
fair jurisprudence.
  Given Judge Gorsuch's judicial philosophy and his record as a judge, 

[[Page S2073]]

would be a welcome addition to a Supreme Court seeking cohesive 
decisions. His record on the Tenth Circuit is strong. Five of six of 
his decisions that did go to the Supreme Court for a review have been 
affirmed by the Supreme Court, including one which he wrote, and four 
out of five on which he joined the decision.
  Not many judges have the experience, temperament, and stellar record 
to match Judge Gorsuch. Fewer still can garner overwhelming endorsement 
from colleagues, peers, and observers from across the political 
  Some may try to distract from the central point that Judge Gorsuch is 
extraordinarily qualified and suited to serve as an Associate Justice. 
Others would like to discuss other issues or make his nomination a 
proxy fight about tangential matters. My colleagues and I will vote on 
his nomination, not on these other issues or distractions. I encourage 
all of us to remember that.
  The Senate should be proud to add Judge Neil Gorsuch to the Supreme 
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. PORTMAN. Madam President, I would like to thank my colleague for 
his good comments regarding Neil Gorsuch.
  I rise today to strongly support Neil Gorsuch for the U.S. Supreme 
  First, there is no question that Judge Gorsuch is qualified for this 
job. He served as a law clerk for two Supreme Court Justices, Justice 
Byron White and Justice Anthony Kennedy. He has also had a 
distinguished career in the public sector and in the private sector. 
Finally, of course, he worked in the Office of the Attorney General. He 
worked in the Justice Department, and he had a great reputation there 
as well.
  Of course, in 2006, not that long ago, he came to the floor of the 
Senate to be confirmed to the Tenth Circuit. And guess what. He was 
unanimously confirmed by this body. In fact, at the time, Senator 
Hillary Clinton voted to confirm him. Senator Joe Biden voted to 
confirm him. Senator Barack Obama voted to confirm him, and, by the 
way, so did a number of Democrats who are currently serving in the 
Senate. Not a single Senator objected. Why? Because the guy is so well 
  Since then, in his 10 years on the Tenth Circuit Court, his record 
has shown that he is fair, he is independent, and he is a consensus 
builder, which only ratified what the Senate had done. It showed that, 
in fact, he was the kind of person who represents us well in court.
  By the way, he is also a guy who knows how to find common ground. 
Listen to these numbers: 97 percent of the cases he has decided were 
unanimous decisions with the other two judges on the panel. Typically, 
as you know, these are judges who have been appointed by Presidents who 
are Republican and Democrat. Finally, he has been in dissent less than 
2 percent of the time. So this is a guy who 97 percent of the time is 
unanimous, and 2 percent of the time he is in dissent. Out of the more 
than 180 opinions he has written as a judge--180 opinions--only one had 
ever been appealed to the U.S. Supreme Court from the circuit court, 
and, by the way, that one was affirmed.
  So this is a guy who clearly knows how to build a consensus, bring 
people together, and that is needed right now. It is needed in this 
body. It is needed in our country as a whole, and it is certainly 
needed in the judiciary.
  By the way, it doesn't surprise me that he is a consensus builder. If 
you think about it, he was a law clerk for Justice Byron White and 
Justice Anthony Kennedy. They are both known famously as being 
consensus builders and being able to bring together disparate decisions 
to try to find a decision at the Supreme Court level. So he has seen it 
up close and personal. He knows how to do it.
  I would say, though, in terms of this debate we are having, it is not 
just about Neil Gorsuch and it is not just about another seat, as 
important as it is, on the U.S. Supreme Court. It is also an 
opportunity, by voting for Neil Gorsuch, to ensure that we have 
reestablished the proper role of this body, of the legislative branch 
and of the judicial branch in our system of government.
  Judge Gorsuch understands that his job as a judge is not to impose 
his views on people but rather to apply the law, as written--to apply 
the law as written. That is kind of a basic part of our Constitution.
  He put it well in his testimony before the Senate Judiciary 
Committee. He said: ``A judge who likes every outcome he reaches is 
very likely a bad judge.'' What does he mean by that? I think what he 
meant is that he doesn't believe in substituting his personal views for 
what he is supposed to do as a judge.
  So you may not like the decision, but you are constrained by the 
Constitution, by the law, and that is what judges should do.
  He went on to say that the job of a judge is ``not about politics. . 
. . If judges were just secret legislators, declaring not what the law 
is but what they would like it to be, the very idea of a government by 
the people and for the people would be at risk.''
  I think he is right about that. It is not about what he wants. It is 
what the Constitution and the law say. Judges should not legislate from 
the bench. That is not their job.
  Judge Gorsuch and I met recently, and he has met, I think, with about 
80 of my 100 colleagues in the Senate, and he has talked to them about 
his views privately. I was very impressed with him. I was impressed 
with him as a person, his background, and his family. I was impressed 
with his approach.
  I was talking about what he said that he is not going to substitute 
his own personal views. He basically said to me what he said in public. 
He is going to uphold the law, as written, even if his personal beliefs 
had led him to vote against the law if he had been in my position, as a 
legislator. I think that is what you want in a court.
  But don't take my word for it. Judge Gorsuch also has earned the 
respect of lawyers and judges across the spectrum. Professor Laurence 
Tribe of Harvard Law School, who was an adviser to former President 
Obama and to previous Democratic Presidents, has said that Judge 
Gorsuch is ``a brilliant, terrific guy who would do the Court's work 
with distinction.'' That is Laurence Tribe.
  Neal Katyal, who was President Obama's Acting Solicitor General--so a 
guy who knows a thing or two about arguing before the Supreme Court, 
because that is what the Solicitor General does with a lot of his 
time--has said that Judge Gorsuch's record ``should give the American 
people confidence that he will not compromise principle to favor the 
president who appointed him. . . . He's a fair and decent man.'' Again, 
this is the Acting Solicitor General for President Obama.
  Yes, this debate is about something bigger than that, even. It is 
about Neil Gorsuch. It is about his character, his experience, and his 
judgments, but it is also about something I think even more 
important than this division of powers in our Constitution. It is about 
the rule of law itself. What does it mean?

  Why does that matter? It matters because laws are an expression of 
the will of the people. The Constitution itself starts out with this 
idea, of course: ``We the people . . . establish this Constitution''--
not ``we the Congress'' or ``we the government.'' It is we the people 
who govern ourselves. The government is the servant of the people under 
our Constitution, not the other way around.
  When judges try to change the law rather than apply the law, they 
make themselves into an unelected legislative body. That is not just 
arrogant, by the way. I think that is unfair. Not because it steals 
legitimate authority from us, the elected representatives in Congress, 
but because it steals that authority and silences the voices of the 
people who elected us. Ultimately, that is what this is all about.
  In this Republic, Congress writes the laws, the President ensures 
that the laws are faithfully executed, and the courts apply the law and 
our Constitution to specific cases that come before them. That is how 
it should work. That is how our Founders intended it.
  I think it is more important now than ever to have a Supreme Court 
that understands this role and resists the urge to act as a 
  In recent decades, the Court has been increasingly asked to decide a 
lot of important matters that affect us all. Think about it. 
Healthcare, or the Affordable Care Act is an example, and

[[Page S2074]]

immigration, energy and environmental policies, social policies, First 
Amendment rights to free speech, freedom of religion, Second Amendment 
rights, and a hundred other issues. The Court affects all of our lives 
in ways that are fundamental, and rulings by the Court, of course, 
cannot be appealed to a higher court. All you can do is change the law. 
On constitutional provisions, you can't even do that.
  At the same time as the scope of judicial power has expanded and as 
the significance of the Supreme Court's rulings has increased, there 
are some judges who have essentially rewritten statutes that did not 
suit them. They have taken the law and said: We are going to rewrite 
this in a way that we think works better. That is not their job.
  One example I would give you is that a couple of years ago, the 
Supreme Court ruled, for example, that the words ``established by a 
state''--this was in the Affordable Care Act--could also mean ``not 
established by a state.'' I mean, literally, the Court said that, and 
that ``legislature'' could also mean a popular referendum. So they took 
the very words of a statute and said: We don't like the way that is 
written. We are going to change these words, and we are going to 
adjudicate this matter based on our understanding of these words, which 
is based on our personal opinion.
  I don't think these rulings made sense logically but, more 
importantly, they changed the law, as written by the people and the 
people's Representatives.
  So the stakes are high here. We have to get this right. There are 
people who make the argument that the Constitution is such a living 
document, whose meaning evolves as popular opinion evolves, that we 
should make judges into basically pollsters or superlegislators. I 
don't think that makes sense. But, more importantly, I don't think it 
is fair, and it is one reason why so many people have felt like their 
voices aren't being heard, I believe, when the courts do that.
  Again, Neil Gorsuch gets it. As he said in his testimony recently, 
his philosophy ``is to strive to understand what the words on the page 
mean . . . [to] apply what the people's representatives, the lawmakers, 
have done.''
  This should be what we all want in a Supreme Court justice--someone 
who will fairly and impartially apply the law and protect the rights we 
have guaranteed by our Constitution.
  To my colleagues on the other side of the aisle, I would make a plea 
today: I would say that in this regard, I would think Judge Gorsuch is 
exactly the kind of Justice that you would like, someone who is 
actually going to apply the laws that you write--that we write--and not 
impose his personal views.
  The American Bar Association--not known as a conservative body--has 
unanimously declared Judge Gorsuch ``well qualified'' for this job. 
That is their highest rating--``well qualified.'' That is what they 
have given him. The ABA has noted that ``based on the writings, 
interviews, and analyses we scrutinized to reach our rating, we 
discerned that Judge Gorsuch believes strongly in the independence of 
the judicial branch of government, and we predict that he will be a 
strong but respectful voice in protecting it,'' meaning the 
independence of the judicial branch. That is pretty strong from the 
American Bar Association.
  By the way, despite these accolades he has gotten and his respect for 
the lawmaking that so many of us do here in this body, some of my 
colleagues on the other side may decide to vote against Judge Gorsuch, 
and they certainly have a right to do that. Of course, they do. But 
let's at least give him a vote. Let's give him an up-or-down vote. He 
deserves that. If a nominee this qualified can't get an up-or-down vote 
on the Senate floor, it is not clear to me who could.
  Some have argued recently that the standard for a Supreme Court 
Justice should be 60 votes in the Senate--not an up-or-down vote, not 
51 votes or a simple majority. The Washington Post has looked at that 
recently, and the Washington Post gave the notion that it should be 60 
votes three Pinocchios--that means the guy whose nose gets longer when 
he is not telling the truth. Here is what the Washington Post said: 
``There is no `traditional' 60-vote `standard' or `rule' for Supreme 
Court nominations, no matter how much or how often Democrats claim 
  That is the Washington Post.
  In fact, as you probably know, two sitting Justices on the Supreme 
Court right now were actually confirmed by this body with less than 60 
votes. Justice Thomas, a very controversial nomination at the time, was 
confirmed 52 to 48--hardly a tradition of confirming with 60 votes. 
Justice Alito was confirmed 58 to 42 only 10 years ago. In fact, as we 
have heard on this floor, there has never been a successful filibuster 
of a Supreme Court Justice in the history of this body. That is hardly 
the standard. So I urge my colleagues to give him a vote, and I hope 
the result will be the confirmation of this smart, mainstream, decent 
man who is so well qualified for the Supreme Court and who has made it 
clear, again, that he is not going to impose his personal beliefs on 
the rest of us but will apply the law as written, and he is going to 
adhere to the U.S. Constitution. That is the kind of judge who deserves 
the support of all of us.
  Thank you.
  I yield back my time.
  The PRESIDING OFFICER (Mr. Tillis). The Senator from Colorado.
  (The remarks of Mr. Bennet pertaining to the introduction of S. 767 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. BENNET. I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.

                             Yucca Mountain

  Mr. HELLER. Mr. President, I appreciate the comments my colleague 
from Colorado has made on energy. I have an energy speech here, also. 
We have the same goals, maybe coming from different perspectives, but 
both the Senator from Colorado and I are trying to achieve the same 
  I appreciate his hard work. He and I have worked well together over 
the years on the Finance Committee, as he mentioned, with the 
investment tax credits to make alternative energy viable products and 
industries in both of our States and across this country, so I 
appreciate his hard work.
  Mr. President, I come to the floor of the U.S. Senate today to 
discuss an issue that is extremely important to the State of Nevada, 
and that is Yucca Mountain.
  For over 30 years, those two words, ``Yucca Mountain,'' have incited 
frustration and anger for Nevadans across my State. It is not just a 
mountain 90 miles northwest of Las Vegas; it represents a decade-long 
fight by some in Washington to ``wrong Nevada.''
  In 1982, the Congress approved the Nuclear Waste Policy Act and 
charged the Department of Energy with finding a long-term storage site 
for the disposal of spent nuclear material. At the time, Yucca Mountain 
was one of the many proposed geological sites to investigate.
  Unfortunately, in 1987, the act was amended to concentrate only on 
one place, Yucca Mountain. Nevada, a State without any nuclear 
powerplants, was legally compelled to bear the sole burden of long-term 
storage of all of the Nation's nuclear waste. This decision was made on 
bad politics; it was not made on sound science. Ever since, the debate 
on solutions to this problem has been one-sided, and the study of 
alternative solutions has been curtailed.
  Instead of honoring Nevada's persistent scientific and procedural 
objections to the repository, the Federal Government has spent decades 
of time and wasted billions of dollars to design and permit Yucca 
Mountain, all without any notion that Nevada would consent to the 
  I have spent the past decade in Congress successfully fighting off 
efforts to force this project on Nevada, and I will continue this fight 
for as long as I serve my State.
  I want to be clear: Nuclear power is an important part of our 
Nation's energy portfolio. I am one of the most outspoken Republicans 
in Congress advocating to make our Nation's energy cleaner and more 
affordable. Nuclear energy, which represents about 20 percent of our 
Nation's power production, plays an important role in providing carbon 
emission-free baseload energy in many States, but Nevada--again, a 
State without a nuclear powerplant--should not have to shoulder the 
Nation's entire waste burden.

[[Page S2075]]

  We have pursued other strategies to meet Nevada's energy needs. I can 
share a couple of those examples with you. More than two-thirds of 
Nevada's energy is produced by natural gas-fired powerplants. Just 2 
weeks ago, I was at a groundbreaking at the Moapa Southern Paiute Solar 
Project, the first-ever utility scale powerplant to be built on Tribal 
land. This project will produce 250 megawatts of clean energy capable 
of generating enough clean energy to power an estimated 111,000 homes.
  Last March, I joined with the Italian Prime Minister in celebrating 
the world's first combined solar-geothermal plant near Fallon, NV. This 
facility provides 26 megawatts of solar photovoltaic, 2 megawatts of 
solar thermal, and 33 megawatts of geothermal energy to Nevada 
  Nearly half of the geothermal plants producing baseload clean energy 
in this country are located in Nevada alone. So overall, more than 
2,000 megawatts of utility-scale renewable energy in Nevada, enough to 
power nearly 1 million homes, has been built to meet Nevada's needs. 
That includes 19 geothermal energy plants, 12 solar projects, 6 hydro 
facilities, 4 biomass or methane projects, 1 large wind farm, and 1 
energy recovery station. These are just some of the examples we are 
doing in Nevada. Yet they continue to try to ram Yucca Mountain down 
our throats as if we are not doing enough.

  As we examine viable solutions to the waste problem, it is important 
to note that there are some promising technological developments that 
could fundamentally change the Nation's waste storage needs. There are 
new reactor technologies that could repurpose previously generated 
spent fuel and produce carbon-free electricity with little or no waste. 
International research and development on innovative storage solutions 
and recycling processes could also be part of that solution.
  Given the Yucca-centric strategy's previous failures, it would be 
logical for the government to try something new--some of these 
strategies that show promise--but, no, not here in Washington. 
Washington is at it again. Apparently, nearly 30 years of wasted time 
and billions of squandered taxpayer dollars is, simply, not enough.
  The Department of Energy recently submitted what they call a skinny 
budget, including $120 million, in part, to restart licensing 
activities for the Yucca Mountain nuclear waste repository. That $120 
million is a lot of money in itself, but let's be clear that it is just 
a fraction of the true costs.
  Nevada has made it clear that it will contest each and every one of 
the 200-plus elements of any license application. State and Federal 
officials have estimated that the licensing process for Yucca Mountain 
will take 4 to 5 years and cost in excess of $1.6 billion.
  In these difficult times, I ask my colleagues: Is it financially 
prudent to invest over $1.6 billion in any program that has not yielded 
results in over 30 years?
  In case there is any confusion, I want to make sure everybody 
understands that Nevada's position has not changed and that it is not 
going to change on this issue. Our Governor, Brian Sandoval, continues 
to strongly oppose the project. In fact, he shares my same sentiment, 
and he shared it with me a few weeks ago when he stated:

       I will vigorously fight the storage of high-level nuclear 
     waste in Nevada. Any attempt to resurrect this ill-conceived 
     project will be met with relentless opposition and maximum 

  Every serious presumed candidate for Governor in 2018--both 
Republicans and Democrats--strongly opposes Yucca Mountain. Nevada's 
attorney general, Adam Laxalt, recently requested $7.2 million of State 
resources over the next 2 years to represent the State's interests in 
the licensing process over Yucca Mountain, which he called ``a poster 
child of federal overreach.'' Soon, our legislature will reaffirm the 
State's opposition to the project with the passage of Assembly Joint 
Resolution No. 10.
  To sum it up, it will cost at least $1.6 billion just to get through 
the application process. Think about that. It will take $1.6 billion 
just to get through the process, to get the applications ready, let 
alone to get the storage facility actually operational.
  Make no mistake about it. I will continue to lead the Nevada 
congressional delegation's effort to stymie any misguided effort to 
spend one more Federal dollar on the Yucca Mountain repository. It is 
fiscally irresponsible and, simply, will not solve this important 
public policy issue that faces our Nation.
  I implore my colleagues to work with me in a pragmatic way to solve 
our Nation's spent nuclear fuel and defense high-level waste storage 
problem that we have.
  There is an old adage, and we have all heard it: The definition of 
doing the same thing over and over again and expecting different 
results is called insanity. Efforts by the executive branch and some 
Members of Congress to direct billions more toward a repository that 
will never be built is just that--insanity.
  Our Nation cannot fully move forward with viable solutions until 
Congress moves past Yucca Mountain. Last year, the Department of Energy 
began a consent-based siting initiative to find alternative storage and 
disposal facilities. Identifying communities that are willing to be 
hosts for long-term repositories, rather than forcing them upon States 
that have outright opposed such sites for decades, is the only 
sustainable path forward.
  I wholeheartedly support these efforts. In fact, I introduced 
bipartisan legislation earlier this year, the Nuclear Waste Informed 
Consent Act, to codify it into law. This strategy was wisely 
recommended by the Blue Ribbon Commission on America's Nuclear Future--
a 15-member, bipartisan group that is tasked by the Federal Government 
to develop feasible solutions to nuclear waste disposal. This type of 
open process ensures all Americans have a meaningful voice in the 
process if their communities are being considered for a future nuclear 
waste repository.
  I am confident that the government can find safe sites through the 
careful consideration of all alternatives that are based on credible 
scientific information and not by politicians here in Washington, DC. 
Let's stop the insanity. The administration and congressional Yucca 
advocates should focus their efforts on practical solutions and not on 
more of the same.
  First, let's advance innovative energy technologies that repurpose 
and reduce spent fuel.
  Second, let's invest in the research and development of recycling and 
alternative storage methods.
  Third and most importantly, let's identify safe and viable 
alternatives for the storage of nuclear waste that remains in areas 
that are willing to house it.
  These are worthwhile initiatives that actually, to use a football 
analogy, ``move the ball down the field.'' For far too long, our Nation 
has been going ``three and out'' because Washington keeps trying to run 
the same, stale game plan.
  I am working diligently on feasible solutions to this important 
problem, and I urge my colleagues here today, on the floor of the U.S. 
Senate, to join me in that fight. I stand here, ready to work for what 
is best for my State and what is best for our Nation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I am deeply frustrated that Republicans, 
in one of their first actions following their and President Trump's 
disastrous attempts to repeal the Affordable Care Act, have decided to 
bring to the floor yet another CRA that would hurt workers, hurt the 
middle class, and hurt our economy.
  Last week, millions of families sent a very clear message to 
President Trump and Republicans: Enough with the attempts to turn back 
the clock on progress for working families.
  Clearly, President Trump and Republicans are not getting the message 
because, today, in what can only be described as a truly shameless 
giveaway to Wall Street, Republicans are poised to roll back a rule 
that would, simply, allow cities to help small businesses provide their 
workers access to easy, affordable, and high-quality retirement savings 
  Before I continue, I want to reiterate what is at stake if 
Republicans roll back this rule. If Republicans pass this anti-worker 
resolution that is on the floor today, over 2 million workers in 
Philadelphia, in New York City, and in

[[Page S2076]]

Seattle--in my home State of Washington--will lose the opportunity to 
access a retirement savings program.
  I expect my Republican colleagues to make several claims as to why 
they are pushing to repeal this rule, but I want to be very clear that 
this is a deliberate attempt by Republicans to deny millions of workers 
the opportunity to save for retirement just to ensure that Wall Street 
remains in charge of our retirement system and can continue to write 
its own rules.
  The 2 million workers who are at risk today in these three cities are 
part of the nearly 55 million workers across the country, which include 
2 million workers in my home State of Washington, who do not have 
access to a workplace retirement plan through their employers. That is 
about one-third of all of the workers in our country. These are 
workers--particularly low-income and young workers--who are putting in 
long hours, meeting all of their responsibilities, but who lack access 
to an employer-sponsored retirement plan.
  Because Congress has been unable to come together to address our 
retirement savings crisis, cities and States have now stepped up to 
help more workers save for their own retirements. These programs vary, 
but they all generally include several things.
  First of all, they allow employers to automatically enroll workers 
while giving workers the opportunity to opt out. Several studies have 
made clear that, when workers are automatically enrolled, they are more 
likely to save simply because it is easier to save. We all want that, 
and that is a fact.
  Secondly, these programs apply only to businesses that do not 
currently offer retirement plans, and they, in no way, limit an 
employer's ability to seek out and offer its own employer-sponsored 
  Lastly, these programs are worker and business friendly. There is 
little paperwork required for workers to participate in the programs, 
and there are no added burdens to the small businesses. In fact, in 
these programs, employers are strictly required to serve only in an 
administrative capacity.
  Last year, Democrats, in their working with the previous 
administration, pushed for guidance to provide certainty to cities and 
States that have launched their own retirement programs.
  This guidance clarifies an existing safe harbor that allows employers 
to establish payroll deduction IRAs, which gives States the clarity 
that these programs will not be preempted by Federal retirement law 
while still retaining the protections under the Internal Revenue Code. 
These retirement programs are safe; they are secure. This guidance 
merely provides flexibility to cities and States to move forward with 
these programs. Again, this guidance provides clarity for small 
businesses, which facilitate these programs for their employees, in 
that they may only act in an administrative capacity in operating these 
  I think we all know what this repeal is truly about. President Trump 
is committed to doing everything he can to put the interests of Wall 
Street first. Unfortunately, with this action, Republicans in Congress 
are helping him do that.
  It does not seem to matter if Republicans need to vote against 
policies they are on the record as having previously supported, like 
these retirement programs. Apparently, it does not matter if they need 
to vote to undermine our States' rights, as this resolution will do. It 
is becoming increasingly clear, without having a legislative agenda of 
their own, that Republicans are working to undo any and all rules and 
protections that had been put forth by the Obama administration.
  It is not working. It is not leadership. It is not the kind of 
leadership our families deserve. After last week, I had hoped that 
President Trump and the Republicans would have dropped their extreme 
anti-worker agenda. Families nationwide are sending a clear message in 
marches and phone calls and letters and online and in their 
communities. They expect their representatives to be committed to 
working for them, and they are paying close attention--more than ever 
before--and are prepared to hold Members accountable.
  This CRA is a critical vote. Families are watching. If you stand with 
working families, vote against this resolution. If you say you believe 
in States' rights, vote against this resolution. If you want to 
meaningfully address our retirement crisis, vote against this 
  I am here to urge all of our colleagues to reject this harmful repeal 
and to stand with our working families. That is what is at stake.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.

                   Filling the Supreme Court Vacancy

  Mr. MERKLEY. Mr. President, the most important words in our 
Constitution are the first three words. Our Founders made sure that, 
when the Constitution was written, those were displayed--``We the 
People''--in super-sized font so that, generations later, we would not 
forget what our Constitution is all about.
  Our Constitution was not crafted to create a government that would 
make decisions by and for the powerful. It was not crafted to create a 
government that would make decisions by and for the privileged. That 
was the power of the ``we the people'' vision, as President Lincoln so 
eloquently stated, ``a government of, by, and for the people.'' Well, 
that is the vision we have the responsibility of maintaining, and it is 
a vision that is facing a dramatic test in this coming week--a test 
that affects the integrity of this body, a test that affects the 
integrity of the Supreme Court.

  Back in January of last year, a Supreme Court seat came open. A 
Supreme Court seat for which the President had a responsibility to 
nominate a replacement, a new Justice to serve on the Court. We here in 
the Senate had a responsibility--a responsibility to exercise advice 
and consent. That meant that we would vet the nominee, that we would 
research, have a committee hearing, have a committee vote, and then 
forward it to the floor, where we would have a floor debate. But for 
the very first time in the history of the United States of America, the 
majority party decided that they would not exercise their 
constitutional responsibility, that they would instead steal this seat 
from the Obama administration, wrap it up, pack it into a time capsule, 
and send it into the future, in hopes that they would be able to 
succeed in packing the Court by having a different President, a more 
conservative President, proceed to fill the vacancy.
  I am going to go through the 16 cases in our history where there has 
been a vacancy during an election year, and in 15 cases, the Senate 
acted. But last year, this Chamber refused to act, for the first time, 
in trying to exercise a seat-stealing, Court-packing scheme, and that 
diabolical act against our Constitution will have its final chapter of 
discussion next week. I think it is important that the Members of the 
Senate understand the history of the United States of America and the 
setting in which this debate is going to occur.
  If you read the Constitution from start to finish, nowhere does it 
say that the Senate has the option of refusing to consider a Supreme 
Court nominee in the final year of a Presidency. This strategy was 
announced within hours of Judge Scalia dying. And why would the 
majority choose to reject their responsibility under their oath of 
office? Why would they choose to do that? Certainly it wasn't because 
Merrick Garland wasn't qualified. He hadn't been nominated yet. 
Certainly it wasn't because there was a precedent because there was no 
precedent in U.S. history for stealing a Supreme Court seat.
  Here is what transpired. The majority said: This might be a nominee 
who will fight for the ``we the people'' vision of our Constitution, 
and we don't want that because we are committed to a different vision--
a vision of government by and for the most powerful people in the 
United States of America--and we want to make sure that the Court has a 
5-to-4 majority to keep turning the Constitution on its head, 
destroying the vision that this Constitution, our Constitution, was 
designed for.
  Well, the President proceeded to carry out his responsibility despite 
the fact that the majority said: We are not going to consider your 
nomination because we are not going to honor our responsibilities under 
the Constitution.

[[Page S2077]]

Despite that, the President said he would honor his responsibility, and 
he nominated Merrick Garland on March 16.
  The story here in the Chamber was that if he was on this floor, he 
would have plenty of votes, far more than 60 votes to be confirmed. So 
that kind of hardened the opposition, because there were more than 60 
Senators who were going to say: Yes, let's embrace this mainstream 
judge who wants to fight for our ``we the people'' Constitution. But 
the leadership said no.
  What have we seen unfold over the last few years of dark money ruling 
American campaigns? In 2014, we saw the Koch brothers decide that they 
wanted to control this Chamber, so they said: We are going to spend 
vast sums to elect a majority that will respond to our perspective as 
billionaires, coal and oil billionaires, kind of like a government by 
and for the powerful.
  So they spent huge sums of money in Arkansas and in Louisiana and in 
North Carolina and in Iowa and in Colorado and in Alaska and in my home 
State of Oregon, and they won most of those States. Suddenly, there was 
the majority they had hoped for.
  Then they sent a warning message to the Republican leadership in the 
form of this: In January 2015, the Koch brothers said: Pay attention 
because we plan to spend nearly $1 billion in the next election, 2 
years from now, and if you cross us, you might know the consequences 
because we can spend money in primaries as well as in general 
  That is the background on how the Senate majority decided to steal 
this seat for the first time in U.S. history.
  Just to make sure we are checking all of our facts on this, let's 
take a look at those various vacancies. As I mentioned, there have been 
16 in our history. In one group of nominations, those vacancies 
occurred after the election, so there was very little time for the 
Senate to act.
  Nominee John Jay--President John Adams--was nominated on December 18. 
At that point in time, the new President took office in March, so there 
wasn't very much time, but nonetheless the Senate acted and confirmed 
the nominee, and, in kind of an interesting twist of fate, the nominee 
turned down the post.
  When Ward Hunt was nominated by Ulysses Grant in December of 1872--
again, just a couple of months before the next President would come 
in--the Senate acted.
  Let's take a look at William Woods. The nominee from President 
Rutherford Hayes was also nominated in December of that year, just 
months before the new President would come in, but nevertheless the 
Senate acted.
  In all three cases, they confirmed the nominee within that short 
period of time. They debated. They vetted. They acted. They fulfilled 
their responsibility under the Constitution.
  Now there is another group of nominees in an election year where the 
vacancy occurred before the election, but the nominee was nominated 
after the election, and there are four in that group. We have President 
John Quincy Adams, who nominated John Crittenden. The day he nominated 
him was in December of 1828--again, just a few months before the new 
President would take office--and in that case, it was proceeded to be 
acted on by the Senate. The Senate chose to postpone the action, but 
they acted. They took a vote. They decided.

  There was Jeremiah Black, the nominee, in February 1861. There was a 
motion to proceed. The Senate voted, and they rejected it.
  Then we have a nominee from Abraham Lincoln in 1864, and that 
nomination was confirmed.
  Finally, under President Dwight Eisenhower, there was William 
Brennan, and that nomination was confirmed as well.
  In all of these cases, even though the nomination occurred after the 
election and there was little time, the Senate acted.
  There is a set of nine more nominations that occurred in an election 
year, and these are cases where both the vacancy occurred before the 
election and the nomination occurred before the election.
  Nominee William Johnson under Thomas Jefferson. Final result: The 
Senate acted. They confirmed.
  Edward King under President John Tyler. The Senate acted. They 
rejected that nomination, but they acted. They tabled it.
  Edward Bradford under Millard Fillmore. They proceeded to again 
reject the nomination, but the Senate acted.
  Melville Fuller--nominee under Grover Cleveland--was confirmed. And 
realize this was in May of that year.
  George Shiras under Benjamin Harrison. He was confirmed. That 
happened in July that the nomination occurred.
  Brandeis under Woodrow Wilson. He was nominated in January. 
  John Clarke, also Under Woodrow Wilson. Nominated in July. Confirmed.
  All of these were before the election in a parallel case to the 
situation with Justice Scalia passing away and a nomination in the 
election year.
  Benjamin Cardozo was nominated by Herbert Hoover. He was confirmed.
  So there we have 16 cases--actually, I have only mentioned 15 so 
far--15 cases in our history in an election year, and in each and every 
case, the Senate acted--in each and every case except for the tragedy, 
the desecration of the Senate process that occurred last year.
  Merrick Garland was nominated by Barack Obama in February. No action. 
The first no action in U.S. history. The first stolen seat in U.S. 
  Let's understand that this is politics out of control when Senators 
would ignore their oath of office, would proceed to engage in a Court-
packing scheme and steal a Supreme Court seat. This is politics 
completely unhinged. This is driven by the dark money of the Koch 
brothers. This is the powerful, behind-the-scenes puppet master telling 
the Senate what to do because they cannot afford to have a Justice who 
hadn't been appropriately vetted by conservative think tanks to make 
sure how they will vote on Citizens United possibly get on the Supreme 
Court. Nobody knew how Merrick Garland would vote on Citizens United. 
On the Democratic side, we worried that he might sustain it. On the 
Republican side, they worried that he might strike it down and be a 
``we the people'' Justice. But instead of engaging in responsible 
Senate action required by our oath of office, for the first time in 
U.S. history, the majority, driven by a powerful special interest, the 
Koch brothers, decided to steal the seat.
  So that is the setting in which next week's debate will occur. We 
have heard some very self-righteous words coming from the majority side 
saying: Look how qualified he is. How could you possibly say there is 
anything wrong with this nomination?
  Well, I asked my fellow colleagues to realize the reality of what 
they are engaged in, that they had a responsibility and that every 
Senate majority in U.S. history exercised that responsibility until 
last year. And it corresponds to this enormous growth of dark, secret 
money under Citizens United entering our campaigns. It corresponds to 
the threat that the Koch brothers made in January of 2015 that they 
were going to spend nearly $1 billion in the 2016 election.
  One of our Republican colleagues said he thought the Senate should do 
their job. He thought we should hold a debate, we should hold a vote. 
And there was a tremendous pressure brought to bear on that colleague 
from the suppliers of this dark money, and then 3 days later he changed 
his position.
  This is a corruption of the very foundation of our democracy, and 
that is why there is only one legitimate nominee who President Trump 
should put forward to end this act of theft, to honor the integrity of 
the responsibility of the Senate, and that is Merrick Garland. We don't 
know where he stands on lots of issues. He has been a judge who came 
right down the middle. He has been a judge whom everybody respected. He 
wasn't from the extreme. But the process of stealing the seat was to 
get a judge whom everyone knew where he stood, because they wanted to 
make sure that he would sustain Citizens United, that he would take the 
corporate side against the consumer time after time after time. This is 
why there is a tragedy unfolding right now. I urge the American people 
to pay attention because the very foundation of our democracy, of the 
integrity of our institutions are being shattered, degraded, and 
destroyed right before our eyes.

[[Page S2078]]

  Those who care about the Constitution, those who care about the 
integrity of the Senate doing its job under its oath, those who care 
about the integrity of the Court must stand up and say no to this 
effort to pack the court.
  One of the arguments colleagues made, not knowing the history of the 
United States, was that there just wasn't time. There was just not 
enough time to consider a nominee. So here is a little bit of 
information regarding time. Since the 1980s, every person appointed to 
the Supreme Court has been given a prompt hearing and a vote within 100 
days. Since 1975, the average is 67 days.
  So to those who said that this seat opened up in January and there 
wasn't time left to have the Senate exercise its responsibility, we can 
see that they were just presenting a falsehood, that there was plenty 
of time for the Senate to exercise its responsibility. To those who 
said that the nomination didn't come until March, there was still 10 
months left. So from the time that Merrick Garland was nominated, 293 
days were left in the administration.
  For Kagan, consideration took 88 days; for Sotomayor, 67; for Alito, 
83; for Roberts, 63; for Breyer, 74; and for Ginsberg, 51. Do we hear 
any numbers equivalent to 293 days?
  Let's look at Thomas, 69 days, Kennedy at 65, Scalia himself at 85, 
Rehnquist at 89, and O'Connor at 33. They all fall into the same 
pattern of a couple of months for the paperwork to be done, the 
investigation to be completed, and the committee to hold hearings and 
to act. But there is Garland, with 293 days, and the Senate failing to 
  This simply reinforces the pretense put forward that there wasn't 
enough time, or that there was a tradition of not considering a nominee 
for a seat that became available in an election year, because it has 
happened 15 times previously in our history, and in all 15 times the 
Senate acted--every single one. So every argument put forward was 
phony, was wrong, and was based on falsehood. It was driven by dark 
money puppeteers of this Chamber wanting to make sure they could keep 
open their Citizens United money corrupting American campaigns and 
debasing our democratic Republic.
  So to everyone who cares about the integrity of the Senate and the 
integrity of the Court, let this Senate know that they must return to 
respecting this institution and to respecting the Court. That means 
Merrick Garland must be the nominee until the Senate has acted on him, 
and the nominee before us must be rejected. To do anything else is to 
desecrate the integrity of this Court and this Chamber.
  The PRESIDING OFFICER (Mr. Cotton). The Senator from Colorado.

                       Nomination of Neil Gorsuch

  Mr. GARDNER. Mr. President, I come to the floor once again today to 
talk about the confirmation of Judge Neil Gorsuch to the U.S. Supreme 
  In the 235 years of our Nation's history with the Constitution, there 
has never been a successful partisan filibuster of a Supreme Court 
Justice. What I mean by that is this: No Supreme Court nominee has ever 
been rejected by a partisan filibuster on the floor of the Senate. Now, 
sure, we can argue about the 1968 bipartisan attempt to make sure that 
then-Associate Justice Abe Fortas wasn't elevated to the Chief Justice 
  What this Chamber is facing today isn't a question of whether we will 
abide by the Biden rule. The Biden rule, of course, was when Joe Biden 
said: During the last term of the outgoing President, when the office 
is up for election, we are not going to confirm any nominees. This 
isn't an argument over whether Chuck Schumer was right when Senator 
Chuck Schumer said: Heck, over the last couple of years of the Bush 
administration, we are not going to allow a Justice to be confirmed.
  That is not what we are arguing about today. We are arguing about 
whether a brilliant legal mind, a judge who has proven incredible legal 
temperament over the last several months since his nomination, a judge 
who has agreed 97 percent of the time with the majority decisions of 
the court, should receive an up-or-down vote.
  Have no doubt that this is a historic opportunity for this Chamber to 
come together to prove that we believe in that 230-year precedent of 
confirming Supreme Court Justices. This is an opportunity we have to 
come together on a judge who just 11 years ago was confirmed 
unanimously by voice vote. There was no opposition 11 years ago to 
Judge Gorsuch when he was confirmed to be placed on the Tenth Circuit 
Court, which is based in Denver. Now, the Denver-based court, the Tenth 
Circuit Court, covers about 20 percent of our Nation's land mass. It is 
a huge, huge area. This is a court that deals with public lands cases. 
This is a court that deals with water issues, complex public lands 
issues, and Tribal issues. This is a judge who has been a part of 2,700 
opinions, voting 97 percent of the time with the majority of the court.
  Now, the majority of the court aren't all George W. Bush or George 
H.W. Bush or Ronald Reagan nominees. The nominees in the Tenth Circuit 
Court are bipartisan justices. It is filled with Democratic and 
Republican appointees. That is the Tenth Circuit Court, with whom Judge 
Gorsuch has worked. Judge Gorsuch has been somebody known as a feeder 
judge. A feeder judge is somebody that the Supreme Court--when they are 
looking to select clerks to help the Justices do their work--looks to, 
like Judge Gorsuch, to provide them with law clerks to help them at the 
Supreme Court. They do that because he is an incredible and outstanding 
jurist, somebody who has the respect on both sides of the aisle, 
Republican and Democrat. That is why he is a feeder judge. That is why 
he was confirmed 11 years ago by a bipartisan body of Senators.
  In the last couple of weeks, we have seen days' worth of hearings 
where each Senator has been able to speak for an hour or so, 
questioning Judge Gorsuch, days' worth of hearings where the American 
people witnessed as Judge Gorsuch laid out his legal philosophy and his 
temperament, and where he displayed the even temperament we need on a 
Supreme Court--the kind of temperament that not only is able to work 
with colleagues but understand complex legal cases. And 11 years ago 
his confirmation was so noncontroversial that when it came to his 
confirmation, Senator Lindsey Graham was the only one who showed up. He 
was the only one at the confirmation hearing. That is how 
noncontroversial it was. What a difference a court makes.
  Now, let's talk about some of the Senators who supported him, or at 
least didn't object to him, 11 years ago. Then, Minority Leader Chuck 
Schumer didn't oppose Judge Gorsuch of the Tenth Circuit Court. Senator 
Leahy, a member of the Judiciary Committee, did not object to Judge 
Gorsuch. Senator Feinstein, another member of the Judiciary Committee, 
didn't oppose Neil Gorsuch. Senator Durbin, the minority whip, did not 
oppose Judge Neil Gorsuch 11 years ago. Senator Cantwell, Senator 
Carper, Senator Menendez, Senator Murray--none of them opposed Judge 
Gorsuch's confirmation to the Tenth Circuit Court. Senator Nelson, 
Senator Reed, Senator Stabenow, Senator Wyden--all of them here today. 
None of them objected to Neil Gorsuch.
  It is even more than that. Then-Senator Barack Obama did not object 
to Judge Gorsuch's confirmation. Then-Senator Hillary Clinton didn't 
object to Judge Gorsuch's nomination. Then-Senator Joe Biden helped 
pass his confirmation, his appointment, and made sure it cleared on a 
voice vote.
  To hear the partisan bickering here is extremely disappointing and 
disingenuous. So I hope this Chamber will do what we do best in this 
country, and that is to come together on issues of doing our job of 
confirming a Supreme Court Justice after spending the past several 
months complaining that the Supreme Court wasn't filled.
  This judge should receive bipartisan support, as he did 11 years ago. 
I guess the question has to be asked of people who are now opposing 
Judge Gorsuch today, who either supported or did not object to him 11 
years ago: Did they not do their work 11 years ago? Did they not 
realize he was a bad judge? Or has the time of politics changed? Or are 
we just dealing with a President whom they have decided they don't want 
to have a Supreme Court Justice from? I guess that is what has perhaps 
changed the most over the past 11 years, because there is not really a 
narrative we can point to for a reason of why they should oppose him, 

[[Page S2079]]

than people just deciding that the politics of the now require it, and 
that is incredibly disappointing.
  If we look at Judge Gorsuch's statements, he talks about Justice 
Scalia's vision of the good and faithful judge. I think it is a worthy 
one that we focus on because of what it means to Judge Gorsuch--soon to 
be Justice Gorsuch--to be a good and faithful judge:

       It seems to me that the separation of legislative and 
     judicial powers isn't just a formality dictated by the 
     Constitution. Neither is it just about ensuring that two 
     institutions with basically identical functions are balanced 
     one against the other.
       To the founders, the legislative and judicial powers were 
     distinct by nature and their separation was among the most 
     important liberty-protecting devices of constitutional 
     design, an independent right of the people essential to the 
     preservation of all other rights later enumerated in the 
     Constitution and its amendments.
       Now consider . . . if we allowed the judge to act like a 
     legislature. Unconstrained by the bicameralism and 
     presentment hurdles of Article I, the judge would need only 
     his own vote, or those of just a few colleagues, to revise 
     the law willy-nilly in accordance with his preferences and 
     the task of legislating would become a relatively simple 
       Notice, too, how hard it would be to revise this so-easily-
     made judicial legislation to account for changes in the world 
     or to fix mistakes. Unable to throw judges out of office in 
     regular elections, you'd have to wait for them to die before 
     you'd have any chance of change. And even then you'd find 
     change difficult, for courts cannot so easily undo their 
     errors given the weight they afford precedent.
       Notice finally how little voice the people would be left in 
     a government where life-appointed judges are free to 
     legislate alongside elected representatives.
       The very idea of self-government would seem to wither to 
     the point of pointlessness.
       Indeed, it seems that for reasons just like these Hamilton 
     explained that ``liberty can have nothing to fear from the 
     judiciary alone,'' but that it ``ha[s] everything to fear 
     from [the] union'' of the judicial and legislative powers. . 
     . .

  That is the explanation that Judge Gorsuch has given to Justice 
Scalia's good and faithful judge--a judge who believes that the 
judicial branch is the guardian of the Constitution to take a decision 
or a question before them to the place the law leads them to, not to 
the place where politics sends them or politics demands them or 
personal opinions and beliefs dictate.
  We have heard Judge Gorsuch say he believes that a judge who 
personally believes or agrees with every opinion he reaches is probably 
a bad judge. It is because Judge Gorsuch knows that once you put on the 
robe, you don't follow your personal opinion. You follow the law. That 
is the guarding of the Constitution that the Federalist Papers talked 
  So that is the kind of nominee we are dealing with--a nominee who 
understands the separation of powers and who understands the role of 
the judiciary, the role of the legislative branch, and the role of the 
executive. In fact, he believes that the executive branch has been 
empowered too greatly and that we should once again have separate but 
equal branches of government balanced in power.
  I think that is a good judge to place on the Court--a judge who is 
clearly mainstream, a judge who clearly has the temperament to work 
with colleagues to make our country proud.
  Certainly as a fourth-generation Coloradan, I am very excited Judge 
Gorsuch has been nominated by the President. In addition to the 
bipartisan support Judge Gorsuch received here 11 years ago, he also 
has tremendous bipartisan support back home in Colorado. In fact, I 
have a letter here from Jim Lyons, who was a personal friend and lawyer 
for President Bill Clinton. It is a letter to Senator Grassley, 
chairman of the Senate Judiciary Committee, dated February 7, 2017.

       I write this letter in strong support of the nomination and 
     confirmation of Neil Gorsuch for Associate Justice of the 
     Supreme Court.

  He ends his letter with this:

       Judge Gorsuch's intellect, energy and deep regard for the 
     Constitution are well known to those of us who have worked 
     with him and seen first-hand his commitment to basic 
     principles. Above all, his independence, fairness and 
     impartiality are the hallmarks of his career and his well-
     earned reputation.

  The former Governor of Colorado, Democrat Bill Ritter, supports the 
confirmation of Judge Neil Gorsuch.
  Eleven years ago, then-Senator Ken Salazar spoke very highly of his 
temperament, saying in 2006 that Judge Gorsuch met the ``very high 
test'' required of someone to be a ``great judge'' and that he has 
``demonstrated a dedication to fairness, impartiality, precedent and 
avoidance of judicial activism--from both the left and the right.''
  The Denver Post editorial board, which came out in support of Hillary 
Clinton, argued for Neil Gorsuch's nomination, saying: ``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 faith in the 
highest court of the land.''
  Neal Katyal, former personnel in the Obama administration, stated his 
support for Neil Gorsuch: ``I am confident Neil Gorsuch will live up to 
that promise'' to ``administer justice without respect to persons, and 
do equal right to the poor and to the rich.''
  The Washington Post editorial board, many others in Colorado's legal 
community, including the former cochair of the Host Committee of the 
Democratic National Convention in 2008, support the confirmation of 
Neil Gorsuch. This is not a partisan judicial appointment; this is a 
judge who has strong bipartisan support from the people who know him 
  I hope we can live up to that high, noble intention of our 
Constitution, the purpose of the Senate, to make sure we are confirming 
somebody to do a lifetime service for this country in a way that 
respects our Constitution and the people of this country.
  I hope that over the next several days as we debate the nomination, 
we will move away from this cliff of changing two centuries' worth of 
precedent in this body and instead come together in a way that befits 
the best nature of our country.
  Mr. President, I thank you for this opportunity to speak and come to 
the floor.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. PERDUE. Mr. President, I rise today to speak about one of the 
greatest honors and privileges that we enjoy here in the Senate. As 
outlined in article II, Section 2, of the Constitution, one of the real 
honors of serving here in the Senate is the opportunity to offer advice 
and consent for nominees to the U.S. Supreme Court.
  This body has historically treated it in such a solemn manner that in 
over 230 years of our history, no nominee to the Supreme Court has ever 
been denied a seat through the use of a partisan filibuster. 
Unfortunately, right now, Members--colleagues from the other side of 
the aisle--are threatening that very precedent.
  As I said on the floor earlier this year, President Donald Trump 
promised the American people he would nominate an unwavering supporter 
of the Constitution to fill the vacancy left by the late Justice 
Scalia. This President has kept his promise. He has nominated somebody 
who was actually confirmed here in the Senate not that long ago by a 
voice vote by Members who are still here in the Senate, many of them. 
This was a nomination to the Tenth Circuit, a role that this man, the 
nominee, filled with great honor and much distinction.
  Judge Neil Gorsuch's record of service lives up to the highest 
standards for a Federal judge. His academic and legal records are 
impeccable. He has demonstrated a keen understanding and appreciation 
for the rule of law, and he spoke so articulately in hour after hour of 
interrogation, actually, in his confirmation hearing just last week. 
Most importantly, Judge Gorsuch has repeatedly demonstrated his 
commitment to the Constitution and to our founding principles of 
economic opportunity, fiscal responsibility, limited government, and 
most important, individual liberty.
  His testimony last week before the Senate Judiciary Committee was 
masterful. It absolutely convinced me that he is the man for this job. 
Judge Gorsuch listened to questions, carefully responded thoughtfully, 
and he gave an indication into his own demeanor that he would use in 
the Supreme Court. Judge Gorsuch listened to questions carefully over 
and over. He illustrated the ability to show a balance of judgment, 
which is what we look for in a lifetime appointment like this. He made 
it abundantly clear that the role of the judicial branch is to 
interpret--not to make law but to interpret the law.

[[Page S2080]]

  In my own individual meeting with Judge Gorsuch, these same qualities 
stood out. I was very impressed with his disarming nature and ability 
to talk about issues without necessarily showing bias of his own 
opinion. Because of all this, I know he will serve as a Justice in the 
mold of Justice Scalia, that of a balanced judiciary member.
  I should also point out that this is not a partisan view point. 
Conservatives and liberals have come out in support of Judge Gorsuch's 
confirmation over and over through the past week since his nomination. 
Neal Katyal, who served as Acting Solicitor General under former 
President Obama, as a matter of fact, has described Judge Gorsuch as 
``an extraordinary judge and man.''
  The American Bar Association, which many members of this body hold as 
a gold standard for judicial nominees, actually gave Judge Gorsuch its 
highest rating--something they don't do very often. They did so 
unanimously, by the way.
  Those who know Judge Gorsuch best, regardless of their political 
persuasion, have offered ample praise and abiding respect for this 
well-qualified nominee.
  If confirmed, I have full faith that Judge Gorsuch's rulings will be 
just and rooted in the letter of the law.
  This nomination and confirmation come at a time in the history of 
this Republic when it is absolutely crucial that we have a balanced 
jurist as the ninth member of the Supreme Court. Jonathan Turley, 
constitutional law professor at George Washington University right here 
in Washington, says that this past administration created a 
constitutional crisis the likes of which our country has never seen. 
Professor Turley talks about how a President has shown future 
Presidents a new precedent of how to run the government without 
Congress by blocking the Senate and actually creating the fourth arm of 
government--the regulators.
  This is a time we have to have a jurist who will bring a balanced 
view for all Americans to be represented in the Supreme Court.
  I am proud to have the opportunity to support this nominee. I urge my 
colleagues in the Senate to put partisan interest aside, to put the 
best interest of the country first, and to confirm Neil Gorsuch as the 
next Justice of the Supreme Court.
  I take this as a huge privilege to speak out today, and I will speak 
more next week on the history of this nomination.
  Thank you for the opportunity to speak.
  I yield my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, there has been a long conversation about 
a Supreme Court Justice. Quite frankly, there should be a long 
conversation. It is an incredibly important role of the Senate for 
advice and consent. We are talking about a Supreme Court Justice as 
someone who serves on the Court for life, so it has to be right.
  A long conversation about Neil Gorsuch is coming to a head. In the 
next week, he will come to this floor. He will face final debate, and 
the very long confirmation process will end with him joining the 
Supreme Court as the ninth Justice. When he is added on as an Associate 
Justice, it won't have been a short journey. He has met with every 
single Senator face to face. He has made all the time available that 
they wanted to have for face-to-face questions and to be able to go 
through those issues personally. He has been in very long hearings. He 
sat down hour after hour, multiple days, answering questions from 
Senators in the Judiciary Committee, then a vote from the Judiciary 
Committee, and then coming to this floor. There has been research in 
his background in every case. Everything he has ever written and every 
speech he has ever given has been examined overwhelmingly. And at the 
end of that, he has been found to be a very serious member of the 
  In this body in 2006, he was put on the Tenth Circuit, a circuit that 
Oklahoma happens to be in. There was a unanimous vote in the Senate in 
2006 for him to join the Tenth Circuit. He was seen as a consistent, 
solid, mainstream, fair judge. That means Senator Joe Biden voted for 
him. Hillary Clinton voted for him. Chuck Schumer voted for him. Barack 
Obama voted for him in 2006.
  After going through all of his background leading up to this point, 
since that time, what has happened? Did he leave the mainstream during 
that time period after he was overwhelmingly voted here, unanimously 
out of the Senate, to be on the Tenth Circuit? Well, since that time, 
he has been a part of 2,700 cases in the last decade. Of those 2,700 
cases, 97 percent of them were unanimous. In 99 percent of the cases, 
he was in the majority in those opinions. Only 1 percent of the time he 
was not in the majority of the decision.
  So you may ask, who is the Tenth Circuit Court that he is working 
with, this large group of judges who are in that court? Let me give you 
the basics of it. Of the Tenth Circuit judges there right now, whom he 
is serving with, with whom he was in the majority 99 percent of the 
time, five of the other judges were Obama appointees, five of them were 
George W. Bush appointees, three of them were Clinton appointees, three 
of them were Reagan appointees, 1 was Bush 41, and 2 of them were from 
President Carter. That is the group he was voting with in the majority 
99 percent of the time.

  He was seen by this Senate in 2006 to be a solid, mainstream jurist. 
Since that time period, he has voted with them 99 percent of the time 
in a very diverse Tenth Circuit.
  CRS, in their background research with him, said that Judge Gorsuch's 
opinions had the fewest number of dissents of anyone in the Tenth 
Circuit. In other words, when he wrote the opinion, his colleagues 
disagreed with him the fewest number of times of anyone on the Tenth 
  He is a solid jurist, respected around the country, and one who 
deserves not only an intense investigation but I believe deserves to be 
put on the Supreme Court of the United States. I look forward to voting 
for him next week.
  In the process, I hope, as we support him, that we will also step up 
and do a process that has been consistent in this country for the last 
230 years of how we process through judges; that is, we have an up-or-
down vote. They are not blocked by a cloture vote to try to keep them 
from getting to a final vote. The judges here get an up-or-down vote. 
That is the way we have done it.
  Of the eight Justices who are sitting on the bench right now, only 
one of them even had a cloture vote at all, and that one wasn't even 
close. It was 72 to 25, and that was Justice Alito.
  Just to walk through the brief history of some of the recent judges 
and some of the things that have happened and how it is absurd that we 
would even be discussing a filibuster of a Supreme Court Justice, 
Justice Kagan was approved by a vote of 63 to 37. There was bipartisan 
support coming out of the committee. I can assure you, there wasn't 
bipartisan support for policy positions.
  For some reason, Judge Gorsuch is being accused of being partisan or 
political or somehow connected to the President, so that would 
disqualify him.
  Ironically, Justice Kagan was a member of the White House staff 
before she was nominated to go onto the Court. That was not considered 
disqualifying when it was Justice Kagan and the Republicans were in the 
minority looking at it. They considered that everyone should be looked 
at fairly based on qualifications, when she was coming directly from 
the White House staff onto the Supreme Court.
  Justice Sotomayor was approved by a vote of 68 to 31--again, 
bipartisan support even in committee.
  Clarence Thomas, one of the most controversial nominees in this last 
century, came out of the committee with a divided committee. After the 
vote failed, the committee then voted to send his nomination to the 
floor without a recommendation. He then passed on a floor vote of 52 to 
48. There was never a request for a cloture vote. No one filibustered 
him--not one person.
  If Clarence Thomas would have had a filibuster threat facing him, he 
wouldn't be on the Court today. He has been an excellent jurist on the 
Supreme Court, but he came out during a time when there weren't these 
idle threats.
  It is even interesting that Robert Bork, who is currently not on the 
Court--his vote failed 42 to 58, but that was a failed final vote. 
Robert Bork did

[[Page S2081]]

not face a filibuster threat. He was brought to a final up-or-down 
  I could go on and on to walk through the judges and Justices and how 
they have gone through the process, but there has been a simple 
procedure: Is this person qualified?
  The American Bar Association, multiple entities, huge bipartisan 
support around the country--there is no question he is qualified. There 
is no question he has been a great jurist. There is no question he has 
been an excellent writer.
  Now it is a question of, Will the Senate follow through on the 
procedures that we have followed through on for two centuries? Give 
judges an up-or-down vote, and the majority and the minority both 
respect the process of what it means to be a part of article III 
leaders in the Justice Department.
  This is the way that this works in the days ahead; this is the way it 
has worked in the days past. We need to be able to resolve it now.
  I look forward to voting up or down and getting that vote for Judge 
Gorsuch. I look forward to his joining the Court to be that ninth 
Justice and to the Court being able to get back to their business. 
There are a few issues that are unresolved from the fall. There are not 
many cases that were divided 4 to 4, but a few. It is time to get those 
resolved and be able to add this ninth Justice.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. Mr. President, I certainly agree with the comments just 
made by our friend from Oklahoma in looking back at the history of the 
Court. The 200 years of giving judges a vote really is an important 
thing for us to understand, as hopefully enough Members of the Senate 
decide between now and sometime next week that the up-or-down vote--
where they get to vote however they want to--is totally appropriate.
  I would like to speak about one other topic that we are dealing with 
this week. I was here yesterday to talk about Judge Gorsuch. I will 
likely be back again before this debate is over because it is 
critically important that he be confirmed.
  Mr. President, I want to speak for just a minute about what we are 
also doing this week under the Congressional Review Act. One of the 
reasons the Court matters is that the Court gets to decide on occasion 
whether an agency has the legal ability to make a rule, but just 
because they may have the legal ability to make a rule doesn't mean 
they should make a rule that stands if the Congress doesn't agree.
  The Congressional Review Act, under the late rulemaking of President 
Obama, has had a real opportunity to work for, I would say, the first 
time, but the truth is, it has worked one other time in 2001. In the 
25-or-so-year history of the Congressional Review Act until the last 
few days, the last few weeks, it has been utilized only because it is 
really only practically available to the Senate and to the House if 
there are midnight rules, rules that come up at the last minute.
  As of today, the Senate has already passed 11 resolutions that have 
disapproved those late rules that came in the final days of President 
Obama's administration. By the time we finish this process, I think we 
will be toward a total of maybe 15 rules that would have had a real 
impact on our economy, that would have had a real impact on job 
creation, that would have had a real impact on families. Those rules 
are not going to happen because of the Congressional Review Act.
  I have been an opponent of many of these rules and many of the 
regulations we have seen over the last 8 years, but they have often 
been able to become law anyway because the Congress, frankly, couldn't 
do anything about it.

                            Title X Program

  In particular, I would like to commend Senator Joni Ernst for her 
work on the resolution of disapproval we expect to consider tomorrow. 
Senator Ernst's resolution would simply restore the ability of States 
to set their own criteria for grant recipients under the title X 
  I would like to remind my colleagues that this rule was issued on 
December 19, 2016. It took effect January 18, 2017, 2 days before the 
end of President Obama's administration. So for 7 years and 363 days, 
the Obama administration didn't need this rule, but they issued it on 
the way out the door.
  Overturning this rule would not reduce a single dollar of funding 
that is available under title X. Again, all we are doing is simply 
giving back to the States the flexibility they had until the last 48 
hours of the Obama administration to determine which health providers 
were in the best position to provide the particular set of healthcare 
services before the rule took effect.
  This rule is another example of overreach. This is another example of 
out-of-control regulators. I certainly am pleased to see Senator Ernst 
bring it to the floor.
  The determination of how the rules should be made and who should make 
them and who should do something about it is something that this 
Congress, in the next few weeks, has to take a stronger stand on.
  I hope we find a way where we have to vote on every rule that has any 
significant economic impact. That bill has passed the House of 
Representatives already.
  I see the Senator from Wyoming here, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I would like to add my voice to that of 
the Senator from Missouri. I thank him for his leadership and for his 
excellent work on the matters that he has been addressing.

                       Nomination of Neil Gorsuch

  Mr. President, I am here to address the issue, as I have done before 
and will again, of the nomination of Judge Neil Gorsuch to be a Justice 
of the U.S. Supreme Court. America needs judges who can follow the law, 
who have the highest ethical standards, and who value the independence 
of our courts. That is the description of Neil Gorsuch. That is him in 
a nutshell. We saw it throughout his career, and we saw it again in his 
confirmation hearing last week.
  Democrats on the committee asked him to talk about issues that are 
going to be coming up before the Supreme Court. Well, Judge Gorsuch--we 
know what he did. He followed the rules, the ethics rules. These are 
the rules that say that judges and nominees should not answer those 
kinds of questions.
  Following the rules is exactly what he should have done, and it is 
exactly what other nominees that both Republican and Democratic 
Presidents have placed on the Court have done in the past.
  It is what Ruth Bader Ginsburg did at her confirmation hearing in 
1993. She said that a ``judge sworn to decide impartially can offer no 
forecasts, no hints.'' She said that this would ``display disdain for 
the entire judicial process.'' She was confirmed.
  That is exactly what Judge Gorsuch said. That is the Ginsburg 
standard, and every nominee since then has followed that standard.
  Democrats on the Judiciary Committee also tried last week to 
criticize Judge Gorsuch for some of his opinions that they didn't like. 
They suggested that the Court should have ignored the law--ignored the 
law and sided with ``the little guy'' in these cases.
  Judge Gorsuch was quick to point out that all judges are absolutely 
not supposed to consider who they think is sympathetic. They are to 
rule based on the law.
  Federal judges actually swear an oath to ``administer justice without 
respect to persons, and do equal right to the poor and to the rich.''
  It is interesting because the minority leader, Senator Schumer, 
himself has spoken about how important it is for a judge to be 
impartial. In 2009, at the confirmation hearing for Justice Sonia 
Sotomayor, he praised the way that she put the ``rule of law above 
everything else.'' He said that she did this even when it led to 
rulings that ``go against so-called sympathetic litigants.'' That was 
  Fast forward to 2017. It is the identical standard that Judge Gorsuch 
has followed. He pointed out that it is his job to apply the law, and 
writing the laws is the job of the legislative branch of government.
  We are not here selecting the 101st Senator. This is not about who 
ought to be another Senator. This is about who should be on the Supreme 
Court. We are selecting a Justice for the most important Court of the 

[[Page S2082]]

  Nearly everyone who has looked at this nominee's record, who has 
watched his confirmation hearing agrees that he would be an excellent 
Justice. There was one lawyer who wrote an op-ed in The Washington Post 
on March 8. He is a board member of the liberal American Constitution 
Society. He wrote that ``there is no principled reason'' to vote 
against Judge Gorsuch. A Denver Post editorial last week said Judge 
Gorsuch would make ``a marvelous addition to the Supreme Court.'' The 
American Bar Association has given him its highest possible rating. He 
was even introduced at his confirmation hearing last week by a former 
top lawyer for the Obama administration. Neal Katyal is a Democrat. He 
was the Acting Solicitor General of the United States for President 
Obama. He has called Judge Gorsuch ``one of the most thoughtful and 
brilliant judges to have served our nation over the last century.''
  I think any Democrat who watched the confirmation hearings and looked 
at the nominee's record will decide it is an easy decision to confirm 
  If there is a Democrat who reaches the opposite conclusion, I say: 
Come to this floor. Come to the floor of the U.S. Senate. Explain why 
you think our judges should go into a case favoring one side or 
another. If you think a judge should make promises about how he will 
rule just to win the vote of a Senator, go ahead. Come to the floor. 
Make your case. If you think that a Justice of the Supreme Court should 
ignore the law and rule not based on the law but by that judge's own 
preferences, please come to the floor and say so. I don't think that is 
what the American people want.

  The American people want judges who are smart, who are principled, 
who are fair, and who know that their job is to follow the law, not 
write the law. The American people know that Neil Gorsuch is exactly 
that kind of judge, and that is the kind of judge who we should have on 
the Supreme Court and on every court of the land.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted 
to complete my remarks today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I want to compliment the distinguished 
Senator from Wyoming for the wonderful remarks he has made. They are 
right on point.
  Last week's Judiciary Committee hearing on Judge Neil Gorsuch's 
Supreme Court nomination made two things abundantly clear. The first is 
that Judge Neil Gorsuch is a superb, highly qualified nominee. Second, 
with the possibility of the first partisan filibuster in the history of 
a Supreme Court nominee, I have come to the conclusion that some 
Democrats would do almost anything to keep us from having an impartial, 
independent judiciary.
  As I explained at the start of the hearing last week, qualifications 
for judicial service include both legal experience and judicial 
philosophy. Legal experience looks at the nominee's past 
accomplishments in the law, while judicial philosophy anticipates the 
nominee's future judicial service.
  Judge Gorsuch's legal experience is among the most impressive that I 
have seen in my 40 years on the Judiciary Committee. He is truly an 
impressive man. This is no doubt why the American Bar Association 
easily and unanimously gave Judge Gorsuch its highest ``well 
qualified'' rating, the highest rating it can give. I certainly have 
had my differences with the ABA, because at times they appear to let 
political or ideological considerations influence their rating. I 
mention their rating now because my Democrat colleagues, including 
Senators Leahy and Schumer, have called the ABA's rating ``the gold 
standard'' for evaluating judicial nominees.
  The ABA testified about their rating at last week's hearing, 
explaining that they sought input from more than 5,000 people 
throughout the legal world who would have personal knowledge about 
Judge Gorsuch. That is about as broad a group as I have ever heard of. 
They assembled 40 scholars and nationally recognized Supreme Court 
practitioners to review his judicial opinions, other writings, and 
speeches. The ABA's 1,000-page report concluded that Judge Gorsuch 
meets the ``very high standards of integrity, professional competence, 
and judicial temperament.''
  Editorial boards across America took notice as Judge Gorsuch 
demonstrated such qualities to everyone.
  The Denver Post said that Judge Gorsuch ``possesses the fairness, 
independence, and opened-mindedness necessary to make him a marvelous 
addition to the Supreme Court.''
  The Detroit News said that Judge Gorsuch ``is proving himself an even 
tempered, deeply knowledgeable nominee who should be confirmed by the 
  The Chicago Tribune said that Judge Gorsuch's critics ``suggest that 
they fear Gorsuch won't follow the law, but the opposite is more true. 
They fear he will. Gorsuch should be confirmed.''
  The second and more important qualification for judicial service is 
the nominee's judicial philosophy or his understanding of the power and 
proper role of judges in our system of government. This is ground zero 
in the conflict over the appointment of judges. America's Founders were 
clear about their design for the judicial branch as part of the system 
of government they established. Central in this design is the 
separation of powers. Government power is divided among three branches 
and is supposed to stay that way. As a result, what the legislature 
does in making law is designed to be different than what the judiciary 
does in interpreting and applying that law. This design for government 
is necessary for the liberty that we all enjoy. Change the design and 
sacrifice the liberty it makes possible.
  Specifically for our purpose today, this design provides the job 
description for judges. They interpret and apply written laws such as 
statutes and the Constitution to decide cases, and they must do so 
impartially, deliberately removing their own views, preferences, or 
agendas from the judicial equation. That is exactly the kind of Justice 
that Neil Gorsuch will be and has been. Professor Jonathan Turley, a 
well-known constitutional law expert, told the Judiciary Committee 
that, like Justice Scalia, Judge Gorsuch has a well-defined judicial 
philosophy with a record of well-considered writings both as a judge 
and as an author. In short, concluded Professor Turley, ``we have a 
very good idea of who Judge Gorsuch is and the type of Justice he will 
be.'' He will be an impartial Justice who takes the law as he finds it, 
applies it objectively to decide cases, and leaves the decision about 
changing the law to the people and their elected representatives.
  This brings me to the second thing that the Judiciary Committee 
hearing revealed last week. I said at the start of the hearing that the 
confirmation process reveals the kind of judge that Senators want to 
see appointed. And it certainly did. Judge Gorsuch's opponents seem 
determined to oppose an impartial and independent judiciary. In fact, 
it looks to me like they want the opposite--a judiciary that is partial 
and dependent. They want judges to decide cases with deliberate regard 
to the parties and with determined attention to the political interests 
that their decisions will promote.

  This is the 14th Supreme Court confirmation process in which I have 
participated, and I cannot remember Senators opposing more strongly the 
basic notion that judges must impartially apply the law.
  It is important to point out, of course, that Democrats' objection to 
judicial independence has, to be charitable, not always been 
consistent. In 2009, for example, Senator Schumer introduced Justice 
Sonya Sotomayor to the Judiciary Committee for her confirmation 
hearing. Senator Schumer was a distinguished member of the committee at 
the time. He praised Justice Sotomayor for, as he described it, 
carefully applying the law even when it meant ruling against ``so-
called sympathetic litigants.'' That was then. This is now. Last week, 
Democrats turned the Schumer standard on its head, cherry-picking a few 
of Judge Gorsuch's thousands of cases to criticize him for ruling 
against sympathetic litigants.
  Every Federal judge takes an oath to administer justice without 
respect to persons and to discharge his judicial

[[Page S2083]]

duties impartially. The ABA's Model Code of Judicial Conduct spells out 
that this includes a duty not to make commitments about issues that may 
come up in future cases.
  When Justice Ruth Bader Ginsburg appeared before the Judiciary 
Committee in 1993, she took a firm stand. She said: ``A judge sworn to 
decide impartially can offer no forecasts, no hints, for that would 
show not only disregard for the specifics of the particular case, it 
would display disdain for the entire judicial process.''
  Every Supreme Court nominee of either party has taken this same 
position. To me, this simply shows how much these nominees, most of 
whom are sitting judges already, care about their impartiality and the 
fairness it provides to litigants.
  I think it would baffle our fellow citizens to suggest that judges 
should, in effect, prejudge cases before they even come up or publicly 
take sides on issues that could later require their judicial decision. 
Our constituents would think it crazy to say that judges should not 
keep an open mind or that judges need not be impartial.
  Today, however, Democrats say they will oppose Judge Gorsuch's 
Supreme Court nomination unless he spells out those views, unless he 
provides those same forecasts and previews. In other words, Democrats 
consider the impartiality they applauded in Justice Ginsburg to be a 
liability in Judge Gorsuch. To most people, fairness, openmindedness, 
and impartiality are qualities we need in our judges. To some 
Democrats, they are obstacles to be overcome, I might say, on the way 
to a fully politicized judiciary. What do my Democratic colleagues have 
to fear from judges who are truly impartial? I mean, I don't see where 
the argument really is.
  Another tactic last week was to talk about people who had not been 
nominated and who were not even in the room. Committee Democrats, for 
example, talked about President Trump and a few of his advisers more 
than 80 times over just 3 days. They also decried the efforts of 
grassroots activists working on behalf of Judge Gorsuch's nomination. 
It mattered not that the nominee had no connection whatsoever with 
those particular efforts. No, Democrats warned of the ``extreme special 
interest groups'' that supposedly advised the President about filling 
this Supreme Court vacancy. They talked about so-called ``dark money'' 
contributed to such groups by undisclosed donors.
  I would not go so far as to directly accuse anyone of hypocrisy or of 
changing their tune based on ideology or political party. I would not 
do that. I would observe, however, that one group invited by Democrats 
to testify against the Gorsuch nomination was particularly vocal about 
condemning ``big money corrupting our politics.'' It turns out that 
this group was cited by the Center for Public Integrity in January as 
an opponent of dark money even though the group itself accepts shadowy 
funds and refuses to fully disclose its own donors.
  Next week, the Judiciary Committee will report the Gorsuch nomination 
to the Senate floor, where the same tactics will be in full view. 
Democrats are already claiming that the threshold for confirming 
Supreme Court nominees is 60 votes. Where did they get that from? They 
may wish this were the rule, at least for Republican nominees, but they 
know that is not true. They know it.
  Democrats have been playing this game for years, embracing one 
standard when it suits them, only to do an about-face later. It may be 
just a coincidence, but the flip-flopping follows an eerily similar 
pattern to election cycles when different parties control the White 
House. But, like I said, that may be just a coincidence.
  What I do know is that Senator Schumer voted 25 times to filibuster 
judicial nominees of President George W. Bush. Then, when nomination 
filibusters had declined under President Obama, he voted to abolish 
them. Now, with a Republican in the White House, he is back on the 
filibuster train. He was against judicial filibusters before he was for 
them before he was against them.
  Why not have a vigorous debate followed by an up-or-down vote? The 
1987 nomination of Robert Bork was controversial, yet there was no 
cloture vote, even though he was defeated. The 1991 nomination of 
Clarence Thomas was controversial, yet there was no cloture vote, even 
though he was confirmed.
  Republicans have never even attempted a partisan filibuster of a 
Supreme Court nominee. Most recently, then-Majority Leader Harry Reid 
said in 2010 that he would file cloture on the Supreme Court nomination 
of Elena Kagan. Republican leaders, including our former colleague 
Senator Jeff Sessions, told him that filing cloture would be completely 
  The truth is that no Supreme Court nominee has ever been defeated by 
a partisan filibuster. The only reason Democrats are choosing to push 
us in that direction is that their leftwing groups have told them to do 
  Judge Gorsuch's approach to judging empowers the American people and 
their elected representatives. It does so by taking seriously what they 
do. He takes the words of the statutes they enact and the Constitution 
they established as having substance and actually meaning what they 
say. That is the respect that our system of separated branches requires 
that each give the other.
  Last week's hearing confirmed for all to see that Judge Gorsuch has 
the legal experience and judicial philosophy and temperament to make 
him fully qualified to serve on the Supreme Court. It also exposed the 
fact that some of my colleagues see an impartial and independent 
judiciary as a threat rather than as an indispensable support for our 

  I have been kind of shocked at the turnaround by some of our 
Democratic colleagues--not all of them but some of them--that how, if 
it is their judgeship nominee, these rules do not apply that they are 
now trying to apply to Judge Gorsuch.
  I have seen a lot of nominees in my day and an awful lot of nominees 
to the Supreme Court. I have never seen one any better than Judge Neil 
Gorsuch. He is totally prepared for the job. He is an outstanding 
lawyer with great experience. He is a brilliant judge, someone who will 
enhance the Supreme Court and not deteriorate it, who deserves to be on 
the Supreme Court. Thank goodness the President has seen fit to put him 
  I hope our colleagues will think it through because we should not be 
politicizing these judgeships like has been done recently. Frankly, we 
should never politicize the Supreme Court nomination process. It is not 
just because the President is a Republican; it is because that is the 
way I have always approached it. I think that is the way most everybody 
in this body has always approached it.
  I hope people will think it through and vote for Neil Gorsuch. He 
deserves their vote. He will be a great Justice on the Supreme Court. 
He is going to make it one way or the other, and I hope my colleagues 
on the other side realize that and will dispense with some of this 
garbage that has been used against Judge Gorsuch.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Toomey). Without objection, it is so 
  Mr. CARDIN. Mr. President, I take to the floor to urge my colleagues 
to vote against two of the resolutions that are on the floor, H.J. Res. 
66 and H.J. Res. 67--both under the Congressional Review Act--which 
would not allow two regulations under the Obama administration to go 
forward that would allow for increased retirement security for American 
workers and families.
  Throughout my time in office, I have fought hard for measures that 
increase the retirement security for American workers and families. One 
of the most prominent examples is the private retirement improvements 
that I championed with my friend Senator Portman when we were both in 
the House of Representatives.
  More recently, Senator Portman and I have joined together to support 
other changes to our pension laws that enhance retirement security. For 
instance, the Cardin-Portman Church

[[Page S2084]]

Plan Clarification Act, which became law in 2015, clarified the 
application of certain tax laws and regulations to the unique 
structures of church pension plans. The Cardin-Portman Retirement 
Security Preservation Act, which was reported out of the Finance 
Committee unanimously last September, amends nondiscrimination 
regulations to protect older workers in pension plans that have been 
closed or frozen. I hope the bill will be taken up again in this 
  I mention these efforts over the years with Senator Portman because I 
think they show two things: First, they show that ensuring all 
Americans can retire with dignity is an ongoing effort. We need to work 
continually with workers, retirees, and other stakeholders to make sure 
retirement security is achievable, especially as our economy changes. 
Second, they show that this ongoing work has been and hopefully will 
continue to be strongly bipartisan. That is why I need to speak in 
opposition to H.J. Res. 66 and H.J. Res. 67. These resolutions are an 
unnecessary step backward in our ongoing retirement security work.
  As my colleagues are aware, H.J. Res. 66 and H.J. Res. 67 eliminate 
the ERISA safe harbor that was created by the Department of Labor for 
IRA plans that are administered by State and local governments. We are 
considering the local government resolution today, but I want to stress 
the importance of both types of plans.
  The provisions of this safe harbor are very similar to an existing 
safe harbor that is already in ERISA that allows employers to establish 
payroll deductions to IRAs. So long as the State- and municipal-run 
plans meet the requirements of the safe harbor, the businesses--usually 
small businesses--that offer State-run retirement plans to their 
workers will not inadvertently be subject to liability under Federal 
  The Department of Labor rules were meant to provide legal certainty 
to the increasing number of States that have decided, in the absence of 
any action by the Congress, to address the retirement coverage gap in 
their communities. Maryland is one of those States. Our State is 
active. Last year, Republican Governor Larry Hogan signed legislation 
creating a Maryland-run automatic IRA program. The legislation was 
backed by the Democratic leaders in the general assembly. In fact, it 
passed unanimously out of our Senate.
  The reason for this bipartisanship was, in part, in recognition of 
the stakes. At the time the law went into effect, which was last July, 
an estimated 1 million Marylanders worked for businesses that did not 
offer retirement savings plans. Without the rule, the businesses that 
choose to use the Maryland-run option to provide retirement plans for 
their workers may face legal liability. At the very least, the repeal 
of the safe harbor will slow the entire implementation process.
  I understand that my colleagues who oppose the Department of Labor 
rule want to be sure that strong ERISA protections apply to retirees; 
however, under current law, most IRAs do not have ERISA protection. For 
these IRAs, the only chance for any kind of consumer protection is for 
States to do it. H.J. Res. 66 and H.J. Res. 67 are seeking to undo 
  I am also confused by claims that the adoption of these resolutions 
would necessarily lead to the complete ERISA preemption of State 
programs. The Department of Labor does not take that position. To claim 
that these resolutions alone would have such a broad effect on the 
interaction of ERISA with State law is troubling, to say the least.
  Let me be clear. I would prefer Federal action in this space. 
Retirement security is one of a seemingly dwindling number of 
bipartisan issues we can tackle in Congress, and the concerns raised by 
many of the stakeholders I have worked with in the past on retirement 
reform are understandable. I am concerned that a lack of Federal action 
will lead to a State-level patchwork that will be hard for employers 
and more mobile workers to navigate. I would much rather build on the 
efforts of the States to create a uniform Federal system under which 
employers would adopt high-quality, well-managed plans. I am also 
concerned that providing a State-run option could diminish robust 
competition with the private sector.
  The point of these State-run programs is to decrease our coverage 
gap. However, we must not also create a race to the bottom whereby 
employers opt for a one-size-fits-all minimum and do not consider other 
plans that may be better tailored to their workforces. This is not, in 
my view, the case in Maryland.
  The answer to these problems is not H.J. Res. 66 or H.J. Res. 67; it 
is for Congress to continue its ongoing bipartisan work on retirement 
security, not to undermine what our States have chosen to do to help 
our mutual constituents. This is federalism the way federalism is 
supposed to work. The States adopt policies and hopefully give us some 
guidance as to how we can develop uniform national policies.
  I am, frankly, surprised that my Republican colleagues have chosen to 
take up these resolutions. It is hard to see what the disapproval of 
the Department of Labor rules achieves other than notching the repeal 
of another Obama-era rule, but at what cost?
  To me, the resolutions take a fairly clear, anti-States'-rights 
stance, all to create potential liability for small employers who will 
take advantage of the new State laws. Essentially, supporting this 
resolution means sowing unnecessary legal confusion in an area in which 
States have already acted in a bipartisan way. We can do better. We can 
work together on this issue. Instead of focusing on haphazard repeal 
measures, I am confident that we can produce thoughtful, substantive, 
bipartisan solutions.
  I urge my colleagues to oppose these resolutions. As I have in the 
past, I stand ready to work with them to ensure all Americans can save 
with dignity for their financially secure retirement.

  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                        Remembering Ed Greelegs

  Mr. DURBIN. Mr. President, allow me to take a moment of the Senate's 
time to say thank you and farewell to an exceptional person.
  Ed Greelegs was my chief of staff for 17 years, and he was a wise and 
trusted friend. I was not unique in that regard. Ed had thousands of 
friends. I used to marvel while walking through the Capitol with Ed 
Greelegs because he knew everybody, and everybody knew him--not just 
the Members of Congress and their staff but cafeteria workers, 
carpenters, Capitol Police officers, and certainly Senators, 
Congressmen, and their staffs. He was a beloved member of the Senate 
community, and what a smart fellow he was.
  During my first 10 years in the Senate, when Ed was my chief of 
staff, he was an unfailing source of wise and thoughtful advice. Some 
people are drawn to Congress because of what they think are the perks 
and power that come with this job. That is not what attracted Ed 
  For Ed, being a good public servant was always a privilege. He 
avoided the spotlight. He was there to help people and to help move 
America closer to that more perfect Union our Founders dreamed of.
  Fifteen years ago, Ed was diagnosed with early onset Parkinson's. He 
and his wife Susan faced that formidable challenge the same way they 
faced everything: together, with love, determination, courage, and a 
good sense of humor.
  Sadly, yesterday, Ed's battle with Parkinson's ended, and he passed 
away at the age of 66.
  Parkinson's disease is a bitter adversary. Over the years, it took 
away Ed's sure-footedness. It nearly killed him twice. In the end, it 
robbed him of many memories. I can recall speaking to him a few months 
back, and Susan had warned me that he didn't have much of a memory, she 
said, unless you want to talk about politics. So I called him, and we 
talked about politics--even the politics of the day--and Ed was spot 
on. He always was. But regardless of the loss of memory, it never took 
away Ed's dignity, his kindness, or his respect for others.
  Ed Greelegs worked for so many Members of Congress from Illinois that 
I think he became an honorary son of

[[Page S2085]]

our State. He grew up in Washington, DC, in the suburb of Wheaton, MD, 
and graduated from the University of Maryland.
  He came to the Capitol as an intern in 1970. Before he joined my 
staff, he worked for Congressman Marty Russo of Illinois, Congressman 
Bob Eckhart of Texas on the House Commerce Committee, Congressman Sam 
Gejdenson of Connecticut, and finally back to Congressman Marty Russo.
  He also worked briefly for the Consumer Federation of America and for 
Fannie Mae.
  In 1990 I persuaded him to come to work for me as my chief of staff 
in the House. Six years later, when I went to run for the Senate, he 
was right by my side, and he was there for me 8 years later when I 
became whip.
  His quiet, wry sense of humor helped to lighten the mood when things 
became tense, and his profound compassion and decency reminded all of 
us of why we were really there.
  There were a couple of things that Ed loved more than public service, 
and one was books. Ed's desk and his bedside were always surrounded by 
mountains of books. More than reading, Ed loved his family, especially 
his dear wife Susan and his stepchildren, Andrew and Amanda.
  I have a thousand Ed Greelegs stories, but I am going to close with 
my favorite. The year was 2002. I was on a codel with then-Majority 
Leader Tom Daschle to Afghanistan with a handful of Senators. We were 
the first group of Senators to land in Afghanistan after the war broke 
out in daylight. The security was incredible. This trip to Afghanistan 
was the first since the fall of the Taliban. No one knew who was friend 
or foe on the ground. So when we landed at Bagram Airfield in Kabul, it 
was really tense. As the back end of the plane ramp went down on to the 
runway and we were brought off, we were surrounded by armored personnel 
carriers and men holding rifles. These armored personnel carriers were 
as far as the eye could see, and the armed troops as well.
  As I came down the ramp, a man in civilian clothes walked up to me 
and said: Are you Senator Durbin?
  I said: Yes, I am.
  He said: Well, I am a personal friend of Ed Greelegs.
  I couldn't believe it. In the middle of a war zone, here was another 
friend of Ed Greelegs.
  On behalf of friends of Ed everywhere, I want to say: Thank you, my 
friend. You made this Congress and this country better with your caring 
and dedication. We will all miss you.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the floor, let me thank my 
friend from Illinois for his very thoughtful and warm remarks about 
somebody who we all admired very much, Ed Greelegs.
  I remember so many times talking to him about the rights of seniors, 
and a lot of us who thought we knew something about the subject didn't 
know half of what Ed did. This was a guy with a really razor-sharp 
mind, but he had an even bigger heart, and particularly a heart for 
people without clout and power. I don't think it was an accident that 
he gravitated to the senior Senator from Illinois, I might add as well.
  So I thank my friend for his very gracious remarks about somebody we 
all admired very much.
  Mr. President, I am here this afternoon because from the people who 
brought us TrumpCare, which was so favorable to the fortunate few and 
the special interests, now comes legislation that is going to make it 
harder for working people and working families to save for their own 
retirement. To kind of put that in context, whenever we have a debate 
about retirement, we always hear people say: You know, you just ought 
to realize that Social Security, this earned benefit--an earned benefit 
for Americans--you have to realize it is not going to cover everything. 
You have to save privately. You have to save for your retirement. And 
now, what we are seeing is the powerful special interests--the people 
with deep pockets and great political influence--are talking about 
restricting the chance for those typical working families to do the 
very thing that those people usually say is the solution. They say: No, 
we can't have government programs; you have to save privately for your 
retirement. And now come along those very powerful special interests, 
and they want to talk about restricting the ability of working families 
to save privately.
  So we are now debating the first of two resolutions that would put a 
huge dark cloud over the new programs with individual retirement 
accounts, called auto-IRA programs, that States like mine and a handful 
of cities are seeking to build.
  Right now, immediately, it is the locally based programs that are 
trying to promote private savings, giving the working-class family the 
chance to do it, and they are the ones who could be undermined. Of 
course, depending on what happens around here, the State programs could 
be next.
  So at this time in American history, when we are facing a very large 
challenge with respect to savings, when a little over half of the 
workers approaching retirement age have nothing--zero--saved in 
retirement accounts such as individual retirement accounts or 401(k) 
plans, these two resolutions amount to a game plan that would take the 
savings crisis, which is already bad, and make it worse.
  Around 55 million Americans don't have access to a retirement plan at 
work. More often than not, it is the employees of small- and medium-
sized businesses who don't have that job benefit, and it is no fault of 
their own. In my view, this shouldn't even be a partisan question. 
There ought to be bipartisan interests in helping these workers find 
new opportunities to save. It ought to be easier than it is today.
  I see my friend and colleague from the Finance Committee in the 
Chair, and as he knows, we have had countless committee hearings in the 
Finance Committee. We have been part of multiple floor debates when I 
have heard Members on both sides of the aisle talk about the importance 
of private savings. Yet here we are in the Senate, and yet we are 
looking at an effort on the part of the majority at this point that 
wants to ram through resolutions that would make it harder to save, not 
  So juxtapose what is going on today and then think about all of the 
committee hearings in the Finance Committee, in the HELP Committee, 
where we hear people talk about private savings. We ought to make it 
easier; we ought to have smarter policies. Today the U.S. Senate is 
looking at making it harder for working families to save.
  Here is a little bit of background about this and what it means to my 
home State of Oregon, and we are looking at winning the NCAA 
championship here in a few days, so there are a lot of things we are 
talking about in Oregon right now. But I wanted to especially come and 
talk about another area where we are leading right now; that is, trying 
fresh approaches to retirement savings.
  Oregonians want as a State to help close the gap for the 55 million 
Americans without an employer-sponsored plan. After a lot of study and 
careful planning, my home State of Oregon is one of a handful of States 
that have passed what has come to be known as an auto-IRA. The actual 
name of the program is OregonSaves, and it is set to launch this 
  What it means--and the highlight of it is this is a voluntary 
program--is we are creating a new set of opportunities for workers to 
actually save. What it means in my State is if you are a worker at one 
of these businesses, when you get a job, you will get a retirement 
account, and you will be able to start saving.
  Now, I want to emphasize that it is not mandatory. Any worker who 
wants to opt out could do so, but it is designed to be simple and easy 
to use for everybody involved.
  I wish to describe for a moment some of my conversations with 
Oregonians and workers who have been part of these auto IRAs. They come 
up at townhall meetings in every county of my State--I have had a 
little over 800 now--and we have discussed savings. They come up often, 
and they say: I have been hearing about these new IRAs, and I am 
automatically enrolled in one.
  Then they say: You know, if they hadn't automatically enrolled me in 
it, I probably wouldn't have done it because there is always an expense 
in our

[[Page S2086]]

household, there is always something we think we probably should do, 
and we would say to ourselves: We had better do that now, and we can 
come back and talk about saving later.
  Those employees have come up and said: We probably wouldn't have done 
it without this automatic enrollment. But, Ron, I am so glad that we 
have it because I have seen that this is really beneficial, and it in 
effect has persuaded me that I have to take a very disciplined 
approach. I am glad this is automatic, and I especially like the fact 
that I have the last word on the subject. In other words, if I feel for 
one reason or another I can't do this automatic savings, there would be 
an opportunity for me to opt out.
  It is automatic, and it provides this path for people to start 
saving. It is cost-effective. It is straightforward for employers. It 
eliminates a lot of redtape and administrative hassle. Most 
importantly, it gives the worker the last word--the right to opt out of 
  The Trump administration says it wants to cut redtape that burdens 
business. In my view, this legislation does the opposite. It makes it 
harder for small businesses to provide retirement savings programs for 
their workers.
  One after the other, Oregon employers are raving about the 
opportunity the program represents for them, especially when it comes 
to recruiting and retaining top-notch employees and helping those 
workers build a nest egg. I just gave a little bit of empirical 
evidence from these community meetings I hold where workers say they 
particularly like what this does. It is almost like a little bit of a 
nudge to save and build a nest egg.
  Judi Randall, the finance director of an affordable housing provider 
in Roseburg, OR, says it would make a big difference for a rural 
nonprofit organization like hers to have OregonSaves available to help 
employees secure their retirement.
  Joy Andersen, another Oregon leader, is the administrator at the 
Asher Community Health Center in Fossil, OR. I had my first community 
meeting in this small town of about 500. Joy has talked about how 
important it is to her to have an attractive retirement plan to recruit 
employees to come work in Fossil in eastern Oregon.
  Kevin Max runs Statehood Media in Bend, a small company with big 
aspirations. He notes that there is no better State in the country than 
Oregon when it comes to employee recruitment. He says that OregonSaves 
gives companies like his another leg up with an even better package of 
  I believe it defies logic that in light of all of these positive 
returns from employers and from workers, that the Congress would want 
to stamp out a program like OregonSaves which has so much potential, 
but the resolution going after State initiatives--and there are two--
would pose that kind of threat.
  My view is that these are not easy programs for States or cities to 
set up. There are legal issues that date back decades that have to be 
worked through. There is a lot of heavy lifting at the Labor Department 
to get the legal roadblocks out of the way. If these resolutions pass, 
it would wipe out months and months of work that has gone into making 
this kind of State- and local-based partnership possible.
  This particular issue ought to be a no-brainer. Saving in the private 
economy is the right thing, as I have said, for a host of reasons. 
People scrimping and saving to set aside money for retirement is the 
key to a healthy retirement policy so everybody is in a position to 
have a dignified retirement rather than stretching every penny they 
have, relying just on Social Security, family members, and food banks 
to make ends meet. I believe our people want the opportunity to save, 
and they like the idea of this automatic IRA because it is fair to 
workers and fair to employers.
  My view is that the Senate ought to stand up and recognize that by 
voting against these ill-advised resolutions, this is a chance to 
support the interests of working people who would like to save in the 
private economy, ahead of special interests. I hope the Senate will do 
the right thing for those hard-working people and their families and 
vote these resolutions down.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TOOMEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Gardner). Without objection, it is so 

                       Nomination of Neil Gorsuch

  Mr. TOOMEY. Mr. President, I rise today to speak in strong support of 
the nomination of Judge Neil Gorsuch as Associate Justice of the U.S. 
Supreme Court.
  There has been a lot of debate about Judge Gorsuch and his candidacy 
for the Supreme Court. Let me first review some of the things that 
really have not been debated. One is the intellect and the education 
and the knowledge of this man. It is really extraordinary.
  Judge Gorsuch attended Columbia University as an undergrad, Harvard 
Law School, and he went on to Oxford for postgraduate work.
  Nobody disputes the intellect, the education, and the knowledge that 
this man brings to this job. Nobody disputes his experience and 
qualifications, either. How could they? He has spent 10 years on the 
Tenth Circuit Court of Appeals, the second highest level of courts in 
our American system. There is no question that Neil Gorsuch has the 
experience and the qualifications.
  Character and temperament are extremely important--actually, 
essential--characteristics for a judge or a Justice. I have heard 
nobody criticize the character or temperament of Judge Gorsuch, 
whatsoever. In fact, he has only gotten glowing praise about both his 
integrity, his character, his temperament, and the way he treats people 
in his courtroom and throughout his life.
  There is also no disputing that he has enjoyed very broad bipartisan 
support in the past and significantly to this day. First of all, there 
was not a single Senator who opposed his confirmation to the Tenth 
Circuit when he was nominated and confirmed.
  President Barack Obama's Acting Solicitor General, a Democrat, has 
endorsed Neil Gorsuch for the Supreme Court. A bipartisan group of 
attorneys, former colleagues from his law firm, classmates of his, and 
many people across the political spectrum from both parties who know 
this man personally have strongly endorsed his candidacy.
  So as to these very important criteria--his intellect, his education, 
his knowledge, his experience, his temperament, his character--
everything about this man is really quite extraordinary, and that is 
not even disputed. That is almost universally acknowledged.
  So what is the attack? What is the criticism that we hear about Judge 
Gorsuch? Well, one is this notion that somehow he is outside the 
mainstream. We have heard this from some of our colleagues who intend 
not to support Judge Gorsuch.
  One of the things about being a circuit court judge is that it is 
actually quite easy to evaluate whether or not a circuit court judge is 
outside the mainstream because, as it happens, appellate court or 
circuit court judges don't rule alone. They rule in groups. It is 
usually a group of three when they are hearing a case as a subset of 
the full court, or it is the entire court. Either way, they are ruling 
with other judges.
  So you can evaluate, for instance, how often they are by themselves, 
how often they are the sole minority dissenting view, because that 
might be an indication of someone who is outside the mainstream.
  It is interesting. In the over 2,700 cases that Neil Gorsuch has 
decided on, in 99 percent of those cases, he was in the majority. In 97 
percent of the cases, it was unanimous. How could that possibly be 
outside of the mainstream? That is not a valid argument at all.
  As to the people who are trying to manufacture some opposition to 
Judge Gorsuch, what they are doing is they are cherry-picking a handful 
of the over 2,700 cases in which he has participated in, and they try 
to find a handful in which Judge Gorsuch did not rule in favor of 
litigants that our Democratic colleagues believe are politically 
sympathetic. That is what their argument has come down to.
  The Democratic minority leader has been down on the floor for a 
speech, and I will quote from his speech. He said: ``I saw a judge who 
repeatedly decided with insurance companies that

[[Page S2087]]

wanted to deny disability benefits to employees.''
  The Democratic leader goes on to say: ``I saw a judge who, in 
unemployment discrimination, sided with employers the great majority of 
the time.''
  Here is another quote: ``Time and time again, his rulings favor the 
already powerful over ordinary Americans.''
  The Democratic leader went on to marvel: ``Judge Gorsuch ruled 
against a teacher.'' ``Judge Gorsuch ruled against a truck driver.''
  Now, even if you set aside the fact that the facts in these cases 
have been wildly distorted in the retelling that I have heard, and if 
you set aside the fact that even in those very cases in which Judge 
Gorsuch has ruled, often he has ruled with the Democratic judges who 
enjoy the support of our Democratic colleagues, and even if you ignore 
the fact that in many of these cases he was bound by precedent--he had 
no choice--you could also ignore all the many other cases in which 
Judge Gorsuch ruled in favor of workers and unions and people who 
allege sexual harassment, environmentalists, immigrants, and other 
sympathetic litigants. The minority leader put all that aside. I think 
we have to ask a fundamental question: What is missing in this critique 
of Judge Gorsuch's decisions? What I find striking is that what is 
missing is any reference to the law. I don't hear them mention the law. 
I have not heard any of our Democratic colleagues, who intend to oppose 
Judge Gorsuch, say that he ignored the law or that he violated the law 
or that he misapplied the law or that he misunderstood the law. I don't 
hear anything of the sort.
  Now, why do you suppose that is? I think I know why that is. I think 
because to many of the people who are threatening to oppose Neil 
Gorsuch, the law isn't what really matters the most. What really 
matters the most is that politically favored special interests or 
someone that they think the public will be sympathetic to has to win 
regardless of the law. They want a policy outcome and one that would 
benefit their perceived preferred litigants, rather than the law.
  Here is what I think. I really think there are two unpardonable 
offenses in the minds of our friends and colleagues who are opposing 
Neil Gorsuch's nomination. The first is that Judge Gorsuch believes in 
the rule of law. I know he does. It is very, very clear. To some 
degree, there is a fundamental debate going on here between those who 
support his candidacy and those who oppose it, and it is fundamentally 
about the role of judges in the U.S. constitutional system.
  One view, the view that I have--and I believe the one that Judge 
Gorsuch shares--is that the law totally matters. What the law says 
matters, and that includes the Constitution. The words matter. And not 
only that, but it is up to the American people to change laws or to 
change the Constitution, if the American people see fit. It is up to 
judges to impartially apply the law and the Constitution, as it is 
written, and that is an important thing here. Both of these are 
  Under our view of the world, a judge is supposed to see everyone the 
same regardless of race, sex, wealth, political affiliation, or other 
characteristics. A judge is obligated to neutrally apply the law. 
Whether you are a man or a woman, young or old, rich or poor, Black or 
White, that is not supposed to matter to a judge. There is a reason our 
symbol of justice, Lady Justice, is depicted wearing a blindfold--it is 
because as a judge you are not supposed to decide based on these 
characteristics of a person; you are supposed to decide based on what 
the law says. This is fundamental to an independent judiciary, to a 
nation that lives by the rule of law.
  But the other view, the critics' view--they constantly go back not to 
the law or the application of the law but to how sympathetic the 
litigants are. That is what matters most to them. That is an implicit 
rejection of the notion that everyone is equal before the law. Instead, 
in that world view, some are more equal than others and the law means 
whatever a judge thinks it should mean, and that is based significantly 
on whom the litigants are.
  The same applies to the Constitution, in their world view, that of 
those who are opposing Judge Gorsuch. The Constitution can't really 
mean exactly what it says--that can be very inconvenient--and so what 
the Supreme Court is supposed to be, in the minds of our friends who 
are opposing Judge Gorsuch, the Supreme Court is really a permanently 
sitting constitutional convention. Make up the Constitution as it goes 
along. Decide what it means today as opposed to what it meant yesterday 
or what it might mean tomorrow. The judges are supposed to be acutely 
sensitive to the race, wealth, political affiliation of the people who 
come before them, and those criteria matter a great deal.
  In fact, you have to ask yourself, if that is the way you view the 
world, why even bother having a trial? Why not have a checklist and see 
whether the litigants come down on the politically sympathetic side of 
the ledger, and once you know that, you can decide? Why bother with the 
hassles or a trial or a case?
  I would suggest that this approach to the law--the law that depends 
on the race, ethnicity, or any other criteria of the litigants--such a 
law is not a law at all. That is how a banana republic imposes the law; 
that is not how America views the law.
  So my view, as I stated earlier, that the law means exactly what it 
says and nothing other than what it says--and that also applies to the 
Constitution--that is a view which is often described as originalism. 
The opponents' view, especially with respect to the Constitution--they 
believe the Constitution is a living document, meaning changes over 
time, in their view. I would suggest that this is the fundamental 
choice between the rule of law in the former case and the rule by 
judges in the latter case.
  Justice Scalia once said: ``Every tin horn dictator in the world 
today, every president for life, has a Bill of Rights.'' The Bill of 
Rights only protects us if it is enforced and if it is enforced 
consistently and equally for everyone who is involved. How much 
protection does our Bill of Rights provide if, as Chief Justice Hughes 
stated in 1907, ``the Constitution is what the judges say it is''? 
Well, as Justice Scalia observed, once the original meaning of the 
Constitution can be set aside and judges can rewrite it, then they can 
rewrite and limit individual liberty or any other of the rights that 
are so fundamental to the nature of our country.
  Let me give an example that makes this very specific. There is a case 
that came before the Supreme Court not very long ago called the Kelo 
decision. The Fifth Amendment states very clearly that the government 
cannot take private property unless it is ``for public use.'' That is 
what it says in the Constitution. Look it up. Well, in the Kelo case, 
five Supreme Court Justices decided that public use can mean private 
use. The word ``public'' can mean ``private.'' Specifically in this 
case, what they said was that the government can come along and take an 
individual's home and give it to a private company--in this case, to 
use as a parking lot for a private venture. This is blatantly 
unconstitutional. It is very, very clear. Yet that is what happened 
when five Justices decided they could just rewrite the Constitution as 
they prefer it.
  Here is the thing about this: Even if you believe it is a good idea 
to be able to take someone's house and give it to another private 
developer because he has a better use for it than the homeowner, if you 
think that is a good idea--I don't happen to think that is a good idea, 
but you might. If you do, we have a mechanism for making that policy 
permissible. You change the Constitution. You amend the Constitution. 
You can strike that word or insert another clause. There are any number 
of ways you can change that.
  But here is what is so important: Under our constitutional system, 
the only people who get to change the Constitution are the American 
people. They do it through their elected representatives in the 
Congress and in the State legislatures, but they are the sovereigns. It 
is the American people who get to make these decisions, who determine 
policy, not five unelected guys wearing black robes, because when they 
get to make that policy, they are not accountable to anyone. They can't 
be fired. The Presiding Officer and I can be fired. If we are not

[[Page S2088]]

doing the job our constituents want us to do, we will be fired. That is 
how we are held accountable. Our constituents can replace us with 
people who will reflect the policies they want. That is why we are the 
policymakers under our constitutional system.
  I believe Neil Gorsuch completely understands this. It is one of the 
reasons our friends on the other side of the aisle can't bring 
themselves to support him.
  I think there were two unpardonable sins that Neil Gorsuch has 
committed. I just mentioned the first. I think the second one was that 
he was nominated by Donald Trump. We have folks in this Chamber who 
don't seem to be able to accept that they lost an election, and they 
are reflexively opposing whatever it is President Trump wants, and 
apparently they intend for that opposition to continue indefinitely.

  In a public interview, the minority leader was quoted as saying: ``It 
is hard for me to imagine a nominee that Donald Trump would choose that 
would get Republican support that we could support.''
  He was asked a follow-up question: ``So will you do your best to hold 
the seat open?''
  The Democratic minority leader replied: ``Absolutely.''
  Hold the seat open for 4 years or maybe 8 years? This is outrageous, 
and it is unprecedented.
  If the minority leader were to get his way, for the first time in the 
history of the Republic, we would have a Supreme Court nominee defeated 
by a partisan filibuster. Let me stress this. This has never happened 
before in the history of the country. How many times have we nominated 
and confirmed Supreme Court Justices? Never once have we had a partisan 
filibuster used to block the consideration of a nominee. We have had 
people withdraw. We have had people who were voted down.
  The case of Abe Fortas was an unusual case where there was a 
bipartisan filibuster because there was a perception of ethics 
problems, and he, in fact, had to resign as an Associate Justice. The 
bipartisan filibuster was used when there was an attempt by President 
Johnson to elevate him to Chief Justice. That is not the precedent. 
There is no precedent.
  Take the case of Clarence Thomas. In my lifetime, I am pretty sure 
Clarence Thomas was the most controversial nominee we have ever had. It 
was a brutal, very difficult, very contentious, really ugly process--
the hearings, the nomination process, the confirmation process. In the 
end, Clarence Thomas was confirmed with 52 votes. Any Senator in the 
body could have insisted on a 60-vote threshold if it was there, but 
nobody did. No Senator did because the custom has been that Supreme 
Court Justices get confirmed if they have a majority of support. So 
what the minority leader wants to do is completely departing from that 
and establishing a new threshold.
  The minority leader made an argument that is absolutely laughable. He 
suggested that because President Obama's nominees got 60 votes, well, 
then President Trump's should. What is laughable about that is the 
reason President Obama's nominees got 60 votes is because Republicans 
gave them those votes. I was running for the Senate at the time that 
Sonia Sotomayor was nominated, and I pointed out that there was a lot I 
disagreed about with her. I am sure I will not be happy with many of 
her decisions. But here we are in the President's new term--relatively 
early--and this is a qualified, capable person. I am not going to 
obstruct. I voted to confirm her, and a number of Republicans did join 
the Democrats, and President Obama got Justice Sotomayor and Justice 
Kagan confirmed to the bench.
  The minority leader has suggested that there is this tradition of 60 
votes. Well, you don't have to take my word for it; the Washington Post 
Fact Checker--not exactly the mouthpiece of the Republican Party--did 
their fact-checking analysis, and they said it was absolutely false. 
They gave him three Pinocchios.
  It is also one of the many ironies of this that the very same 
Democrats who insist that we should allow them to permanently block any 
Supreme Court nominee because they won't provide the votes to get to 60 
are the ones who actually did break the Senate tradition and establish 
a 50-vote threshold when they wanted to pack the DC Circuit Court of 
Appeals back in 2013. Now they suggest that if we use the same tactic 
they used--although we are doing it for a different reason--that this 
would be an abomination, that the Democrats would never do this. Well, 
actually, they did in 2013. But as for the circumstances we face now, 
there is no mystery about what they would have done because they told 
us just 12 days before the election.
  Our Senator Tim Kaine, the Democratic nominee for Vice President, was 
asked: ``What happens if,'' as everyone expected at the time, ``Hillary 
Clinton becomes President and the Democrats take control of the Senate, 
if Republicans were to filibuster a Supreme Court nominee? What would 
you do?''
  I will quote Senator Kaine. He said: ``We will change the Senate 
rules to uphold the law, that the court will be nine members.''
  Here is the truth: If the election had gone differently, if Hillary 
Clinton had won and if Democrats were in control of the Senate, then 
Republicans would have probably provided the votes for a competent, 
capable, qualified Supreme Court nominee, just as Republicans did for 
Elena Kagan and Sonia Sotomayor. That is what history has shown. 
Unfortunately, our Democratic colleagues at this point seem unwilling--
or at least some of them are--to provide the same bipartisan 
cooperation to a new President attempting to fill a vacancy that 
Republicans provided to President Obama.
  Let me conclude with this: The case for confirming Judge Gorsuch was 
summed up pretty well by the editorial board of the Chicago Tribune--
again, not exactly the RNC's mouthpiece--in endorsing Neil Gorsuch. 
They said:

       Here is a judge who knows the law and knows the role of the 
     judiciary: He isn't on the bench to make law, he's there to 
     interpret it faithfully, because the separation of powers 
     among the branches of government serves our democracy. 
     Sometimes the result benefits liberal positions, sometimes 
     conservative. . . . Some of Gorsuch's critics think judges 
     should be creative and expansive depending on the political 
     climate--to treat laws differently on a cold night than a 
     warm one. Those critics suggest that they fear Gorsuch won't 
     follow the law, but the opposite is more true: They fear he 
     will. Gorsuch should be confirmed.

  If our Democratic colleagues aren't willing to confirm Neil Gorsuch 
to the Supreme Court, then there is no one they are going to vote to 
confirm to the Supreme Court. And we cannot allow a Democratic minority 
to block an up-or-down vote and deny filling a vacancy on the Supreme 
Court for 4 or 8 years. We simply can't allow that to happen, and I 
trust that we won't.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MURPHY. 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. MURPHY. Mr. President, I have a great deal of respect for my 
friend from Pennsylvania, as we have worked together on a number of 
issues, but forgive me if my blood boils when I hear my Republican 
friends talk about breaking precedent in this body when it comes to the 
consideration of Supreme Court nominees. Forgive me if I get a little 
angry when I hear those on the other side of the aisle talk about 
Democrats' using exceptional measures, in their opinion, in order to 
oppose a Justice for the Supreme Court. Come on. Everybody knows what 
happened here last year. The Republican majority decided to deny the 
President of the United States--at the time, Barack Obama--the ability 
under the U.S. Constitution to nominate a Justice to the Supreme Court, 
not because of anything having to do with the merits of the nominee, 
Merrick Garland, but simply because the President was a Democrat. 
Everybody knows that is what happened. Everyone knows that precedent 
was broken and that comity was broken here in the Senate when the 
Republican majority decided not just to deny a vote on this floor but 
not to even give the courtesy of a meeting, of a hearing to Merrick 
Garland despite the fact that he was unquestionably qualified for that 
  It is a fiction to suggest that there is some strategy amongst 
Democrats on this nomination. We are all making up our minds 
individually. I decided yesterday that I was not going to support

[[Page S2089]]

Judge Gorsuch because I think he is likely going to side on behalf of 
corporations and special interests instead of my constituents and bring 
his politics to the bench in a way that I do not think squares with the 
people whom I represent. Yes, I am going to use my ability to vote on 
the floor of the Senate in order to stop his nomination.
  I understand Republicans may not be happy about my decision and the 
decisions of others on this side of the aisle, but let's have a 
discussion about the merits of Judge Gorsuch, not the question of which 
side is breaking precedent because everybody remembers what happened to 
Merrick Garland. Nobody has forgotten that. This is not some quid pro 
quo, this is not some tit for tat, but to come down and pretend as if 
2016 did not happen.
  Mr. President, I would like to speak for a moment about a potential 
CRA--another CRA--that is perhaps coming to the floor this week or next 
week. It is one that would take away the ability of States to try to do 
something about the retirement crisis that is enveloping this country.
  I speak as one of the youngest Members of this Chamber, and it scares 
me to death to think that half of Americans who are in their working 
years have no money saved for retirement today before a qualification 
for Social Security or Medicare. Even worse, a study that I looked at 
the other day suggested that 58 percent of Americans who are working 
have not even done the calculations as to how much money they will need 
in order to retire.
  There is a retirement crisis in this country, and you can understand 
why, as wages have been essentially flat for tens of millions of 
Americans and employers have largely left the space of defined benefit 
plans. And there is just no money to save when you have to cobble 
together your paycheck to meet your budget every week and when your 
employer is not putting in the kind of plan he used to and the kind of 
contribution he used to. So you can understand why Americans are in 
this position.
  State governments--those laboratories of experiments that I hear a 
lot of my friends talk about--have come up with an idea. There are 55 
million working Americans who do not have a way to save for retirement 
out of their regular paychecks, meaning their employers are not 
offering them any way to set aside a portion of their incomes in order 
to save.
  So that is one number--55 million Americans. Here is another: In my 
State, 44 percent of workers do not have access to retirement plans 
through their employers. That is about 600,000 people in Connecticut. 
Half of my State does not have access, when they show up to work, to 
retirement savings plans through their employers. Yet we know that 
employees who have access to a payroll deduction are 15 times more 
likely to save for retirement--not twice as likely, not 5 times as 
likely, but 15 times more likely.
  It stands to reason that State legislatures would step in and say: 
OK, for employers who are not offering plans, we are going to give 
employees the ability to set aside a small portion of their earnings in 
a privately run plan that is sponsored through the State governments.
  If the employer is not going to do it, then there is really no one 
else other than the State governments. In a handful of occasions, the 
States of decided to step in and offer this option to employees.
  By the way, as far as I understand, it is not traditionally a State-
run plan; it is a privately run plan. It is just that the State is 
acting as the conduit to get employees linked with private plans and to 
allow for a small portion of their paychecks to be set aside. Employees 
are 15 times more likely to save if they have access to that payroll 
  This is a pretty run-of-the-mill, typical State intervention in order 
to try to solve a problem that is real for State legislators. So it is 
a mystery to me as to why we would try to take that ability away from 
  What we are doing is taking away an ERISA exemption for States 
relative to these plans. Why that is important is that ERISA is all 
about the employer-employee relationship. There are important 
responsibilities that flow from employers to employees when they are 
engaging in a retirement plan that is offered through the workplace. 
But the State is not the employer of this individual; the State is 
simply acting as a conduit to get that employee into a private sector 
plan. So the ERISA rules simply do not work. They are a mismatch for 
this State innovation. The Federal Government, through regulation, has 
recognized that.
  Importantly, in my State of Connecticut, which does have one of these 
plans, we provide ERISA-like protections, so the protections you get in 
ERISA, you get through this State innovation. It is just that the way 
in which the Federal Government normally requires it does not make 
sense because the State in this case is just the conduit, not the 

  This sort of seems like a pretty run-of-the-mill exercise of State 
innovative power, a fairly run-of-the-mill exercise of Federal 
regulatory authority to allow for this innovation to happen, and it is 
hard to understand why we are taking it away, why we are taking this 
ability away from 600,000 Connecticut residents who, frankly, will not 
have access to easy retirement savings without it.
  We have known that set-asides in your paycheck work. That is why we 
have provided incentives for employers to do it. But not every employer 
does it. Why? Because if you are a small employer, it just may not make 
sense administratively to establish one of these plans. So States have 
decided to offer it themselves.
  I know that the retirement industry may not love this idea because it 
might not make the same fees on these plans as it would if the plans 
were offered through the employer, but, frankly, these hundreds of 
thousands of people in my State are not going to be the retirement 
companies' customers without this innovation. It is not like these 
State-backed plans are stealing business from the private retirement 
plans. They were never going to be customers without their ability to 
put aside a little bit of money.
  We have a retirement crisis in this country right now, and this is an 
innovative way to solve it. I know this is not yet scheduled for a 
vote, a Congressional Review Act vote that would take away the ability 
of States to offer these plans in a meaningful way, and I really hope 
we think twice about it. It sort of feels like we are just inventing 
CRAs to bring before the Senate and the House. We are kind of scraping 
the bottom of the barrel, and this one just does not make sense. This 
does not make sense.
  Let States that want to pass this innovation, that want to give their 
constituents, their citizens the ability to save through payroll 
deductions, through payroll withholding, the ability to do that. Do not 
do the bidding of the big retirement providers, who may think they are 
going to make more money if the CRA passes, but in reality these folks 
were probably never their customers. Let States move forward with this 
innovation. Let the people of Connecticut and California see how it 
works so that maybe other States can learn from our experience.
  I hope we can come to some agreement to leave this innovation alone 
and move on to some other important issue here and not risk doing 
something that is, frankly, going to exacerbate the retirement crisis 
that exists in this country. Republicans and Democrats should be trying 
to work together on this question of giving people more access to 
retirement plans.
  For all of the things that we fight over, whether it be the 
healthcare law or whether it be a tax cut bill or a budget, this just 
seems like one of these issues in which we should set this CRA aside 
with respect to State innovations and try to find a way to find some 
common ground. I hope that is where we will head. It would really 
matter to my constituents in Connecticut, who are expecting to receive 
the benefit of this newfound access to retirement.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.

                       Nomination of Neil Gorsuch

  Mr. ALEXANDER. Mr. President, I notice my distinguished friend was 
indignant over the Supreme Court debate. I think each of us has a right 
to have his own opinion. Here is mine.
  There is such a thing called the Thurmond-Leahy rule. It has been in 
place for a while. I think it reads that after June of a Presidential 
election year, the Senate will not confirm a

[[Page S2090]]

President's nominees. That is a bipartisan rule that has been enforced 
by the Senate for several years. Senator McConnell moved it up three 
months, from June to March--that is true--even though Democratic 
leaders said that is exactly what they would have done if the shoe had 
been on the other foot.
  Democrats are saying that as a result of that--the 3-month change--
which is what they said they would have done anyway, they are going to 
do something that has never been done before: They are going to deny a 
Supreme Court Justice a nomination by not allowing a majority vote. 
That has never happened in 230 years. Our nominations have always been 
decided by a majority vote. There was a little incident in 1968 with 
Abe Fortas when President Johnson sought to elevate him to Chief 
Justice, but that has been the tradition in the Senate. We have always 
approved Presidential nominees by a majority vote, and we have always 
approved Cabinet members by a majority vote, even controversial ones. 
We have never required them to get 60 votes--ever--and the same with 
Federal district judges. And the same was true with Federal circuit 
judges until the Democrats started using the filibuster to require 60 
votes, as has been well documented here. So I think people need to know 
the facts.
  What the Democrats are proposing to do next week--quite apart from 
the fact that Judge Gorsuch is one of the most eminently qualified 
people we have seen come around in a long time--flies in the face of 
230 years of tradition in the Senate by insisting that a Presidential 
nominee to the Supreme Court requires more than 51 votes to be 
  I looked very quickly back at my own votes. None of us are perfect, 
and I am not asking for any merit badges, but I wonder where the 
Democrats are who are trying to do at least what I was trying to do 
when President Obama was there. I found at least 10 times that I voted 
for cloture--voted to cut off debate--on controversial nominees with 
whom I disagreed, and then I voted against them when the vote was 51.
  With Secretary of Labor Perez, cloture was invoked 60 to 40. If I had 
voted no, that would have denied him his Cabinet position. He is now 
the chairman of the Democratic National Committee. I cannot think of 
any Cabinet member I disagreed more with, other than perhaps the one I 
am about to mention next, but I thought the President deserved to have 
his own nominee, and I thought we ought to respect the tradition of 
never having denied a Cabinet member a position because of a 60-vote 
  Another one was John King, the Education Secretary. I asked President 
Obama to appoint him or somebody of his choosing. I thought we needed 
an Education Secretary for a year even though I have great differences 
with John King. I respect him greatly, but I have differences with him.
  So I got him confirmed as chairman--I don't want to say it that way. 
I asked the President to do it, as chairman of the committee. I saw 
that he had a prompt confirmation, and then I made sure he had enough 
votes to be confirmed--not by much. When it came to cloture, I may have 
even voted for him when it came to it, just because I thought the 
President deserved to have his own appointment.
  Then there was Attorney General Lynch. Cloture was invoked with only 
66 votes. I voted to end debate and have a vote on her.
  Secretary of Defense Chuck Hagel--there was opposition to him. I 
voted no there on confirmation, but I voted to make sure that there was 
a vote. I voted for cloture.
  For two National Labor Relations Board members and a National Labor 
Relations Board General Counsel, cloture was invoked by 64, 65, and 62 
votes--very close. I voted against all three of them for confirmation, 
just as I did Secretary Perez, because I disagreed with them so much. 
But I thought that we ought to respect the fact that we confirm 
Presidential appointees by 51 votes.
  There are three or four others, but I want to mention only one more 
specifically: District Court Judge John McConnell, Jr., from Rhode 
Island. There was an effort on this side of the aisle to deny him a 
cloture vote. I resisted that. I talked to some other Republicans. I 
voted for him for cloture. He got it 63 to 33. Then I voted against him 
for judge.
  The importance of that was if he had had his nomination blocked by 
the cloture vote, he would have been the first Federal istrict judge in 
the history of the court to not have been allowed to have an up-or-down 
vote, majority vote. So I resisted that in that instance. I resisted 
that for Perez. I may have been the deciding vote; there were only 60 
  While I said I am not looking for merit badges, where are the 
Democrats who are willing to vote like that--to preserve the Senate's 
230-year tradition of approving Presidential nominees by a majority 
vote? I think this is a terrible precedent, not justified, and I am 
sorry to see things heading in this direction.
  Now I wish to make some remarks on another matter.
  (The remarks of Mr. Alexander pertaining to the introduction of S. 
761 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Maryland.


  Mr. VAN HOLLEN. Mr. President, I was just listening to my friend, the 
Senator from Tennessee, and I think there are things we can do to 
improve the healthcare system and the Affordable Care Act. I am glad 
that the House soundly defeated the so-called TrumpCare bill, RyanCare, 
whatever you want to call it, but many of us have called for more 
competition in the exchanges through things like a public option. Also, 
I think all of us can agree that we need to reduce the skyrocketing 
costs of prescription drugs, and I think there are other things we can 
do. I welcome that discussion.
  Mr. President, I am here now to talk about something else that is 
currently being done to help millions of Americans save for their 
retirement, to provide for a secure retirement. I know all of us have 
been involved over the years in debates about how we can strengthen our 
retirement security program for all Americans. We really have a three-
legged stool here. One is Social Security. That is a bedrock of our 
retirement system. We need to make sure that we strengthen it, and we 
need to make sure that it is there for all future generations.
  Second, many Americans have the opportunity to have a retirement plan 
through their employer where their employer guarantees them a certain 
defined benefit, a certain income stream when they retire.
  And the third leg of this stool has been Americans' private savings, 
and we want to encourage more Americans to put aside those funds so 
that they can care for themselves and their families when they are no 
longer working.
  That is what brings me to the floor today. Many big employers--
including, I should say, the U.S. Senate and the U.S. House of 
Representatives, and the government--provide their employees with 
things like 401(k) plans. These are ways that people can put aside some 
of their income as they earn it, but put it aside tax-free for their 
retirement. And many millions of Americans--again, especially those who 
work for large employers--have that benefit. But if you work for a 
smaller employer or even a midsized employer, there is a very good 
chance that you do not have easy access to those 401(k) plans, to those 
retirement vehicles that are so essential to saving for retirement. In 
fact, there are about 55 million Americans, according to studies by 
both the AARP as well as the Brookings Institution--about 55 million of 
our fellow Americans who do not have access to those 401(k) vehicles 
and other kinds of savings vehicles through their employers.
  So in response to this problem, a number of States--five States, to 
be specific so far, including the State of Maryland--and some 
municipalities have come up with creative solutions that allow small- 
and medium-sized employers--those who are not currently offering those 
retirement vehicles directly--these State plans allow their employees 
to put aside a little money for their retirement and get the same tax-
preferred benefits as people who work for big companies.
  The reason small and medium-sized companies don't always provide the

[[Page S2091]]

same retirement savings accounts as big companies is that it can impose 
a burden and costs on those small employers. So States have developed 
these other creative platforms to do it.
  In my State of Maryland, this was an incredibly bipartisan process. 
Republican State legislators and Democratic State legislators came 
together and put together this State plan. The Republican Governor of 
Maryland, Governor Hogan, signed the legislation.
  Today, about 1 million Marylanders--including a lot of young people 
who work for startups and other small businesses that don't have the 
wherewithal to provide these retirement savings platform--are 
benefiting by platforms which have been created to put money aside for 
their retirement. People are taking personal responsibility for their 
retirement. People who didn't have that opportunity before through 
their employers now have this vehicle to do it. It doesn't cost the 
Federal Government one penny. Taxpayers at the Federal level don't have 
to put anything in it. It is relatively low cost for the States and 
municipalities as well. They have to just create a platform, and they 
have people from across their States or municipalities benefiting from 
  In order for States to do that, they needed one small change in 
Federal law. Under the administration of President Obama, the 
Department of Labor made this fix to the Federal law which allowed 
these States and municipalities to develop these platforms that helped 
millions of Americans benefit from these tax savings accounts--just 
like, I would point out, every Senator in this body has access to those 
kind of savings accounts.
  So I have a very simple question: Why in the world is it somehow a 
priority for this Senate to take away the access States have given to 
their residents and deny them that opportunity to take personal 
responsibility to put aside funds--tax-preferred funds--in these 
savings accounts to plan for their future? Why would we come down and 
say we are not going to allow this to happen anymore? I thought this 
was the kind of experimentation we want to see at the State level and 
this is the kind of savings that we want people to do to take 
responsibility for their own retirement. Yet here we are about to come 
down with a big foot and say: No, you can't do that.
  I am trying to figure out who is opposing this. I have been looking 
in my office for letters from people who are actually going to take 
responsibility for coming forward to say they want to deny this 
opportunity to save for millions of Americans--an opportunity that 
every Senator here has. It is easy for us. We are part of a big 
employer, the U.S. Government. We have 401(k) accounts, and so do 
people who work for big corporations. We need to extend that same 
opportunity to people who work for small employers and midsized 
employers that don't have the capacity and wherewithal to take that 
upon themselves, but they want their employees to benefit from these 
vehicles. So they have worked with States and municipalities to allow 
it to happen. Why would we ever want to pull the plug on that and deny 
our fellow Americans those opportunities to save for their future?
  I can't figure out for the life of me how this somehow became a 
partisan issue here in the Congress. It wasn't partisan in the State of 
Maryland. Everybody got together and worked this out. Everyone agreed 
this was good for the people of Maryland.
  So I ask our colleagues here to look at this as an opportunity to 
help encourage activities in our States that allow people to take the 
personal responsibility for their future that we are asking them to do. 
I ask all of our colleagues, really, to take a close look at this and 
to try to figure out why it is a bad idea to encourage States and 
municipalities, working with local employers--both small and medium-
sized employers--to do what we have done in Maryland, what other States 
are doing, and what States can do going forward if we don't come down 
and slam the brakes on this innovative idea to help more Americans put 
aside money for their retirement.
  Thank you, Mr. President.
  The PRESIDING OFFICER (Mr. Lee). The Senator from Michigan.
  Mr. PETERS. Mr. President, Michigan is a State that builds things. We 
invented the auto industry and created a new era of manufacturing. My 
State saw the American labor movement grow and fight to deliver the 40-
hour workweek and safe workplace conditions. In Michigan, we work hard, 
and after a lifetime of hard work, we expect to be able to retire with 
  The American dream can mean different things to different people, but 
I believe there are some universal elements. We all want our children 
to prosper and see more opportunity than we have had. While we all need 
to have a secure retirement, we dream of passing on to the next 
generation--whether it is a small business or a family farm, a home 
with the mortgage paid off, or a nest egg that has been built up over 
many decades. I fear this piece of the American dream--the ability to 
enjoy a comfortable retirement on the strength of your lifetime 
earnings--is slipping further and further away for increasing numbers 
of Americans.
  The measures we are considering this week, which would repeal the 
Department of Labor's safe harbor for States and municipalities 
developing retirement plans, would be a step backwards. Generations 
ago, Congress heard the American people and agreed that it was simply 
unacceptable for retired and elderly Americans to live in poverty. The 
solution that followed was Social Security, perhaps the most effective 
anti-poverty program ever created.
  Today, we must meet that challenge once again. We must preserve and 
strengthen Social Security, and I will fight for that every day that I 
am here in the Senate. But a modern, comprehensive retirement policy 
must be more than just a safety net. It must be a ladder to prosperity. 
A ladder provides a sturdy frame to help people climb and reach new 
heights, if they are willing to put forth the effort.
  Unfortunately, far too many Americans lack access to private savings 
plans. Traditional defined-benefit plans--the pensions our parents and 
their parents relied on--are now providing historically low rates. Now, 
more than ever, expanded access to defined-contribution workplace 
retirement accounts is critical to our Nation's economic future. 
Solving the retirement crisis is a complicated puzzle, but one of the 
most important pieces is access.
  Ninety percent of Americans with access to a workplace plan report 
saving for retirement, while just 20 percent of those without access to 
a plan say they have saved. Although this difference should be as clear 
as night and day to everybody, only about half of private sector 
workers have access to a 401(k) retirement plan. This leaves nearly 60 
million Americans without access to a workplace plan. Make no mistake, 
the numbers are clear. Workers without access are disproportionately 
low-income and minority workers.
  In an effort to address this sweeping problem, States and 
municipalities have begun work to create their own programs to support 
retirement savings programs for workers. Recognizing that States are 
truly the laboratories of democracy, the Obama administration's 
Department of Labor put forth policies providing safe harbors to States 
moving forward with these innovative programs.
  Today, instead of working on a bipartisan infrastructure package or 
legislation to support American workers and small businesses, we are 
debating the use of a fast-track procedure to undo these new policies 
and make it harder for cities and States to help tackle the retirement 
savings gap. If a State or city has a good idea that is helping 
Americans--all Americans--save for retirement, I think that is great. 
Why are we blocking States from creating innovative solutions? We 
should allow these programs to move forward so we can help workers 
responsibly save their hard-earned money. We should also allow these 
programs to move forward to see what actually works. The Federal 
Government certainly does not have a monopoly on good ideas, and States 
and cities cannot be the laboratories of democracy if we tie their 
hands. We need big ideas, we need small ideas, and, frankly, we need 
good ideas so we can get to work with what we need to do to solve this 
incredibly difficult problem.
  A secure retirement cannot become a relic of the past. But this 
foundational piece of the American dream will only be true for this 
generation of workers

[[Page S2092]]

if we start working on these solutions now. As our Nation wrestles with 
growing income inequality, we cannot weaken our ladders to prosperity 
and pull out the rungs that help hardworking families take the next 
steps upward. Solving the retirement crisis is about empowering workers 
to do the right thing for their families and for their future, and 
repealing these Department of Labor safe harbors will only move us in 
the wrong direction.
  I urge my colleagues to oppose these resolutions of disapproval.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Ms. WARREN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. WARREN. Mr. President, Republicans are in charge of the Senate, 
and so far they haven't put up for a vote in this Congress a single 
piece of original legislation to help working families--not one. They 
haven't fixed a single piece of our crumbling infrastructure. They 
haven't put Americans back to work. They haven't brought down the 
soaring cost of prescription drugs. And they haven't done a thing to 
help the 55 million Americans who don't have access to a workplace 
retirement account to save for their retirement. But they have been 

  Here is what they have done so far: They have made it easier for 
giant corporations to hide the payments they make to foreign countries. 
They have made it easier for companies to discharge filth into our 
rivers and streams. They have made it easier for Americans suffering 
from mental illness to buy guns. They have made it easier for hunters 
to shoot baby bears and wolf cubs from planes. They have made it easier 
for companies that get big-time, taxpayer-funded government contracts 
to steal wages from their employees. They have made it easier for 
employers to hide injuries their workers suffer on the job. They have 
made it easier for States to divert Federal education dollars away from 
struggling schools and students. They have made it easier for States to 
block people who are out of work from getting unemployment insurance 
payments that they are entitled to by law. And they have made it easier 
to keep local residents from having a say in how Federal lands are 
  Now they are back at it again, this time to overturn a rule that will 
help millions of Americans start saving for their retirement. For 
years, the Republican-controlled Congress has done nothing to help the 
55 million Americans who don't have an employer-provided retirement 
plan save for their retirement. Nothing. Because of this Federal 
inaction, 7 States have passed legislation to provide retirement 
accounts to their constituents, and 23 others are considering 
proposals. The efforts of just those 7 States could expand coverage to 
15 of the 55 million Americans who don't currently have an employer-
sponsored retirement account.
  In addition to these State efforts, three cities are actively 
considering proposals to curb the retirement savings gap, potentially 
covering another 2 million Americans. Extending coverage to 17 million 
Americans would go a long way toward starting to chip away at the 
retirement crisis in this country.
  Today, among working families on the verge of retirement, about one-
third have no retirement savings of any kind, and another one-third 
have total savings that are less than 1 year's income. This is a real 
problem, and Senate Republicans should be working hard to come up with 
solutions to fix it. But if they don't have any ideas of their own, the 
least they can do is step aside and let the hard-working Governors, 
mayors, State treasurers, city councils, and State legislatures 
continue their important efforts to try to solve our retirement crisis.
  Every single time the Senate has come to the floor of this Congress 
to overturn an Obama administration rule, Republican Senators have said 
they were voting to remove burdensome Federal regulations that 
``severely limit the role of State and local governments,'' when local 
governments ``could do a much better job of providing for the people of 
our State.'' So why on earth are they now voting to make it harder for 
cities and States to help their own citizens save for retirement? Why? 
Three words: chamber of commerce.
  The chamber of commerce and the trade associations for the giant 
financial firms have been fighting tooth and nail to kill these 
retirement initiatives. Their armies of lobbyists have been deployed to 
peddle misinformation about what these plans do, all because the giant 
financial firms that the chamber of commerce and the trade associations 
represent are worried that the city and State plans might actually 
offer better investment products with lower fees.
  The American people are not calling their Senators asking us to work 
day in and day out to overturn rules to help them save for their 
retirement; 72 percent of Republicans and 83 percent of Democrats 
support these initiatives. They aren't calling us and asking us to make 
their water dirty or to let their employer put their lives at risk by 
cutting corners on safety either.
  The American voters didn't send us to Washington to work for the 
lawyers and the lobbyists and the giant corporations that keep 
corporate profits soaring by skirting basic regulations.
  This vote may be really good for filling the campaign coffers of 
Senate Republicans, and a few of them may pop champagne corks with 
their buddies at the chamber of commerce after this vote tonight, but 
Americans are watching, and they will be ready to fight back.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. CASEY. 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. CASEY. Mr. President, I ask unanimous consent that I be permitted 
to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                Russia and Trump Campaign Investigation

  Mr. CASEY. Mr. President, I rise to express my grave concern about 
Russian aggression and interference in our political system. My 
concerns have been compounded over the last several weeks by the 
response to these allegations by President Trump and his 
  First, let's step back for a moment. We know that the Russian 
Federation is an adversary of the United States. That is without 
question. Vladimir Putin is what I would like to call a 24-hour bad 
guy. There are a lot of other ways to express it, but that is one way. 
There is not a moment of the day when he isn't using his power to 
undermine our Nation's interests and the interests of freedom and 
democracy across the globe.
  We know that the Russian regime kills journalists, jails and silences 
their critics, and commits war crimes in places like Syria and Ukraine. 
Russia meddles in elections throughout the Western world.
  Mr. Putin has a warped world view. His view is that the freedom and 
democratic rights of tens of millions of people in Europe should be 
subject to the interests of a few in the Kremlin because those 
countries lie within Russia's supposed sphere of influence.
  The work done by our intelligence agencies indicates that Russia 
meddled in our election with the intent of aiding President Trump. We 
know that now. In January, our intelligence agencies concluded:

       We assess Russian President Vladimir Putin ordered an 
     influence campaign in 2016 aimed at the U.S. presidential 
     election. Russia's goals were to undermine public faith in 
     the U.S. democratic process, denigrate Secretary Clinton, and 
     harm her electability and potential presidency. We further 
     assess Putin and the Russian Government developed a clear 
     preference for President-elect Trump.

  That is what our intelligence agencies tell us, and I am quoting 
verbatim from that basic finding.
  President Trump's refusal to accept the assessment of our 
intelligence agencies was deeply concerning--and that is an 
understatement. My concerns were compounded by the fact that President 
Trump ran on the most pro-Russian platform in modern history. Since 
President Trump has taken

[[Page S2093]]

office, he has harshly criticized our allies, from Australia to Mexico, 
yet when it comes to Russia's provocations and war crimes, President 
Trump is silent.
  This deference that President Trump shows to Mr. Putin is troubling 
and, when combined with Russia's meddling in our election, it raises 
profound questions that need answers. That is why I strongly support 
the establishment of an independent commission to investigate Russia's 
interference in our political system, and I believe that the Justice 
Department must appoint a special counsel to investigate this matter as 
  What the American people need to know, once and for all, is at least 
three things: No. 1, what specific actions Russia took to aid President 
Trump during the election; No. 2, whether U.S. persons had knowledge of 
or were involved in these actions; and, finally, No. 3, whether 
President Trump has financial entanglements with Russians associated 
with the Putin regime.
  You could probably add other questions, but I think they are the 
three basic questions we have to answer.
  So this is a grave problem with substantial national security 
implications. My constituents agree, as I am sure is the case in every 
other State. Just since January 1, more than 80,000 Pennsylvanians have 
written to my office about Russia. That is 80,000 Pennsylvanians. These 
are thoughtful letters from Pennsylvanians who are so concerned about 
this issue that they took the time to write.
  A constituent from Cumberland County, right in the middle of our 
State, wrote:

       I am bothered by the reports of Russia trying to interfere 
     with our democracy. I am particularly bothered by a lack of 
     transparency in the administration with news reports of AG 
     Sessions' undisclosed contact with Russia. Russia is having 
     the effect they wanted by shaking confidence in our system.

  That is a constituent from Cumberland County.
  Another constituent from Northampton County, along the eastern side 
of our State, just north of Philadelphia, wrote this:

       All politics aside, the investigation about Russia's 
     actions is a concern to our republic. . . . Ultimately, it 
     does not matter whether our elected officials are democrats 
     or republicans, but it does matter that we all always put 
     America's best interests first.

  If the warnings from the U.S. intelligence community and the pleas 
from 80,000-plus Pennsylvanians aren't enough, then let's look at the 
numerous credible reports of contact between Russian officials and the 
Trump team. This body of reporting grows every day.
  On January 18, McClatchy reported that ``The FBI and five other law 
enforcement and intelligence agencies have collaborated for months in 
an investigation into Russian attempts to influence the November 
election, including whether money from the Kremlin covertly aided 
President-elect Donald Trump, two people familiar with the matter 
  On January 19, the Washington Post reported, ``U.S. 
counterintelligence officials are sifting through intercepted 
communications and financial data as part of a wider look at possible 
ties between the Russian government and associates of President-elect 
Donald Trump, officials said.''
  Then again on January 19, the New York Times reported, ``American law 
enforcement and intelligence agencies are examining intercepted 
communications and financial transactions as part of a broad 
investigation into possible links between Russian officials and 
associates of President-elect Donald J. Trump, including his former 
campaign chairman Paul Manafort, current and former senior American 
officials said.''
  We know that Mr. Trump's former campaign manager, Paul Manafort, 
previously worked for the Russian-backed President of Ukraine, Victor 
Yanukovych. According to an August 2016 report by the New York Times, 
``Handwritten ledgers show $12.7 million in undisclosed cash payments 
designated for Mr. Manafort from Mr. Yanukovych's pro-Russian political 
party from 2007 to 2012, according to Ukraine's newly formed National 
Anti-Corruption Bureau.''
  In February 2017, when confronted by the New York Times about reports 
that Trump associates may have been in contact with Russian officials 
during the election, Mr. Manafort said, ``It's not like these people 
wear badges that say, `I'm a Russian intelligence officer.' ''
  Then there is the case of a former member President Trump's foreign 
policy advisory committee, Carter Page. In September of 2016, Yahoo's 
Michael Isikoff reported, ``U.S. intelligence officials are seeking to 
determine whether an American businessman identified by Donald Trump as 
one of his foreign policy advisers has opened up private communications 
with senior Russian officials--including talks about the possible 
lifting of economic sanctions if the Republican nominee becomes 
president, according to multiple sources who have been briefed on the 
  In an interview with PBS's Judy Woodruff, Mr. Page was asked whether 
he met with Russian officials while he was on the Trump campaign. Ms. 
Woodruff asked, ``Did you have any meetings--I will ask again--did you 
have any meetings last year with Russian officials in Russia, outside 
Russia, anywhere?'' Mr. Page answered, ``I had no meetings, no 
meetings. I might have said hello to a few people as they were walking 
by me at my graduation--the graduation speech that I gave in July, but 
no meetings.''
  Yet after USA Today reported that Mr. Page met with Russian 
Ambassador Sergey Kislyak at the Republican National Convention, Mr. 
Page told MSNBC's Chris Hayes that he would ``not deny'' meeting with 
the Russian Ambassador.
  Furthermore, reporting by both USA Today and CNN helped get to the 
bottom of one of the enduring mysteries of this summer's Republican 
National Convention: why was the effort to insert a provision into the 
party's platform supporting lethal aid for Ukraine defeated? Last 
summer, Mr. Manafort said that the decision to defeat the provision 
supporting lethal aid ``absolutely did not come from the Trump 
  In January of 2017, the Washington Post's David Ignatius reported 
that President Trump's National Security Adviser, Michael Flynn, 
engaged in discussions with Russian Ambassador Sergey Kislyak during 
the transition as then-President Obama was applying sanctions against 
Russia for its meddling in the U.S. elections. After the Russian 
Foreign Ministry vowed retaliation for the Obama administration 
sanctions, it was reported that several calls between Mr. Flynn and 
Ambassador Kislyak took place. The next day, President Putin announced 
he would not retaliate against the U.S. for the sanctions. The Nation 
was told by the Vice President that Mr. Flynn's contact with the 
Russian Ambassador was logistical in nature. Then it was revealed that 
the issue of sanctions may have been discussed. Subsequently, General 
Flynn resigned his position.
  Then, there is the issue of President Trump's associate, Roger Stone, 
who demonstrated in tweets last summer that he may have had advance 
knowledge of some of the hacked material. In October 2016, Mr. Stone 
admitted to a Miami TV station that he had ``back-channel 
communications with WikiLeaks founder Julian Assange.'' Mr. Assange is 
the founder of Wikileaks, the website that Russian hackers appear to 
have used to deposit hacked documents during the 2016 campaign.
  These revelations give credence to a February report by CNN: ``High-
level advisers close to then-presidential nominee Donald Trump were in 
constant communication during the campaign with Russians known to US 
intelligence, multiple current and former intelligence, law enforcement 
and administration officials tell CNN.''
  This summary is an illustrative list of many of the credible reports 
that are out there. Let's review just a few of the reports that have 
come to light since our intelligence agencies released their 
  In November of 2016, the President's spokesman at that time said: 
``The campaign had no contact with Russian officials,'' yet the Russian 
Deputy Foreign Minister had stated that ``there were contacts during 
the campaign.'' On January 19, the New York Times reported that the 
communications of President Trump's former campaign manager, Paul 
Manafort, his former foreign policy adviser, Carter Page, and his 
longtime associate, Roger Stone, were under investigation for contacts

[[Page S2094]]

with the Russians. Yet despite that, President Trump continued to say 
for weeks that all of these reports about an investigation and contacts 
with Russian officials were so-called fake news.
  We have learned that the Trump administration's dismissals of these 
investigations and reports do not align with the facts. It seems that 
the administration has a strategy for all of these allegations--dodge 
and deceive, dodge and deceive.
  After all the dodging and deceiving, sometimes we finally get 
admissions of the truth. Again, the facts are disturbing and have 
meaningful national security implications.
  Here is an example of how these contacts may have actually changed 
policy. This past summer, ABC's George Stephanopoulos asked President 

       Then why did you soften the GOP platform on Ukraine?

  Candidate Donald Trump responded:

       I wasn't involved in that. Honestly, I was not involved.

  In early March, USA Today reported that then-Trump advisers Carter 
Page and J.D. Gordon met with Russian Ambassador Sergey Kislyak at the 
Republican Convention. In an interview with CNN, Mr. Gordon said that 
the effort to remove support for lethal security assistance to Ukraine 
from the Republican Party platform was done expressly to fulfill the 
wishes of then-Candidate Trump.
  Now it is not uncommon for foreign officials to attend conventions. 
It is uncommon and completely, totally inappropriate for them to use 
that platform to shape our Nation's policies by a change in a party 
  The dodging and deception continues. After insisting during his 
confirmation hearing that he had no contacts with Russian officials, it 
was reported that Attorney General Sessions, who was a top leader in 
President Trump's campaign, did indeed meet with the Russian 
Ambassador. There is nothing to hide about meeting with a foreign 
ambassador. That is part of our job as Senators, and Attorney General 
Sessions was a Member of the U.S. Senate. For example, in 2013, I met 
with the Russian Ambassador to advocate for Pennsylvania families torn 
apart by the Russian Government's ban on international adoptions. I was 
there with a significant group of other Senators from both parties. But 
why would Mr. Sessions provide incorrect information to the Judiciary 
Committee, and why wouldn't he immediately correct the record? That is 
a question that we have to ask, and that is a question that deserves an 
  Finally, there is the issue of President Trump himself. We know that 
for many years he has expressed an interest in doing business in 
Russia. In 2008, Mr. Trump's executive vice president for acquisitions 
and development in his business said:

       Russians make up a pretty disproportionate cross-section of 
     a lot of our assets; say, in Dubai, and certainly with our 
     project in SoHo and anywhere in New York. We see a lot of 
     money pouring in from Russia.

  So if one takes all of these reports together, plus the ones I have 
entered into the Record, one has to ask: What is going on? What is 
going on with all this information?
  That is why my constituents and I have questions. That is why we need 
an independent commission and a special counsel appointed by the 
Justice Department. The administration owes the American people 
  We cannot allow my constituent Pam's warning to come to fruition. We 
cannot allow Russia to exploit political differences to shake 
confidence in our democratic system. The United States has a proud 
tradition of rule of law and checks and balances. These are things that 
distinguish us from the autocratic and corrupt regimes around the 
  The longer it takes to get to the bottom of these questions, the 
longer it will be until we can get back to advancing meaningful 
policies to resist Russian aggression and stand with our European 
allies. We need to make a commitment to maintaining and expanding 
sanctions on Russia for a variety of malign activities: No. 1, the 
cyber attack on our elections; No. 2, their--the Russians'--
indiscriminate bombing of civilians in support of the Assad regime in 
Syria; No. 3, their unabated support for separatists in eastern 
Ukraine; No. 4, the Russians' continued illegal annexation of Crimea.
  The American people and the people of Pennsylvania, as well, have had 
enough of dodge and deceive on these issues. They want answers, and the 
only way to get them is by way of an independent commission and a 
special counsel.
  The President and every Republican and every Democrat in the House 
and the Senate in all of Congress need to say once and for all, 
clearly, definitively, unequivocally: We will never allow this to 
happen again, and then work together to make that a reality.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tillis). Without objection, it is so 
  Mr. BLUMENTHAL. Mr. President, I am here on behalf of 55 million 
working Americans who lack access to retirement savings plans through 
their employers. These numbers underscore a very, very uncomfortable 
truth for many Americans--that there is a looming retirement crisis in 
our Nation.
  Congress must do more to preserve, protect, and strengthen retirement 
savings for all Americans. I come to the floor to express my strong 
opposition to the legislation before us, which would do precisely the 
  H.J. Res. 67 would tear down ongoing efforts at the State and 
municipal levels to assist, not obstruct, hard-working Americans in 
preparing for financially stable and rewarding retirements.
  I also want to express my very deep concern about efforts by my 
Republican colleagues to force a vote on H.J. Res. 66 in the very near 
future. I would advise my colleagues to reconsider their taking action 
on both of these misguided proposals right away.
  While many private sector employers have the option to set up and 
their employees have the choice to contribute to their own retirement 
savings accounts, fewer than 10 percent of workers who are without 
access to a workplace plan contribute to retirement savings accounts 
outside of their employers.
  To address this growing issue, in August of 2016, under the guidance 
of the Obama administration, the Department of Labor promulgated what 
has become known as the State-sponsored auto-IRA rule. This rule 
provides critical guidance for States on how to administer programs 
that are designed to improve access to retirement accounts among 
private sector employees. These State-facilitated retirement programs 
would allow State governments to provide automatic enrollment in State-
sponsored IRA programs, with there being the opportunity to opt out at 
any time.
  There are misguided and progressive proposals that seek to overturn 
the critical rulemaking that protects Americans in this process. If 
passed, these resolutions, very simply, will cripple ongoing efforts on 
the State level to ensure that retirement savings opportunities are 
more readily available for all workers.
  In my home State of Connecticut, we have led efforts to find secure 
and innovative ways to address the growing retirement savings gap for 
nearly 600,000 working people in Connecticut who lack access to 
employer-based retirement savings. The Connecticut Retirement Security 
Authority has led this effort. It was created in 2016, and it is based 
on almost 2 years of market research, public hearings, meetings, and 
broad input from employers, potential participants, and representatives 
of the financial sector.
  We are moving in the right direction in Connecticut. Programs that 
represent a strong step in the right direction have been fostered and 
built by encouraging State facilitation with private providers. These 
plans allow workers access to secure, low-cost retirement savings 
accounts in Connecticut. That effort would be set back by these 
proposals to undercut and reverse progress made at the Federal level. 
Incomprehensibly, these bills would severely undercut efforts to 
promote State and city auto-IRA programs. It is a blatant attack on 
these programs and

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on working families in Connecticut and elsewhere.
  I urge my colleagues who believe that Congress should spend time in 
expanding, not limiting, access to innovative solutions to the American 
savings crisis to join me in opposing these resolutions.
  They have broad economic implications. They set back job creation as 
well as economic progress. There are 55 million individuals--many of 
them in Connecticut--who lack the ability to save for retirement 
directly from their paychecks. This gap is exacerbated by the fact that 
nearly 20 percent of people between the ages of 55 and 64 have, 
virtually, zero in retirement savings. That is true of Connecticut and 
every State in our country.
  A lack of retirement savings leads to disastrous results and 
jeopardizes access to adequate meals, healthcare, and other 
necessities. Simply put, no American family and, certainly, no 
Connecticut family should be deterred or discouraged from planning for 
the future by saving responsibly.
  I urge my colleagues to join me in voting no on H.J. Res. 66 and H.J. 
Res. 67 because States and municipalities should have the flexibility 
to implement proven strategies to support hard-working Americans who 
wish to prepare themselves for retirement.

                Russia and Trump Campaign Investigation

  Mr. President, I find in Connecticut--and, I am sure, my colleagues 
find around the country--that Americans are outraged and appalled by 
Russia's disinformation campaign that has been waged against our free 
and fair electoral process. There is no question now--the intelligence 
agencies have confirmed it--that Russia interfered in the campaign of 
this latest election.
  Our electoral process is the bedrock of our democracy. Russian 
interference in our election is an attack on our democracy. Indeed, it 
is an attack on America. Some believe--and I join them in this 
concern--that it is an act of war.
  As appalling as the Russians' actions have been, I am equally--if not 
more--concerned about the ``see no evil, hear no evil'' attitude of 
this administration. It was aided in its election by Russia's campaign 
of disinformation, malign theft, its dissemination of private data, 
propaganda, and cyber attack. That cyber attack was unconscionable and 
unprecedented in its scope and scale.
  Our Nation's intelligence community has provided chilling and 
absolutely horrifying confirmation of this Russian interference in our 
democracy. Yet the White House continually dismisses these reports. 
This week, we are learning that they actually may be actively 
interfering with and trying to redirect efforts by Congress to discover 
the full extent of Russia's cyber intrusion.
  The bottom line here is that only a special prosecutor at the 
Department of Justice can apply sunlight and conduct a vigorous, 
independent investigation. Only a special prosecutor can remove this 
stain on our democracy. Only a special prosecutor can provide our 
Nation with assurance that wrongdoing will be effectively investigated 
and then charged and prosecuted. Only a special prosecutor can give us 
the closure we need and deserve.
  Every day, evidence mounts pointing to the need to investigate these 
Russian ties and contacts with the Trump campaign. The more we learn, 
the more troubled and outraged the American people become.
  Just this week, revelations have surfaced that Representative Nunes, 
chairman of the Intelligence Committee in the House, met on White House 
grounds with a source who showed him secret American intelligence 
reports that he then used to defend President Trump's claims that his 
closest associates were under surveillance by the Obama administration. 
That this information actually came from a meeting at the White House 
has intensified questions about where the information actually 
originated and whether the President's team is actually meddling in the 
congressional investigation. Chairman Nunes's actions have fatally 
tainted the House Intelligence Committee investigation and infected it 
with the virus of partisan bias.
  Just yesterday, we also learned, based on letters obtained by the 
Washington Post, that the Trump administration sought to block former 
Acting Attorney General Sally Yates from testifying to Congress in the 
House investigation, adding additional taint. We all recall she is the 
one who blew the whistle on the real risk of General Flynn being 
blackmailed by the Kremlin. Instead of thanking her, the President 
fired her. After firing her for doing her job, the administration is 
now intent on stopping her as a witness from revealing exactly what the 
President knew about his adviser's ties to foreign interests.
  The House investigation is incontrovertibly compromised by having a 
Trump surrogate running and organizing it and the administration--at 
least in appearance and likely in reality--controlling its access to 
the facts.
  There is a growing body of evidence that clearly and unmistakably 
indicates that the Trump campaign and his associates were in contact 
with Russia during the election, and these deeply troubling claims of 
coordination with a foreign government to influence an American 
election deserve exacting and aggressive investigation.
  The declassified report from the intelligence community clearly 
identifies Russia Today as a state-sponsored propaganda source that was 
integral to Putin's campaign to interfere in that election, and it 
makes it equally clear, and deplorably so, that former National 
Security Advisor Flynn accepted $45,000 to praise Russia Today in 
Moscow and dine with Putin at the network's request.
  We know as well that Attorney General Sessions and Jared Kushner, the 
President's son-in-law and now senior adviser, had unreported meetings 
with Russian officials, including the head of a Russian bank under U.S. 
sanctions. The President's former campaign manager, Paul Manafort, 
funneled millions of dollars into offshore accounts from a Russian 
oligarch through the Bank of Cyprus, which was owned at the time by 
Wilbur Ross, now serving as the President's Commerce Secretary.
  These contacts form a network of facts and suspicion, but more than 
suspicion, there are real sources of information and facts. As Ronald 
Reagan said, ``Facts are stubborn things.''
  These disclosures are all the more reason--indeed, compelling 
evidence--that a special prosecutor is necessary to investigate 
Russia's ties and contacts with the Trump campaign. Immediate, 
aggressive measures to hold Russia accountable and deter further 
aggression must be taken. Those actions must be based on facts as well, 
but we must acknowledge publicly that the need for deterrence requires 
effective responses, appropriate and necessary measures to send a 
message and inflict the kind of cost that is necessary to show Russia 
that we will never accept these kinds of attacks. At stake is not only 
Russia's view of this country and deterrence to further attacks but 
also the credibility and trust of the American people in the Department 
of Justice, and that is where a special prosecutor is absolutely vital.
  I support the work of the Intelligence Committee in the Senate, and I 
trust the members of that committee to do their work responsibly. I 
believe as well that we should have a select committee--or, even 
better, an independent commission--that will make findings of fact, 
produce recommendations, have public proceedings, and then, in the 
interest of full transparency and disclosure, produce a report with 
recommendations that will help provide a path to avoid these kinds of 
attacks on our democracy in the future and potential collusion between 
Americans and those attacks.
  I believe that an independent commission would serve a worthwhile 
purpose, but neither the Intelligence Committee, nor a select 
committee, nor an independent commission can do what is equally 
important, which is prosecute wrongdoers. None of these bodies, whether 
congressional or independent commission, can investigate criminal 
wrongdoing so as to assure an effective and successful prosecution. 
That work must be done with the FBI and supervision of an independent, 
special prosecutor who can investigate vigorously and independently and 
then take action and bring charges if they are warranted.
  I support the investigation of the Intelligence Committee, which 
should do its work, the appointment of a select committee that can 
produce findings of fact and a report and recommendation,

[[Page S2096]]

and an independent commission that can do the same kind of public, 
transparent, open disclosure. A special prosecutor does not produce a 
report; they and the team will produce a prosecution, if it is 
warranted. They are the only ones who can prosecute.
  We cannot stand idle while Russia interferes and threatens our 
political infrastructure, which now includes our electoral system. 
Neither can we stand idle while our Department of Justice is leaderless 
or, worse yet, has a prosecutor who also may be tainted by the fact 
that he reports to the Attorney General or to the President. The 
Attorney General has recused himself, with good reason, because he was 
implicated in allegations surrounding collusion between the Trump 
campaign and the Russian interference.
  The allegations of collusion are serious. They must be investigated, 
and the investigation and potential prosecution must be done by someone 
who is independent--a special prosecutor. Revelation upon revelation 
day after day leaves us with no choice. In fact, we had no choice well 
before now, but the disclosures that have surfaced just within the last 
hours and days confirm that justice will not be vindicated unless we 
have a special prosecutor. That is why I have chosen to block the 
nomination and confirmation of the Deputy Attorney General. I will 
consider doing it with other nominees as well. I feel so strongly--and 
I hope my colleagues do as well--that a special prosecutor is necessary 
to vindicate justice, to make sure that Americans have trust and 
confidence in our Department of Justice and in the ability of the 
United States to protect its democracy and the integrity of its 
electoral process.
  Thank you, Mr. President.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill 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.