(Senate - April 04, 2017)

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[Pages S2180-S2190]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the Duke 
nomination, which the clerk will report.
  The senior assistant legislative clerk read the nomination of Elaine 
C. Duke, of Virginia, to be Deputy Secretary of Homeland Security.
  The PRESIDING OFFICER. Under the previous order, the time until 12 
noon will be equally divided in the usual form.
  The minority whip.
  Mr. DURBIN. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                       Nomination of Neil Gorsuch

  Mr. DURBIN. Madam President, there is a poem that I recall, and it 
goes like this:

     When I was going up the stair,
     I met a man who wasn't there.
     He wasn't there again today.
     I wish that man would go away.

  I thought about that poem when I listened to the majority leader's 
speech about how cooperative he has been when it comes to Supreme Court 
nominations. The name he forgot to mention was Merrick Garland--Merrick 
Garland, who was nominated by President Obama to fill the vacancy of 
Justice Antonin Scalia; Merrick Garland, the only Presidential nominee 
to the Supreme Court in the history of the U.S. Senate to be denied a 
hearing and a vote; Merrick Garland, about whom Senator McConnell said: 
I will not only refuse to give him a hearing and a vote, I refuse to 
even see him; Merrick Garland, who was found unanimously ``well 
qualified'' by the American Bar Association; Merrick Garland, the 
person who received bipartisan support for appointment to the DC 
Circuit Court of Appeals, the second highest court in the land.
  So when the majority leader comes to the floor to talk about how 
cooperative he has been with previous Presidents when it comes to 
Supreme Court nominees, he conveniently omits the most obvious reason 
for our problems this week: the unilateral decision by the majority 
leader to preclude any vote on Merrick Garland to fill the vacancy of 
Justice Scalia.
  I know Judge Garland. I have met with him several times. He is a 
balanced, moderate, experienced jurist who should be on the U.S. 
Supreme Court. We should not be entertaining Neil Gorsuch this week; we 
ought to be celebrating the first anniversary of Merrick Garland's 
service on the U.S. Supreme Court. The reason we are not is that 
Senator McConnell and the Senate Republicans refused us that 
opportunity. They said: No, you cannot vote on that.
  Remember their logic? The logic was: Wait a minute. This is the last 
year of President Obama's Presidency. Why should he be able to fill a 
vacancy on the U.S. Supreme Court when we have an election coming soon?
  That is an interesting argument. There are two things I am troubled 
  I do believe President Obama was elected for 4 years in his second 
term, not for 3, which meant he had authority in the fourth year, as he 
did in the third year.
  Secondly, the Republican argument ignores history. It ignores the 
obvious history when we had a situation with President Ronald Reagan, 
in his last year in office, with regard to a vacancy on the U.S. 
Supreme Court. There were Democrats in charge of the Senate and 
Democrats in charge of the Senate Judiciary Committee, and President 
Ronald Reagan, a lameduck President in his last year, nominated Anthony 
Kennedy to serve on the Court. He sent the name to the Democratic 
Senate, and there was a hearing before the Senate Judiciary Committee 
and a vote that sent him to the Court.
  You never hear that story from Senator McConnell. It is because it 
does not fit into his playbook as to why he would wait for a year and 
refuse to give Merrick Garland a hearing and a vote. The reasoning is 
obvious: Clearly he was banking on the possibility that the electorate 
would choose a Republican President--and that is what happened--so that 
a Republican President--in this case, Donald Trump--could fill the 
vacancy, not Barack Obama.
  So when I hear the speeches on the floor by Senator McConnell about 
his bipartisan cooperation, he leaves out an important chapter--the 
last chapter, the one that brought us to this moment in the Senate.
  I look at the situation before us today, and it is a sad situation 
for the Senate--sad in that we have reached the point in which a 
Supreme Court nomination has become so political, more so than at any 
time in history.
  Where did the name ``Neil Gorsuch'' come from for the Supreme Court? 
It came from a list that was prepared by two organizations: the 
Federalist Society and the Heritage Foundation. These are both 
Republican advocacy groups who represent special interests and are 
funded by special interests. They came up with the names and gave them 
to Presidential candidate Donald Trump. It was a list of 21 names. He 
issued them twice--in March and in September of the last campaign 
year--and Neil Gorsuch's name was on the list.
  The Federalist Society was created in 1982. Nominally, it is an 
organization that is committed to originalism.

[[Page S2181]]

In other words, it looks to the clear meaning of the Constitution, what 
the Founding Fathers meant. They say that over and over again: Just 
look to the Constitution and read it, and then we will know what we 
should do. That was in a speech that was given by Edwin Meese, the 
then-Attorney General in 1985, who explained the Federalist Society's 
  On its face, it sounds at least arguably defensible that there would 
be an organization that is so committed to the Constitution that it 
wants Supreme Court nominees who will follow it as literally as 
possible. Yet, as Justice William Brennan on the Supreme Court said, if 
they think they can find in those musty volumes from back in the 18th 
century all of the answers to all of the questions on the issues we 
face today--here is what he called it--that is arrogance posing as 
  Yet that is what they said the Federalist Society was all about. If 
that were all the Federalist Society were about, then I guess one could 
argue that they ought to have their day in court, their day in choosing 
someone for the Supreme Court, but it is more than that. When you look 
at those who finance the Federalist Society--and it is a short list 
because they refuse to disclose all their donors--you see the classic 
names of Republican support: the Koch brothers, the Mercer family, the 
Richard Mellon Scaife family foundation, the ones who pop up over and 
over again. Why would these organizations be so determined to pick the 
next nominee to fill the vacancy on the Supreme Court? It is because 
there is so much at stake.
  In a Judiciary Committee hearing, my colleague Sheldon Whitehouse 
went through the box score when it came to the Supreme Court and how 
they ruled when given a choice between special interests and corporate 
elites versus average workers and consumers and families. As Senator 
Whitehouse pointed out graphically, in detail, overwhelmingly, this 
Court has ruled for the special interests. Sixty-nine percent of the 
Roberts' Court's rulings are in favor of the U.S. Chamber of Commerce's 
position on issues, according to one study.
  Why would a special interest organization like the Federalist Society 
care? It wants to keep a good thing going, from its point of view. That 
is why this is a different Supreme Court nominee.
  I yield the floor.

                   Recognition of the Minority Leader

  The PRESIDING OFFICER (Mr. Kennedy). The Democratic leader is 

            Congratulating the Senior Senator from Illinois

  Mr. SCHUMER. Mr. President, first, I sat at the back of the room to 
listen to my colleague from Illinois. I know he got up because he 
wanted very much to respond to the majority leader, and I thought he 
did a great job. It was a pleasure to listen, as always, to one of the 
most articulate Members with whom I have ever served in any legislative 
body, as well as his having many other good traits.

                             Equal Pay Day

  Mr. President, today is Equal Pay Day. Unlike many holidays on our 
calendar, Equal Pay Day is not actually a commemoration of some 
achievement. Equal pay for women is still not close to a reality. Women 
still make 79 cents for every dollar a man makes in the same position. 
African-American women are making 64 cents on the dollar. Latina women 
are making 54 cents on the dollar. That is not right. It is holding the 
American dream out of reach for too many women in this country. So 
Equal Pay Day is not a commemoration; it is a reminder that glass 
ceilings are everywhere and that there are hugely consequential and 
tangible barriers that women face every single day that men do not.
  In 2007, the Supreme Court, in a 5-to-4 decision by the conservative 
majority in Ledbetter v. Goodyear, ruled that Lilly Ledbetter could not 
pursue her claim that she was entitled to equal pay. The Lilly 
Ledbetter Fair Pay Act, which reversed this unfair Supreme Court 
decision, was the first bill President Obama signed into law in 2009.

                       Nomination of Neil Gorsuch

  Mr. President, this leads me to the Supreme Court. It is just one of 
so many examples of what is at stake in the nomination of Judge Gorsuch 
to the Supreme Court, which we now debate here on the floor of the 
  I was listening to the majority leader earlier this morning, and I 
cannot believe he can stand here on the floor of the U.S. Senate and 
with a straight face say that Democrats are launching the first 
partisan filibuster of a Supreme Court nominee. What the majority 
leader did to Merrick Garland by denying him even a hearing and a vote 
is even worse than a filibuster. For him to accuse Democrats of the 
first partisan filibuster on the Supreme Court belies the facts, belies 
the history, belies the basic truth.
  My friend Representative Adam Schiff said: ``When McConnell deprived 
President Obama of a vote on Garland, it was a nuclear option. The rest 
is fallout.'' Let me repeat that. Adam Schiff put it better than I ever 
could. ``When McConnell deprived President Obama of a vote on Garland, 
it was a nuclear option. The rest is fallout.''
  Even though my friend the majority leader keeps insisting that there 
is no principled reason to vote against Judge Gorsuch, we Democrats 
disagree. First, he has instinctively favored corporate interests over 
average Americans. Second, he has not shown a scintilla of independence 
from President Trump. Third, as my colleague from Illinois elaborated, 
he was handpicked by hard-right special interest groups, not because he 
called balls and strikes. They would not put all of that effort and 
money into a caller of balls and strikes. These are ideologues who want 
to move America far to the right. He was picked by hard-right special 
interest groups because his views are outside the mainstream.
  According to analyses of his record on the Tenth Circuit, which were 
conducted by the New York Times and the Washington Post, by experts on 
the Court, Judge Gorsuch would be one of the most conservative voices 
ever on the Supreme Court should he achieve that.
  The Washington Post:

       Gorsuch's actual voting behavior suggests he is to the 
     right of both Alito and Thomas and by a substantial margin. 
     That would make him the most conservative Justice on the 
     Court in recent memory.

  That is why the Heritage Foundation and the Federalist Society put 
Judge Gorsuch on their list for President Trump.
  As Emily Bazelon of the New York Times put it in a brilliant article 
that I would urge all of my colleagues to read:

       The reality is that Judge Gorsuch embraces a judicial 
     philosophy that would do nothing less than undermine the 
     structure of modern government--including the rules that keep 
     our water clean, regulate the financial markets and protect 
     workers and consumers.

  I ask unanimous consent to have that article printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 1, 2017]

                  The Government Gorsuch Wants To Undo

                   (By Emily Bazelon and Eric Posner)

       At recent Senate hearings to fill the Supreme Court's open 
     seat, Judge Neil Gorsuch came across as a thoroughly bland 
     and nonthreatening nominee. The idea was to give as little 
     ammunition as possible to opponents when his nomination comes 
     up this week for a vote, one that Senate Democrats may try to 
     upend with a filibuster.
       But the reality is that Judge Gorsuch embraces a judicial 
     philosophy that would do nothing less than undermine the 
     structure of modern government--including the rules that keep 
     our water clean, regulate the financial markets and protect 
     workers and consumers. In strongly opposing the 
     administrative state, Judge Gorsuch is in the company of 
     incendiary figures like the White House adviser Steve Bannon, 
     who has called for its ``deconstruction.'' The Republican-
     dominated House, too, has passed a bill designed to severely 
     curtail the power of federal agencies.
       Businesses have always complained that government 
     regulations increase their costs, and no doubt some 
     regulations are ill-conceived. But a small group of 
     conservative intellectuals have gone much further to argue 
     that the rules that safeguard our welfare and the orderly 
     functioning of the market have been fashioned in a way that's 
     not constitutionally legitimate. This once-fringe cause of 
     the right asserts, as Judge Gorsuch put it in a speech last 
     year, that the administrative state ``poses a grave threat to 
     our values of personal liberty.''
       The 80 years of law that are at stake began with the New 
     Deal. President Franklin D. Roosevelt believed that the Great 
     Depression was caused in part by ruinous competition among 
     companies. In 1933, Congress passed the National Industrial 
     Recovery Act, which

[[Page S2182]]

     allowed the president to approve ``fair competition'' 
     standards for different trades and industries. The next year, 
     Roosevelt approved a code for the poultry industry, which, 
     among other things, set a minimum wage and maximum hours for 
     workers, and hygiene requirements for slaughterhouses. Such 
     basic workplace protections and constraints on the free 
     market are now taken for granted.
       But in 1935, after a New York City slaughterhouse operator 
     was convicted of violating the poultry code, the Supreme 
     Court called into question the whole approach of the New 
     Deal, by holding that the N.I.R.A. was an ``unconstitutional 
     delegation by Congress of a legislative power.'' Only 
     Congress can create rules like the poultry code, the justices 
     said. Because Congress did not define ``fair competition,'' 
     leaving the rule-making to the president, the N.I.R.A. 
     violated the Constitution's separation of powers.
       The court's ruling in Schechter Poultry Corp. v. the United 
     States, along with another case decided the same year, are 
     the only instances in which the Supreme Court has ever struck 
     down a federal statute based on this rationale, known as the 
     ``nondelegation doctrine.'' Schechter Poultry's stand against 
     executive-branch rule-making proved to be a legal dead end, 
     and for good reason. As the court has recognized over and 
     over, before and since 1935, Congress is a cumbersome body 
     that moves slowly in the best of times, while the economy is 
     an incredibly dynamic system. For the sake of business as 
     well as labor, the updating of regulations can't wait for 
     Congress to give highly specific and detailed directions.
       The New Deal filled the gap by giving policy-making 
     authority to agencies, including the Securities and Exchange 
     Commission, which protects investors, and the National Labor 
     Relations Board, which oversees collective bargaining between 
     unions and employers. Later came other agencies, including 
     the Environmental Protection Agency, the Occupational Safety 
     and Health Administration (which regulates workplace safety) 
     and the Department of Homeland Security. Still other agencies 
     regulate the broadcast spectrum, keep the national parks 
     open, help farmers and assist Americans who are overseas. 
     Administrative agencies coordinated the response to Sept. 11, 
     kept the Ebola outbreak in check and were instrumental to 
     ending the last financial crisis. They regulate the safety of 
     food, drugs, airplanes and nuclear power plants. The 
     administrative state isn't optional in our complex society. 
     It's indispensable.
       But if the regulatory power of this arm of government is 
     necessary, it also poses a risk that federal agencies, with 
     their large bureaucracies and potential ties to lobbyists, 
     could abuse their power. Congress sought to address that 
     concern in 1946, by passing the Administrative Procedure Act, 
     which ensured a role for the judiciary in overseeing rule-
     making by agencies.
       The system worked well enough for decades, but questions 
     arose when Ronald Reagan came to power promising to 
     deregulate. His E.P.A. sought to weaken a rule, issue by the 
     Carter administration, which called for regulating 
     ``stationary sources'' of air pollution--a broad wording that 
     is open to interpretation. When President Reagan's E.P.A. 
     narrowed the definition of what counted as a ``stationary 
     source'' to allow plants to emit more pollutants, an 
     environmental group challenged the agency. The Supreme Court 
     held in 1984 in Chevron v. Natural Resources Defense Council 
     that the E.P.A. (and any agency) could determine the meaning 
     of ambiguous term in the law. The rule came to be known as 
     Chevron deference: When Congress uses ambiguous language in a 
     statute, courts must defer to an agency's reasonable 
     interpretation of what the words mean.
       Chevron was not viewed as a left-leaning decision. The 
     Supreme Court decided in favor of the Reagan administration, 
     after all, voting 6 to 0 (three justices did not take part), 
     and spanning the ideological spectrum. After the conservative 
     icon Justice Antonin Scalia reached the Supreme Court, he 
     declared himself a Chevron fan. ``In the long run Chevron 
     will endure,'' Justice Scalia wrote in a 1989 article, 
     ``because it more accurately reflects the reality of 
     government, and thus more adequately serves its needs.''
       That was then. But the Reagan administration's effort to 
     cut back on regulation ran out of steam. It turned out that 
     the public often likes regulation--because it keeps the air 
     and water clean, the workplace safe and the financial system 
     in working order. Deregulation of the financial system led to 
     the savings-and-loans crisis of the 1980s and the financial 
     crisis a decade ago, costing taxpayers billions.
       Businesses, however, have continued to complain that the 
     federal government regulates too much. In the past 20 years, 
     conservative legal scholars have bolstered the red-tape 
     critique with a constitutional one. They argued that only 
     Congress--not agencies--can create rules. This is Schechter 
     Poultry all over again.
       And Judge Gorsuch has forcefully joined in. Last year, in a 
     concurring opinion in an immigration case called Gutierrez-
     Brizuela v. Lynch, he attacked Chevron deference, writing 
     that the rule ``certainly seems to have added prodigious new 
     powers to an already titanic administrative state.'' 
     Remarkably, Judge Gorsuch argued that Chevron--one of the 
     most frequently cited cases in the legal canon--is 
     illegitimate in part because it is out of step with (you 
     guessed it) Schechter Poultry. Never mind that the Supreme 
     Court hasn't since relied on its 1935 attempt to scuttle the 
     New Deal. Nonetheless, Judge Gorsuch wrote that in light of 
     Schechter Poultry, ``you might ask how is it that Chevron--a 
     rule that invests agencies with pretty unfettered power to 
     regulate a lot more than chicken--can evade the chopping 
       At his confirmation hearings, Judge Gorsuch hinted that he 
     might vote to overturn Chevron without saying so directly, 
     noting that the administrative state existed long before 
     Chevron was decided in 1984. The implication is that little 
     would change if courts stopped deferring to the E.P.A.'s or 
     the Department of Labor's reading of a statute. Judges would 
     interpret the law. Who could object to that?
       But here's the thing: Judge Gorsuch is skeptical that 
     Congress can use broadly written laws to delegate authority 
     to agencies in the first place. That can mean only that at 
     least portions of such statutes--the source of so many 
     regulations that safeguard Americans' welfare--must be sent 
     back to Congress, to redo or not.
       On the current Supreme Court, only Justice Clarence Thomas 
     seeks to strip power from the administrative state by 
     undercutting Chevron and even reviving the obsolete and 
     discredited nondelegation doctrine, as he explains in 
     opinions approvingly cited by Judge Gorsuch. But President 
     Trump may well appoint additional justices, and the other 
     conservatives on the court have expressed some uneasiness 
     with Chevron, though as yet they are not on board for 
     overturning it. What would happen if agencies could not make 
     rules for the financial industry and for consumer, 
     environmental and workplace protection? Decades of experience 
     in the United States and around the world teach that the 
     administrative state is a necessary part of the modern market 
     economy. With Judge Gorsuch on the Supreme Court, we will be 
     one step closer to testing that premise.

  Mr. SCHUMER. There are clearly principled reasons to oppose Judge 
Gorsuch, and enough of us Democrats have reasons to prevent his 
nomination from moving forward on Thursday's cloture vote.
  The question is no longer whether Judge Gorsuch will get enough votes 
on the cloture motion; now the question is, Will the majority leader 
and our friends on the other side break the rules of the Senate to 
approve Judge Gorsuch on a majority vote? That question should be the 
focus of the debate here on the floor, and it should weigh heavily on 
the conscience of every Senator.
  Ultimately, my Republican friends face a simple choice: They can 
fundamentally alter the rules and traditions of this great body or they 
can sit down with us Democrats and the President to come up with a 
mainstream nominee who can earn bipartisan support and pass the Senate.
  No one is making our Republican colleagues change the rules. No one 
is forcing Senator McConnell to change the rules. He is doing it of his 
own volition, just as he prevented Merrick Garland from getting a vote 
of his own volition. Senator McConnell and my Republican colleagues are 
completely free actors in making a choice--a very bad one, in our 
  I know my friends on the other side of the aisle are uncomfortable 
with this choice, so they are scrambling for arguments to justify 
breaking the rules. Let me go through a few of these justifications and 
explain why each does not hold up.
  First, many of my Republican colleagues will argue that they can 
break the rules because ``Democrats started it in 2013'' when we 
lowered the bar for lower court nominees and Cabinet appointments.
  Let's talk about that. The reason Majority Leader Reid changed the 
rules was that Republicans had ramped up the use of the filibuster--the 
very filibuster they now decry--to historic proportions. They 
filibustered 79 nominees in the first 5 years of Obama's Presidency. 
Let's put that into perspective. Prior to President Obama, there were 
68 filibusters on nominations under all of the other Presidents 
combined, from George Washington to George Bush. We had 79. Our 
colleagues and Leader McConnell, the filibuster is wrong? There were 
79--more than all of the other Presidents put together. The shoe was on 
a different foot.
  They deliberately kept open three seats on the second most important 
court in the land--the DC Court of Appeals--because it had such 
influence over decisions made by the government. This is the court, 
other than the U.S. Supreme Court, that the Federalist Society and the 
Heritage Foundation hate the most. The deal that a

[[Page S2183]]

number of Senators made in 2005 allowed several of the most 
conservative judges to be confirmed to that court--very conservative 
people. It left a bad taste in my mouth, and I am sure in my 
colleagues' and in many others.

  But then, when President Obama came in, they insisted on not filling 
any additional seats on the court--which, of course, would have been 
Democratic seats--and eventually held open 3 of the 11 seats on that 
court. They said they would not allow those seats to be filled by 
President Obama--an eerie precedent, which the majority leader repeated 
with Merrick Garland. He didn't want the DC Circuit to have Obama-
appointed, Democratic-appointed nominees; he didn't want that on the 
Supreme Court, so he blocked Merrick Garland. He didn't want it on the 
DC Circuit, so they wouldn't let any of President Obama's nominees come 
to the floor.
  Merrick Garland's nomination was not the first time the majority 
leader held open a judicial seat because it wasn't the President of his 
party, and that was not during an election year.
  At the time, I spoke with my good friend from Tennessee, Senator 
Alexander. I asked him to go to Senator McConnell and tell him that the 
pressure on our side to change these rules--after all of these 
unprecedented numbers of filibusters--was going to be large. I said to 
Senator Alexander: Let's try to avoid it. But Senator McConnell and 
Republicans refused all of our overtures to break the deadlock they 
  To be clear, Democrats changed the rules after 1,776 days of 
obstruction on President Obama's nominees. My Republican friends are 
contemplating changing the rules after barely more than 70 days of 
President Trump's administration. We moved to change the rules after 79 
cloture motions had to be filed. They are talking about changing the 
rules after 1 nominee fails to meet the 60-vote threshold.
  So, yes, Democrats changed the rules in 2013, but only to surmount an 
unprecedented slowdown that was crippling the Federal judiciary, and we 
left the 60-vote threshold intact for the Supreme Court deliberately. 
We could have changed it. We had free will then, just as Senator 
McConnell has it now. But we left the 60-vote threshold intact for the 
Supreme Court because we knew and know--just as our Republican friends 
know--that the highest Court in the land is different.
  Unlike with lower courts, Justices on the Supreme Court don't simply 
apply precedents of a higher court; they set the precedents. They have 
the ultimate authority under our constitutional government to interpret 
the law. Justices on the Supreme Court should be mainstream enough to 
garner substantial bipartisan support; hence, why we didn't change the 
rules; hence, why we believe in the 60-vote threshold; and hence, why 
55 or 60 percent of all Americans agree with the 60-vote threshold, 
according to the most recent polls. To me, and I think to most of my 
friends on the Republican side, that is not a good enough reason to 
escalate the argument and break the rules for the Supreme Court.
  Second, as I have mentioned, I have heard my Republican friends 
complain that Democrats are conducting the first partisan filibuster of 
a Supreme Court nominee in history, so that is the reason they can 
justify breaking the rules because Democrats are the ones taking it to 
a new level. Again, I have just two words for my Republican friends: 
Merrick Garland. The Republican majority conducted the first partisan 
filibuster of a Supreme Court pick when their members refused to have 
hearings for Merrick Garland.
  In fact, what the Republicans did was worse than a filibuster. The 
fact is, the Republicans blocked Merrick Garland using the most 
unprecedented of maneuvers. Now we are likely to block Judge Gorsuch 
because we are insisting on a bar of 60 votes.
  We think a 60-vote bar is far more in keeping with tradition than 
what the Republicans did to Merrick Garland. We don't think the two are 
equivalent. Nonetheless, in the history of the Scalia vacancy, both 
sides have lost. We didn't get Merrick Garland; they are not getting 60 
votes on Judge Gorsuch.
  So we are back to square one right now, and the Republicans have 
total freedom of choice in this situation.
  Finally, Republicans have started to argue that because Democrats 
will not confirm Judge Gorsuch, we will not confirm anyone nominated by 
President Trump, so they have to break the rules right now. That is an 
easy one. I am the Democratic leader. I can tell you myself that there 
are mainstream Republican nominees who could earn adequate Democratic 
  And just look at recent history. Justices Roberts and Alito, two 
conservative judges who many of us on the Democratic side probably 
don't agree with, both earned over 60 votes. They got Democratic votes. 
While there was a cloture vote on Justice Alito, he was able to earn 
enough bipartisan support that cloture was invoked with over 70 votes. 
He got only 58 when we voted for him, but the key vote was the cloture 
  Let's have the President consult Members of both parties--he didn't 
with Gorsuch--and try to come up with a consensus nominee who could 
meet a 60-vote threshold. That is what President Clinton did with my 
friend, the Senator from Utah, in selecting Justices Ginsberg and 
Breyer. It is what President Obama did with Merrick Garland.
  Of course, we realize a nominee selected this way would not agree 
with many of our views. That is true. But President Trump was elected 
President, and he is entitled by the Constitution to nominate. But 
Judge Gorsuch is so far out of the mainstream that the Washington Post 
said his voting record would place him to the right of Justice Thomas. 
He was selected by the Heritage Foundation and the Federalist Society 
without an iota of input from the Senate.
  There is a better way to do this. I know it sometimes may seem like a 
foreign concept in our hyperpolarized politics these days, but there is 
always the option of actually consulting Democrats on a nominee and 
discussing a way forward that both parties can live with. We are 
willing to meet anywhere, anytime.
  So my friends on the other side can dredge up these old wounds and 
shopworn talking points if they choose. If Republicans want to conduct 
a partisan, ``they started it'' exercise, I am sure we could trace this 
all the way back to the Hamilton-Burr duel. But at the end of the day, 
they have to confront a simple choice: Are they willing to break the 
rules of the Senate or can they work with us on a way forward? I, for 
one, hope we can find a way to compromise. Judge Gorsuch was not a 
compromise. He was solely chosen without any consultation. So it is not 
that there is a Merrick equivalency.
  My friend the majority leader said: ``I think we can stipulate that 
in the Senate it takes 60 votes on controversial matters.'' If anything 
is a controversial, important matter, it is a selection for the Supreme 
Court, and Senator McConnell has repeatedly stood for the rightness of 
60 votes on important and controversial issues.
  If Senator McConnell wants to change his view on the 60 votes all of 
a sudden and Republicans decide to go along with him, it will not be 
because Democrats started it, because that is not true. It will not be 
because Democrats will not confirm any President Trump-nominated 
Justice, because that is not true. It will be because they choose to do 
so, and they will have to bear the unfortunate consequences.
  Mr. President, I yield the floor.
  Mr. DURBIN. Mr. President, 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.
  Mrs. CAPITO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                         Miners Protection Act

  Mrs. CAPITO. Mr. President, I rise today, as I have on a number of 
occasions in the past, to express the urgent need for action to protect 
the retirement security of our Nation's coal miners. Because of 
bankruptcies that have decimated the coal industry, we have lost over 
22,000 jobs in our State, but more than 22,000 retired coal miners and 
their spouses are at risk of losing their healthcare benefits at the 
end of April.

[[Page S2184]]

  I have visited with retired miners from all across West Virginia to 
discuss this situation. During the February congressional recess, I 
visited the Cabin Creek Health Center in West Virginia. The Cabin Creek 
Health Center serves hundreds of coal miners and their families. They 
provide pulmonary rehabilitation services for miners suffering from 
black lung. They also provide primary care services for miners and 
other members of their community. During my visit, I met with several 
retired miners who would lose their health insurance coverage if 
Congress fails to act. These individuals are suffering from serious 
medical conditions and were unsure how they would afford their 
healthcare if they were to lose their current coverage.
  Just 2 weeks ago, I met with about a dozen retired miners from West 
Virginia who came to Washington to support the Miners Protection Act 
and to stand up for their hard-earned retirement benefits. Other groups 
of West Virginia miners have come to Washington over the past few 
months. All have carried one message to Congress: Keep the promise of 
our lifetime health benefits. On March 1, thousands of miners received 
notice that their health insurance would be terminated in 60 days. Most 
of these same people received that very same message just last October. 
As I listen to their stories, it is hard to imagine the worry these 
notices cause for miners and their families.
  In December 2016, Congress included language in the continuing 
appropriations legislation that preserved health coverage for these 
retired miners for just 4 months. While that provision kept mining 
families from losing their health coverage--which is good--at the end 
of last year, a permanent solution is critically needed.
  The 4-month provision from the December CR expires at the end of this 
month. It is vital--vital--that Congress take action within the next 
few weeks to provide healthcare and peace of mind for these miners in 
West Virginia and across coal country. Our retired miners deserve their 
promised healthcare coverage and should not have to receive another 
cancellation notice or another Band-Aid solution. We have a bipartisan 
vehicle for action. I have worked closely with Senator Joe Manchin, 
Senator Rob Portman, and others to introduce and promote the bipartisan 
Miners Protection Act, which would preserve healthcare and pension 
benefits for our miners. Our bill passed the Senate Finance Committee 
last year by a bipartisan vote of 18 to 8. I also would like to thank 
the majority leader, Senator Mitch McConnell, because he has introduced 
legislation that would provide a permanent healthcare solution for our 
  With all of us pulling together and with us working together, I am 
confident the Senate will act before the end of this month to continue 
these critical healthcare benefits for our miners. I ask my colleagues 
for their support in addressing this important issue for our working 
  The PRESIDING OFFICER. The Senator from Texas.

                       Nomination of Neil Gorsuch

  Mr. CORNYN. Mr. President, yesterday the Senate Judiciary Committee 
voted out the nomination of Judge Neil Gorsuch to fill the vacancy on 
the Supreme Court left by the death of Justice Scalia. During the 
meeting, as the Presiding Officer knows, our Democratic colleagues 
trotted out the same old tired arguments we have heard time and again 
about Judge Gorsuch.
  In the end, though, none of those arguments hold water, and of course 
many of them aren't even about him. Instead, these arguments reveal how 
our colleagues across the aisle are grasping for reasons to justify an 
unprecedented partisan filibuster of a Supreme Court Justice.
  Some object to the nomination of Judge Gorsuch because they claim he 
refuses to answer specific questions. But I ask: How would any of us 
feel if the judge before whom we might later appear had previously, in 
order to get a confirmation of his nomination, made certain promises of 
how he would judge that case when presented at a future date? We would 
all feel more than a little bit betrayed and even cheated if the judge 
had prejudged our case before he even heard it. The judge is simply 
engaging in a common practice for Supreme Court nominees. They steer 
clear of any questions that may pertain to cases they may have to rule 
on later. It is a matter, as the Presiding Officer knows, of judicial 
ethics, and we wouldn't have it any other way.
  Justice Ruth Bader Ginsburg set this precedent early on. During her 
confirmation hearing in 1993, she said she didn't want to give any 
hints or previews about how she might vote on an issue before her. So 
she politely and respectfully declined. Others followed her example, 
and Judge Gorsuch is, of course, doing precisely the same.
  By any fair review, Judge Gorsuch has a history of 10 years as a 
judge sitting on the Tenth Circuit Court of Appeals out of Denver, CO. 
He has a history of interpreting the law fairly, basing his judgments 
on the law and the facts, without regard to politics and without 
respect to persons.
  That brings me to this argument that somehow he is against the little 
guy. Clearly, a review of the records demonstrates that this is not so. 
But, again, how are judges supposed to perform? Are they supposed to 
see the litigants--the parties to a lawsuit--in their court and say: 
Well, you have a big guy and you have a little guy, and I am always 
going to vote or render a judgment for the little guy without regard to 
the law or the facts?
  I realize that sometimes our colleagues can weave a story that seems 
somewhat sympathetic when it comes to the fact that not everybody is 
guaranteed a win in court. As a matter of fact, when there are two 
parties to a lawsuit, one of those parties is likely to be disappointed 
in the outcome. But that is what judges are there for. That is what 
they are supposed to do. They are supposed to render judgments, without 
regard to personal preferences or politics or without regard to their 
sympathies, let's say, for one of the parties to the lawsuit.
  Judge Gorsuch even said this during his hearing: No one will capture 
me. No one will capture me--meaning that no special interest group or 
faction would derail him from following the law, wherever it may lead. 
That is why Judge Gorsuch is universally respected. That is why he was 
confirmed by voice vote 10 years ago to the Tenth Circuit Court of 
Appeals. No one objected to Judge Gorsuch's confirmation to a lifetime 
appointment on the Tenth Circuit Court of Appeals.
  Again, as the Presiding Officer knows, the Supreme Court of the 
United States only hears about 80 cases, give or take, a year. Most of 
the hard work gets done in our judicial system at the district court 
level and at the circuit court level, and almost all of the cases end 
in circuit courts, like the Tenth Circuit Court of Appeals, on which 
Judge Gorsuch serves. That is not to say that the Supreme Court is not 
important--it is--in resolving conflicts between the circuits or ruling 
on important questions of law to guide all of the judiciary and to 
settle these issues for our country, at least for a time, and maybe 
even permanently when it comes to constitutional interpretation.
  Judge Gorsuch enjoys broad support from across the political 
spectrum, especially from his colleagues and members of the bar.
  For 13 years, I served on the State judiciary in Texas, with 6 years 
as a trial judge and 7 years as a member of the Texas Supreme Court. 
When I heard that Judge Gorsuch had participated in 2,700 cases on a 
three-judge panel and 97 percent of them were unanimous, that told me 
something special about this judge. It takes hard work to build 
consensus on a multijudge panel, whether it is three judges or nine 
judges, like the Supreme Court. I think what we are going to see out of 
this judge is not somebody who is going to decide cases in a knee-jerk 
fashion but somebody who is going to work really hard to try to build 
consensus on the Supreme Court of the United States.
  That is really important to the Supreme Court's respect as an 
institution of our government. What causes disrespect for our judiciary 
is when judges act like politicians, when they make pledges of how they 
will decide cases ahead of time or they campaign, in essence, for votes 
based on ideological positions.
  Judge Gorsuch is the opposite of that, and that is the kind of judge 
America needs right now in the Supreme Court. That is why later on this

[[Page S2185]]

week, on Friday, Judge Gorsuch will be confirmed.
  In spite of all the evidence in support of the nominee's intellect 
and qualifications, without regard to the bipartisan chorus urging his 
confirmation, the Democratic leader has decided to do everything he can 
to prevent us from even having an up-or-down vote on his nomination. 
Unfortunately, he will be making history in urging his Democratic 
colleagues to engage in a partisan filibuster against a Supreme Court 
justice. In our Nation's long, rich history, there has never been a 
successful partisan filibuster of a Supreme Court nominee. Now, some 
people want to talk about Abe Fortas back in 1968, which was totally 
different. But there has never been a successful partisan filibuster of 
a Supreme Court justice until, apparently, this week on Thursday--not 
one of them.
  Not one of my Republican colleagues mounted a filibuster when 
President Obama nominated Justice Sotomayor or Justice Kagan. Both 
received an up-or-down vote. That is because that has been the 
customary way this Chamber has treated Supreme Court nominees in the 
past. Only four times in our Nation's history has a cloture motion 
actually even been filed. But cloture was always achieved because, on a 
bipartisan basis, enough votes were cast to allow the debate to end and 
then to allow an up-or-down vote on the nominee.
  To show how new this weaponization of the filibuster has become, back 
when Clarence Thomas was confirmed to the Supreme Court of the United 
States, he got 52 votes--52 votes--and was confirmed and now serves on 
the Supreme Court. Back when he was confirmed, no one even dreamed of 
its use. It was theoretically possible, but no one dreamed of the idea 
that someone would raise the threshold for confirmation from a 51-
majority vote to 60.
  Our colleagues have made it quite clear that they don't want to 
support any nominee from this President. So it is not even just about 
Judge Gorsuch. It is about any nominee this President might propose to 
the Supreme Court. And I think what it boils down to is this: Our 
Democratic colleagues haven't gotten over the fact that they lost the 
election. I think it really isn't much more complicated than that. They 
adamantly resisted participating in the legislative process. They dug 
their feet on every Cabinet nomination and now on the Supreme Court 
nomination. All they know is to obstruct because they haven't gotten 
over the fact that Hillary Clinton isn't President of the United 

  They keep bringing up Merrick Garland's name. Judge Garland is a fine 
man, a good judge who serves on the DC Circuit Court of Appeals, but 
you would have to go back to 1888 to find a time when someone was 
nominated in a Presidential election year with divided government and 
where that person was confirmed.
  What we decided to do upon the death of Justice Scalia is to say that 
the Supreme Court is so important that we are going to have a 
referendum on who gets to nominate the next Justice on the Supreme 
Court. Our Democratic friends thought for sure it would be Hillary 
Clinton. When it turned out to be Donald Trump, well, all bets were 
off, and they were in full opposition mode. But we would have respected 
the right of a President Hillary Clinton to fill that nomination 
because that is what we said was at stake in the election. I think it 
had a big impact on whom got elected on November 8 as President of the 
United States and who would fill that vacant seat and any future vacant 
seats on the Supreme Court.
  So here is the problem. If Judge Gorsuch is an unacceptable nominee, 
can you imagine any nominee by this President being acceptable to our 
Democratic colleagues? I can't, because Judge Gorsuch is about as good 
as you get when it comes to a nominee. He is exactly the type of person 
we should hope to see nominated to the Supreme Court.
  So it is time for our Democratic colleagues to accept reality and not 
to live in some sort of fantasy land and not to try to punish good 
people like Judge Gorsuch, who has done an outstanding job, because 
they are disappointed in the outcome of the election.
  So here is the bottom line. Our Democratic friends will determine how 
we get to an up-or-down vote on Judge Gorsuch. If they are genuinely 
concerned about the institution of the Senate, they will provide eight 
votes to get cloture to close off debate, they will decline to 
filibuster the judge, and they will allow an up-and-down vote on this 
imminently qualified nominee.
  I am holding out hope that more thoughtful and independent Democrats 
will think better of the Democratic leader's strategy. Several already 
have, and I commend them for it. I hope more will come around to that 
idea, but as I and others have said before, regardless of whether they 
do, Judge Gorsuch will be confirmed. But it is up to the Democrats to 
determine just how we get that done.
  I see a friend from Vermont here. I won't take much longer. I want to 
take about 3 or 4 minutes, maybe 5 minutes, to debunk some of the myths 
about how we got here.
  I have in front of me an article written by Neil Lewis dated May 1, 
2001. The title of this New York Times story is ``Washington Talk; 
Democrats Readying for Judicial Fight.'' It is dated May 1, 2001. That 
was, of course, in the early days of the George W. Bush administration. 
What it says is that 42 of the Senate's 50 Democrats attended a private 
retreat in Farmington, PA, where the principal topic was forging a 
unified party strategy to combat the White House on judicial nominees.
  Mr. Lewis goes on to quote one of the people there who said: ``They 
said it was important for the Senate to change the ground rules'' by 
which judicial nominees were confirmed. And they did as a result of 
that meeting, which was led by Laurence Tribe of Harvard Law School, 
Cass Sunstein of the University of Chicago, and Marcia Greenberger, 
codirector of the National Women's Law Center. Senator Schumer, the 
present Democratic leader, and others, cooked up a new procedural 
hurdle for President George W. Bush's judicial nominees, and we 
remember what happened after that. It became almost routine for our 
Democratic colleagues to filibuster President Bush's nominees.
  Ultimately, there came a meeting of a group called the Gang of 14, 
where there was a deal worked out that some of President Bush's 
judicial nominees were confirmed and others were returned and not 
confirmed. There was a decision made at that time by the Gang of 14, a 
bipartisan group, that there would be no filibuster of judicial 
nominees, absent exceptional circumstances. That was the language that 
they used--``absent exceptional circumstances''--that let us get by 
that obstacle and those filibusters for a time.
  The next major development occurred in 2013, when President Obama 
really wanted to see on the DC Circuit Court of Appeals--the primary 
circuit court that reviewed administrative decisions--more of his 
Democratic nominees on that court. So in a new and unprecedented 
fashion, Senator Harry Reid changed the cloture rules once again--so-
called the Reid Rule. For what purpose? It was a naked power grab. It 
was to pack the DC Circuit Court of Appeals--one of the least busy 
circuit courts in the country--in order to have judges confirmed by 51 
Democratic votes that would rubberstamp President Obama's 
administrative actions during his administration. And sadly, it worked. 
They did just that.
  So in a way, we are coming full circle, back to what the tradition in 
the Senate was before the year 2000, before Democrats went to this 
retreat led by liberal legal activists who cooked up this idea that you 
could filibuster judges, and they tried to impose a requirement of 60 
votes for confirmation when, in fact, the Constitution contemplates a 
majority vote, or 51 votes for confirmation.
  Some have said this represents the end of comity in the Senate. I 
don't believe that. Some have said this threatens the end of the 
legislative filibuster or cloture requirement. I don't believe that 
either. There is a big difference between a nominee by a President that 
is an up-or-down vote--confirm or don't confirm. There is a big 
difference between that and legislation, which by definition is a 
consensus-building process by offering an amendment, by offering other 
suggestions to build that consensus and get it passed.
  You can't amend a nominee. All you can do is vote up or down. So I 

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believe restoring the status quo ante--going back before 2000 and 
restoring the 200-year-plus tradition of the Senate where you don't 
filibuster judges--I don't see that as a bad thing. I don't see it as 
the end of the legislative filibuster. It is completely apples and 
  It is true that 51 Senators will be able to close off debate and 
confirm Judge Gorsuch, and we will see that happen later this week. It 
also means that the next Democratic President can nominate a Supreme 
Court nominee, and that person will be confirmed by 51 votes. Again, 
this has been the 200-plus-year tradition of the Senate. I don't see 
that as the end of the Senate. I don't see this as somehow damaging our 
country--the restoration of the status quo before 2000, when our 
Democratic colleagues decided to weaponize the filibuster and use it to 
block judges based on this trumped-up idea that 60 votes would be 
required rather than 51.
  I look forward to confirming Judge Gorsuch later this week. He is a 
fine man and a very good judge. He has exactly the sort of record we 
would want to serve on the Court. No, he is not a liberal activist. 
Clearly, Hillary Clinton, if she had been elected, would have nominated 
somebody different. That is one reason why we choose whom we choose for 
our President, because of the kinds of nominations they will make, and 
I must say President Trump has chosen well in Neil Gorsuch.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.
  Mr. SANDERS. Mr. President, I rise today to oppose the nomination of 
Judge Neil Gorsuch to the Supreme Court of the United States. After 
meeting with Judge Gorsuch and having a long and pleasant conversation, 
after hearing his testimony before the Judiciary Committee, and after 
carefully reviewing his record, I have concluded that I cannot support 
a man with his views for a lifetime seat on the Supreme Court.
  The Supreme Court is the most important judicial body in this 
country. The decisions that it reaches, even on a 5-to-4 vote, have a 
profound impact on all Americans, on our environment, and on our way of 
life. As we decide this week as to how we are going to cast our votes 
regarding Judge Gorsuch, it is important to understand how that vote 
for Judge Gorsuch--for or against him--will impact the lives of the 
people of our country.
  Let me give you just a few examples as to what is at stake. Seven 
years ago, in a 5-to-4 decision, the Supreme Court ruled in a case 
called Citizens United, and in that case, by a 5-to-4 decision, the 
Court said that billionaires and corporations could spend as much money 
as they wanted on the political process. This decision, as all 
Americans know, opened the floodgates of corporate money, of money from 
the billionaire class, such that the wealthiest people in our country 
today can now elect candidates who represent their interests and not 
the interests of ordinary Americans.
  That decision, Citizens United, is undermining American democracy, 
and in my view, it is moving us toward an oligarchic form of society in 
which a handful of the wealthiest people in this country--the Koch 
brothers and others--now have the power not only to control our economy 
but our political life as well. In my view, Citizens United must be 
overturned, and we must move back to a nation where our political 
system is based on one person, one vote, not on the ability of 
billionaires to buy elections.
  Based on my conversation with Judge Gorsuch and a review of his 
record, do I believe that he will vote to overturn Citizens United? 
Absolutely not. Further, I suspect that he will vote to undermine our 
democracy even further by supporting the elimination of all 
restrictions on campaign finance, something which the Republican 
leadership in this body wants.
  What the Republican leadership is striving toward is eliminating all 
campaign finance restrictions, such that billionaires can say to 
somebody: I am going to give you $500 million to run for the U.S. 
Senate from California, and you work for me--no independent 
expenditures. I will select your campaign manager, your speech writer, 
your media adviser, your pollster. You are my employee.
  That is what the Republican leadership here wants. They want to 
undermine all campaign finance laws, and I believe that Judge Gorsuch 
will move this country in that way, a more and more undemocratic way.
  Further, when we talk about the political process, it is important to 
point out that in 2013, again by a 5-to-4 vote, the Supreme Court 
gutted the 1965 historic Voting Rights Act, a law which was passed to 
combat racial discrimination in voting in a number of States. What the 
Court said, finally, is that in the United States, you have the right 
to vote no matter what the color of your skin is, a historic step 
forward in making this country the kind of country that it must become.
  Well, as a result of that 5-to-4 Supreme Court decision in 2013 
gutting the Voting Rights Act, literally days after, we had Republican 
Governors and Republican legislatures all over this country, under the 
guise of fighting voter fraud, passing laws--everybody knows this--
intentionally designed to make it harder for people of color, for poor 
people, for young people, for older people to vote in elections.
  In America in the year 2017, it is not too much to ask that all of 
our people who are eligible to vote be able to vote without harassment, 
without roadblocks, without barriers being placed in front of them.
  I know it is a radical idea, but it is called democracy. It is called 
democracy. It says that if you are eligible to vote, we want you to 
vote. We want you to participate. It says that in America, where we 
have one of the lowest voter turnout rates of any major country on 
Earth, we want more people to be participating in the political 
process, not fewer people. There is nothing I have seen in Judge 
Gorsuch's record or in his recent statements to suggest to me that he 
is prepared to overturn this disastrous decision on the Voting Rights 
  In 1973, we all know, the Supreme Court decided Rowe v. Wade and 
declared that women have a constitutional right to control their own 
bodies. That decision has been subsequently affirmed by multiple cases 
as recently as last June.
  In his confirmation hearings, Judge Gorsuch refused to state if he 
believed Roe v. Wade was good law and should be upheld. Based on his 
statements and general philosophy, I believe there is a strong 
likelihood that Judge Gorsuch would vote to overturn Roe v. Wade and 
deny the women of this country the constitutional right to control 
their own bodies. This would be an outrage. I do not want to be a party 
to allowing that to happen.
  In addition, under Chief Justice John Roberts, the Supreme Court has 
time and again voted in support of corporate interests and against the 
needs of the working people of our country. After reviewing Judge 
Gorsuch's record, I believe he will continue that trend.
  In a case called TransAm Trucking, Judge Gorsuch argued that a 
trucker was properly fired by his employer for abandoning his cargo at 
the side of the road after his truck broke down and he nearly froze to 
death waiting for help. Judge Gorsuch literally believed that this man 
should have had to choose between his life and his job, and by choosing 
his life--not freezing to death--he deserved to lose his job.
  In another case, Judge Gorsuch ruled that a university was correct to 
fire a professor battling cancer rather than grant her request to 
extend her sick leave. I find these decisions troubling.
  At a time of massive income and wealth inequality, when so many 
working people throughout this country feel powerless at the hands of 
the wealthy and the powerful and their employers, we need a Supreme 
Court Justice who will protect workers' rights and not just worry about 
corporate profits. I fear very much that Judge Gorsuch is not that 
  I listened carefully to what my friend, Senator Cornyn of Texas, had 
to say about this entire process. I have to say that in his remarks 
there was a whole lot of obfuscation because there is a simple reality 
that we are going to have to deal with in the Senate this week. 
Everybody knows, and Senator Cornyn made the point, that under Harry 
Reid, the former Democratic leader, the rules, in fact, were changed. 
They were changed because of an unprecedented level of Republican 
obstructionism, making it impossible for President Obama to get almost 
any of his nominees appointed.

[[Page S2187]]

  Let's not forget that in the midst of that controversial decision--
and it was a controversial decision--the Democratic leader had the 
power also to say that we will waive the 60-vote rule regarding Supreme 
Court nominees. Democrats had the power, and they chose not to exercise 
that power in ending that rule--although, of course, they could have 
done that. I think the reason was that the Democratic leadership 
appropriately and correctly believed that on an issue of such 
magnitude, the appointment of a Supreme Court Justice, it is important 
that there be bipartisan support. But right now, it appears that the 
Republican leadership is going to do what the Democratic leadership did 
not do; that is, waive that rule and get their judge appointed with 51 
  So I would suggest to the Republican leader that instead of trying to 
push this nominee through with 50-some-odd votes, it might make more 
sense that, rather than changing the rule, change the nominee, and 
bring forth someone who, in fact, can get 60 votes.
  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.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  Mrs. SHAHEEN. Mr. President, last month I introduced bipartisan 
legislation with Senator Todd Young of Indiana to create greater 
transparency about foreign individuals and organizations that are 
operating in the United States to advance the interests of foreign 
governments, including governments that are hostile to the United 
  In particular, our bill will give the Department of Justice new and 
necessary authority to investigate potential violations of the Foreign 
Agents Registration Act by RT America, the U.S. branch of RT News or 
Russia Today News.
  The Foreign Agents Registration Act was passed back in the late 1930s 
in response to concerns about Nazi propaganda being disseminated in the 
United States without people knowing what it was. It is absolutely 
appropriate today for us to take a look at what Russia and other 
countries may be doing to our news.
  RT America, which broadcasts from studios here in Washington and is 
available on cable TV across the United States and across the world, 
for that matter, is one of the most high-profile assets in Vladimir 
Putin's vast $1.4 billion propaganda machine. According to the U.S. 
intelligence community, the Kremlin selects the staff for RT and 
closely supervises RT's coverage, including disinformation and false 
news stories designed to undermine our democracy.
  Here we have a photo that shows exactly what I believe seems to be 
happening with RT. This photo was taken from a declassified U.S. 
intelligence report, and it shows RT's editor-in-chief--and former 
Putin campaign staffer, by the way--Margarita Simonyan briefing Putin 
on RT's facilities. So clearly he is interested.
  Well, I believe the American people have a right to know if a Russian 
Government entity is exploiting our first amendment freedoms to harm 
our country. It is galling that RT news has publicly--publicly--boasted 
that it can dodge our laws by claiming to be financed by a nonprofit 
organization and not the Russian Government.
  Well, what my bill--our bill--would do is strengthen the Foreign 
Agents Registration Act by giving the Department of Justice authority 
to compel foreign organizations to produce documentation to confirm 
funding sources and foreign connections. This is investigative 
authority that has been recommended by the Department of Justice 
inspector general, the Government Accountability Office, and the 
Project on Government Oversight. Our bill would create transparency by 
giving Justice the authority it needs to investigate RT America and 
publicly expose its ties to the Kremlin.

  The audacity of Russia's interference in Western democracies, 
including extensive meddling in our 2016 Presidential election, is 
deeply alarming, and we have learned that Russia's influence campaign 
reaches tens of millions of unsuspecting Americans. False news stories 
can end up on our Facebook timelines and our Twitter feeds. They shape 
the political conversations that we have with our friends at the 
supermarket and our colleagues at work.
  These are just a few of the headlines from RT. This one is actually 
from Sputnik, which is another Russian news outlet. They show the 
extent to which these false news stories are being spread around. This 
one talks about how ``1,000s Turkish forces surround NATO's Incirlik 
air base for `inspection' amid rumors of coup attempt,'' which suggests 
that we were involved in that coup attempt.
  ``FBI wiretapped Trump Tower in search of `Russian mobster.' ''
  ``Spying on Trump: CIA Whistleblower Points Finger at Clapper, 
Brennan, Comey.''
  ``Ukrainian Su-25 fighter detected in close approach to MH17 before 
crash.'' You will remember that this was the plane crash over Ukraine--
that the Russians shot down.
  During our Presidential campaign in 2016, dozens of narratives and 
false news stories originated in Russia--for instance, this one, the 
baseless story that the Obama administration launched a coup against 
the Turkish Government from the U.S. airbase in that country.
  Earlier, RT News ran numerous reports on supposed U.S. election fraud 
and voting machine vulnerabilities, claiming that the results of the 
U.S. elections could not be trusted and did not reflect the people's 
  Well, researchers have traced these and other stories to a common 
source: the Kremlin's sophisticated, multifaceted propaganda empire, 
which reaches some 600 million people across 130 countries and in 30 
  If you watch RT News, you will agree that it is not clear whether you 
are watching a U.S. news station or a Russian station because it has 
slick production values. It is arguably the jewel in the crown of this 
propaganda empire.
  According to the U.S. intelligence community report declassified in 

       The Kremlin has committed significant resources to 
     expanding the [RT News'] reach, particularly its social media 
     footprint. . . . RT America has positioned itself as a 
     domestic US channel and has deliberately sought to obscure 
     any legal ties to the Russian government.

  A prime objective of this propaganda barrage is to influence U.S. and 
European public opinion, create confusion, and shape election outcomes.
  The Associated Press has identified a building in Moscow where an 
estimated 400 internet trolls--fluent in English and well-versed in 
American politics--work 12-hour shifts, creating false narratives and 
fake news stories. These stories are then seeded on the internet, they 
get validated, and they get passed on by popular websites and 
eventually end up on our radios, TVs, and smartphone screens.
  In an incident earlier this month, a discredited former CIA employee 
went on RT News to charge that President Obama had asked British 
intelligence to spy on Donald Trump. Well, this false news story was 
then spread by legal commentator Anthony Napolitano on the FOX News 
show ``Fox and Friends,'' which is regularly watched by the President. 
The claims were then cited by President Trump and White House Press 
Secretary Sean Spicer to defend the President's claims that his 
predecessor had wiretapped Trump Tower.
  Well, we know that during testimony before Congress 2 weeks ago, the 
NSA Director, ADM Michael Rogers, agreed with our British allies that 
the original RT News story was utterly ridiculous.
  At an Armed Services Committee hearing last month, Gen. Philip 
Breedlove, Retired, the former Supreme Allied Commander in Europe, told 
us that when Russian-backed forces shot down Malaysian Airlines Flight 
17 over Ukraine in 2014, the Russians put out four stories within two 
news cycles placing the blame on the Ukrainian Government and others. 
This is the headline that we see from RT. The general said it took 2 
years for

[[Page S2188]]

the West to finally debunk these false news stories.
  We know that Russia interfered in our 2016 Presidential election. We 
know that a Russian influence campaign was one aspect of that 
interference. Our intelligence community has concluded that RT America 
is an arm of the Russian propaganda juggernaut, operating openly in our 
country and taking full advantage of our First Amendment freedoms.
  I am sure we would all agree that everyone in the United States, in 
every organization, has a right to speak, write, and broadcast freely. 
That is what our First Amendment says. We are a resilient democracy. We 
are confident that our values and institutions will prevail in the free 
marketplace of ideas. Our Constitution protects the right of 
individuals and organizations to spread those Russian viewpoints, 
disinformation, and even outright lies, but the American people have a 
right to know if RT America is a Russian propaganda organ that takes 
its direction from the Kremlin. They have a right to know who is 
funding their operations.
  RT has publicly boasted that it uses a shell nonprofit corporation to 
dodge U.S. laws. This legislation, the Foreign Agents Registration 
Modernization and Enforcement Act, would put an end to that charade. 
The legislation Senator Young and I recently introduced would give the 
Department of Justice the authority it needs to request documentation 
from RT News on funding sources and foreign connections.
  As we see here, clearly the legislation has hit a nerve because 
Kremlin spokesman Dmitry Peskov defended RT News, and Russia's State 
Duma is considering measures to retaliate.
  What RT says about our legislation is that ``US senator wants to 
probe RT as a `foreign agent' . . . What's next, public executions''? 
Well, that is ridiculous. The editor-in-chief at RT News has said that 
my legislation is a ``persecution of dissenting voices.'' As I said, 
that is just nonsense. I welcome dissenting voices. That is what our 
First Amendment and the United States are all about. But it is not 
reasonable or acceptable for an individual or organization working in 
the United States on behalf of a hostile foreign government to conceal 
funding and direction that it receives from that government.
  Vladimir Putin is not going to stop us from enforcing our laws and 
protecting our country. We have a responsibility to expose RT News, RT 
America, and the entire panoply of tactics that Russia has used to 
interfere in our 2016 election and that they continue to currently use 
to sow confusion and distrust and spread around stories which pretend 
to be news but which are not accurate.
  Make no mistake, the Kremlin's influence campaign is an ongoing 
enterprise, and to the extent that it is successful, that it can 
operate under the radar screen, it will become even more brazen and 
more aggressive in the future.
  In testimony before the Senate Armed Services Committee last 
December, Dr. Robert Kagan of the Brookings Institution said that 
Russia's broader objective is to subvert Western democracies, and we 
see that going on now in Europe. He said: ``For the United States to 
ignore this Russian tactic, and particularly now that it has been 
deployed against the United States, is to cede to Moscow a powerful 
tool of modern geopolitical warfare.'' That was a direct quote.
  This is a profound test for our country. Our democracy has been 
attacked and continues to be under attack from this kind of news that 
is being put out by a Kremlin-funded organization which is a hostile 
foreign power. We need to understand the Kremlin's tactics, and we need 
to expose this propaganda here in the United States, including RT 
America. To that end, I urge my colleagues to support the Foreign 
Agents Registration Modernization and Enforcement Act. Let's give the 
Department of Justice the tools it needs to investigate and expose RT 
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.

                       Nomination of Neil Gorsuch

  Mr. DAINES. Mr. President, today I am joining my colleagues on the 
floor with a bit of confusion, a bit of disappointment, and, frankly, a 
lot of questions. I am referring to the confirmation of Neil Gorsuch as 
the next Supreme Court Justice.
  As a Senator, one of the most consequential votes I will cast is a 
vote to confirm a U.S. Supreme Court nominee. It is a lifetime 
appointment to our Nation's highest Court.
  I recently spoke with some students back in Montana, some FFA 
students. The average age 17, 18 years old. God willing, Neil Gorsuch 
may serve on the Court for 30 or more years. These FFA students' 
children and perhaps even grandchildren will be part of Neil Gorsuch's 
time on the Court, given that he likely will serve for three decades or 
  As it stands today, the Senate is on the precipice of confirming Neil 
Gorsuch to be our next U.S. Supreme Court Associate Justice. However, 
as the news has been reporting, as our Twitter feeds are overflowing 
with information, it looks as though my colleagues on the other side of 
the aisle are caving to the pressures of the far left, and they are set 
to unleash an unprecedented filibuster.
  I have met with Judge Gorsuch. I watched his confirmation hearings. 
What I have seen and what most Americans agree--Judge Neil Gorsuch has 
been incredibly transparent, he has been accessible, and he is the 
right man for the position. He is mainstream. He is a westerner. He is 
committed to judicial independence. He has a brilliant legal mind--that 
is without dispute. He is exceptionally qualified. In fact, the 
American Bar Association unanimously rated Judge Gorsuch as ``well 
qualified.'' That is its highest rating.
  He has met with nearly 80 Senators. Prior to his hearing, he provided 
the Judiciary Committee over 70 pages of written answers about his 
personal record. He provided 75,000-plus pages of documents, including 
speeches, case briefs, opinions, and written works going as far back as 
his college days. The White House archives produced over 180,000 pages 
of email and paper records related to Judge Gorsuch's time at the 
Department of Justice.
  Judge Gorsuch sat for three rounds of questioning, totaling nearly 20 
hours, in committee. As the American people watched Judge Gorsuch 
before that committee, they saw an exceptionally qualified nominee for 
the highest Court in the land, someone who was bright, who was kind. I 
would argue that Judge Gorsuch's mind, his intellectual capacity, is 
only exceeded by his heart. This is a kind and independent jurist.
  When he came before the Judiciary Committee, this was the longest 
hearing of any 21st-century nominee. He answered nearly 1,200 questions 
during his hearing, which is nearly twice as many questions posed to 
Justices Sotomayor, Kagan, or Ginsburg. He was given 299 questions for 
the record by Democrats on the Senate Judiciary Committee--the most in 
recent history of any Supreme Court nominee. Judge Gorsuch did all of 
this with the utmost integrity and with transparency and humility. Yet 
here we are, with Democrats engaged in unprecedented obstruction, 
refusing to give Neil Gorsuch an up-or-down vote.
  The Senate has only ever employed a cloture motion for a Supreme 
Court nominee four times in modern history. We voted on cloture when 
Justice Alito was nominated in 2006. We did the same in 1968, 1971, and 
1986. In 1991, Clarence Thomas was confirmed on a 52-to-48 vote, and in 
2006, Samuel Alito was confirmed on a 58-to-42 vote. In fact, when 
President Obama was in the White House, Republicans did not filibuster 
a nominee. This body confirmed Sonya Sotomayor in 2009 by a vote of 68-
to-31 and confirmed Justice Kagan by a rollcall vote of 63-to-37 in 
2010. We did not filibuster.

  Let me remind folks that cloture is in place to stop debate, not to 
stop a vote. Cloture was put in place to speed the Senate up, end 
debate, and move to a vote, not to stop a vote. It was never intended 
to be a stall tactic or something to obstruct this body.
  This bears repeating. Cloture was put in place to speed up the 
process, to prevent obstruction.
  This Chamber has never had a partisan filibuster to a Supreme Court 
nominee. Let me say that again. This Chamber has never had a partisan 
filibuster to a Supreme Court nominee.

[[Page S2189]]

  So here we are today, with no other option but to invoke this so-
called nuclear option to put an eminently qualified individual on the 
U.S. Supreme Court. Judge Gorsuch is the definition of a mainstream 
judge. In more than 2,700 cases in which he has participated in the 
Tenth Circuit, 97 percent of them have been decided unanimously; in 
fact, he was in the majority 99 percent of the time. Yet Senate 
Democrats would rather play politics and place the demands of extreme 
liberal interests over ensuring regular order.
  Let's talk about what we are and what we are not doing. We are in the 
Senate, a Chamber I am honored to serve in, representing more than 1 
million Montanans. We operate on a set of Parliamentary criteria based 
on things that have happened before. Therefore, we are going to 
establish a new precedent; we aren't changing the rules. This isn't 
happening for the first time. Let us remember that in November of 2013, 
Senate majority leader Harry Reid established a new precedent of how 
many votes are necessary on executive branch nominees, with the 
exclusion of Supreme Court picks.
  What is even more shocking to me is that over the past few weeks, 
through the hearing process, through the debate and discussions about 
Judge Gorsuch on the floor, and with support from across my State of 
Montana--let me just name some of those organizations and people in 
support of Judge Gorsuch: the Montana Chamber of Commerce; four of 
Montana's Tribes--the CSKT, the Crow Tribe, Fort Belknap and Fort Peck; 
the Montana Farm Bureau, Judge Russell Fagg of the 13th judicial 
district, Judge Jeffrey Langton of the 21st judicial district, Judge 
John Larson of the 4th judicial district, State senator Nels Swandal, 
retired judge of the 6th Judicial District; the Montana NRA members; 
the Montana Grain Growers Association and the Montana Wool Growers 
Association; the Montana Stockgrowers Association; our attorney general 
in Montana, our auditor in Montana, our speaker of the Montana House. 
This is a very mainstream group of Montanans, leaders back home who are 
in support of Judge Gorsuch. Yet my colleagues are rejecting the will 
of the American people, rejecting the will of Montanans, filibustering 
this nomination, and not even allowing for an up-or-down vote.
  The American people deserve a Supreme Court Justice who upholds the 
rule of law and will follow the Constitution. The American people 
deserve a Supreme Court Justice who doesn't legislate from the bench. 
The American people deserve Judge Neil Gorsuch to serve on the U.S. 
Supreme Court.
  Thank you, Mr. President.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TESTER. 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. TESTER. Mr. President, I ask unanimous consent to be allowed to 
speak for up to 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                        Internet Privacy Rights

  Mr. TESTER. Mr. President, I rise today with a warning about S.J. 
Res. 34. This measure undermines the privacy of all Montanans and all 
Americans. It is a measure I strongly oppose because it takes the refs 
off the field, leaving consumers at the whim of internet service 
providers. It allows these companies to sell our data--to sell my 
data--and to snoop through your search history and to track the sites 
we visit. In other words, it allows internet companies to make a profit 
by invading your privacy. It gives them the ability to collect and sell 
your physical location, information about your children, your health, 
finances, Social Security number, and web browsing history. In fact, 
this legislation even extends to apps and your social media accounts.
  Following the vote that we had here on this floor, a Republican State 
senator from Buffalo, MT, proposed an amendment to our State budget to 
push back against this irresponsible resolution. In my home State of 
Montana, folks on both sides of the aisle are deeply concerned about 
their right to privacy. Now folks you don't even know can have access 
to the websites you visit, and they can have this access without your 
  This is another troubling step that folks in Congress have taken this 
year to violate the rights of privacy of law-abiding citizens. We 
already have a CIA Director who has advocated for the most intrusive 
acts of the PATRIOT Act. We have a Supreme Court nominee before us who 
supports the government's ability to reach into the private lives of 
law-abiding Americans. Now Congress is rolling out the red carpet for 
major corporations to collect and sell our personal online information.
  Enough is enough. I am here today to provide a voice for all 
Montanans and all Americans who value their right to privacy, who 
expect their elected officials to defend civil liberties, to stand up 
for constitutional rights, and who do not want private information 
collected and shopped around like a used book on Amazon.
  When the President decided to sign this resolution last night, he 
ushered in the latest significant threat to our right to privacy. Now 
it is the responsibility of service providers to protect our personal 
information online.
  I think folks in Montana and across this country have the right to 
question the priorities of those who supported this resolution. 
Everyone has a fundamental right to privacy, and the government 
shouldn't be in the business of violating those individual rights, 
especially when doing the bidding of big companies looking to make more 
profits at the expense of people's privacy.
  I want it to be known in this body that Montanans don't want anyone 
snooping around in their private lives, neither the government nor 
corporations. It is fundamental to our Montana values. Protecting 
online privacy is critical to the integrity of basic, fundamental 
freedom, of fundamental civil liberty. I urge all my colleagues to make 
their voices heard on this critical issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  (The remarks of Mr. Barrasso pertaining to the introduction of S. 826 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. BARRASSO. I yield the floor.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the Duke nomination?
  Mr. BARRASSO. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Georgia (Mr. Isakson).
  The PRESIDING OFFICER (Mr. Cruz). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 85, nays 14, as follows:

                      [Rollcall Vote No. 103 Ex.]


     Van Hollen


     Cortez Masto

                             NOT VOTING--1

  The nomination was confirmed.

[[Page S2190]]

  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.