(Senate - April 04, 2017)

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[Pages S2309-S2352]
From the Congressional Record Online through the Government Publishing Office []


  Pursuant to rule IV, paragraph 2, the hour of 12 noon having arrived, 
the Senate having been in continuous session since yesterday, the 
Senate will suspend for a prayer from the Senate Chaplain.
  The Chaplain, Dr. Barry C. Black, offered the following prayer:
  Let us pray.
  God of the Heavens, who guides through the boundless skies the 
certain flight of water fowl, we need Your guidance in our legislative 
branch today.
  Give our lawmakers the wisdom to do what is right. May they not put 
party before country or partisanship before patriotism. Lord, be for 
them a shield so that they will have confidence in Your wisdom, even 
during this challenging season. Give them a reverential awe that seeks 
to please You in all they think, say, and do.
  Lord, surround the families and victims of the Syrian chemical 
attacks with Your unfailing love.
  We pray in Your merciful Name. Amen.
  The PRESIDING OFFICER (Mrs. Ernst). The Senator from Maryland.
  Mr. CARDIN. Madam President, I take this time to explain to the 
people of Maryland and our Nation my views on Judge Neil Gorsuch to be 
an Associate Justice of the Supreme Court of the United States.
  There is no more important responsibility that a Member of the Senate 
has than the advice and consent of an Associate Justice of the Supreme 
Court of the United States. Of the many important responsibilities we 
have, this is one of the most important responsibilities.
  I have taken this on to try to understand as much as I can about 
Judge Gorsuch, to understand the dynamics of what his membership on the 
Supreme Court would mean, because I recognize it is not just an 
appointment for this term of Congress. This is a lifetime appointment, 
and it is very possible that he, if confirmed, will serve on the 
Supreme Court for a generation. So his impact on the workings of the 
Supreme Court is something that is extremely important to each Member 
of the Senate.
  I think many of us are looking for an Associate Justice who can bring 
about more consensus on the Supreme Court, who can try to deal with 
some of the great divisions in our Nation in a way that represents the 
values of our Constitution, that will allow our Nation to move forward 
in a united way.
  We also recognize that the Senate must give an independent evaluation 
of a Supreme Court Justice. This is not because the President of your 
party nominated someone to the Supreme Court, whether you support or 
oppose; it is the independent review process that each Senator 
undertakes to determine whether the nominee should get our support.
  So what I look at is someone who would be a mainstream jurist, who is 
sensitive to the civil rights of all Americans, who would understand 
the importance of our Constitution, which has been a Constitution that 
has expanded rights and not one that we would look at ways to move in 
the wrong direction on extending constitutional protections--that is, 
move backward rather than forward.
  First, let me start by stating that I am troubled by the process 
President Trump followed in nominating Neil Gorsuch to the Supreme 
Court. During his campaign, he talked about a litmus test for Supreme 
Court Justices, that they must be pro-life in the mold of Justice 
Scalia. The list that was submitted to him in which Judge Gorsuch was a 
part was proposed by the Heritage Foundation and the Federalist 
Society. That is not a good way to start a process of bringing in a 
consensus nominee to the Supreme Court of the United States.
  To my knowledge, there was no consultation with any Democrats prior 
to the nomination being made. The reason why consultation with all 
Members of the Senate is important is that if you engage in real 
understanding as to what the Senate--and we represent the entire 
country--is looking for in a Supreme Court Justice, you have a much 
better chance of ending up with a nominee who is going to enjoy broader 
support, bipartisan support, real bipartisan support in the U.S. 
Senate, and then the 60-vote threshold does not become a hurdle.
  There is a reason we have the rules we do in the Senate, and the 60-
vote concept on a controversial nominee is so that we don't end up with 
an extreme candidate who would end up being on the Supreme Court of the 
United States, that there must be that process that would generate 60 
  So despite my concern about the process that was initiated by 
President Trump in the nomination, I have tried to look at all of the 
opportunities to understand Judge Gorsuch's record and his likely 
actions as a member of the Supreme Court. I took the time to meet with 
Judge Gorsuch, and I found that interview, that process, to be 
extremely helpful in understanding his judicial philosophy. I monitored 
the hearings that took place in the Senate Judiciary Committee, and I 
found that testimony to be helpful. I reviewed the testimony of experts 
who had submitted both verbal and written comments in regard to Judge 
Gorsuch. I have reviewed his extensive legal record. We do have an 
extensive legal record that I am going to comment about that went into 
my own process in determining whether I can support him.
  I came to the conclusion that I could not support Judge Gorsuch to be 
an Associate Justice on the Supreme Court of the United States because 
he is not a mainstream candidate. I am concerned that he would put 
corporate interests before individual rights. The strength of our 
Constitution is in the individual. Individual rights should be 
paramount to special interests or corporate interests.
  I saw in his legal opinions a hostility toward environmental 
interests, women's health, marginalized students with disabilities, and 
other vulnerable types of individuals, that had me greatly concerned.
  I was particularly concerned about whether he could separate his 
political views from his legal views. This is an extremely important 
point. We want our Justices on the Supreme Court not to be influenced 
by the politics around us.

[[Page S2310]]

  In the legislative branch, it is perfectly legitimate to take into 
consideration political views. The President of the United States is 
nominated by a political party; that is understood. But the Supreme 
Court--the Justices on the Supreme Court need to leave their political 
views outside of their responsibilities. I was deeply troubled, after 
reading the opinions of Judge Gorsuch and his writings, that he would 
not be able to separate his political views from his legal views.
  I was concerned about whether he would truly be an independent check 
on the Presidency. We know that President Trump is testing the 
constitutional reach of his office. We have seen that in some of the 
Executive orders he has issued. And I have little confidence by his 
responses at the hearings that Judge Gorsuch would be an independent 
voice toward the President of the United States.
  Let me cite some examples to fill in the blanks on what I am saying. 
Judge Gorsuch challenges the Chevron deference doctrine. In the 
Gutierrez case, he indicates that judges rather than agencies should be 
basically administering our laws. The longstanding deference to 
agencies to interpret our law has allowed agencies to carry out their 
mission. Without that authority, it is extremely challenging to see how 
an agency can carry out the missions of laws we have passed. Judge 
Gorsuch raises questions as to whether that document is still relevant.
  Let me make it clear. Who benefits from the Chevron doctrine? The 
Chevron doctrine has allowed agencies to protect workers' rights, 
protect our environment, protect consumers, food safety, and the list 
goes on and on. Each of our States has examples to show how important 
the Chevron doctrine has been. In my State of Maryland, the Chesapeake 
Bay is critically important to Maryland's economy, critically important 
to the character of our State we have in Maryland and our future. The 
protection of the public health of the Chesapeake Bay has very much 
been advanced by the Chevron deference doctrine.
  Judge Gorsuch wrote: ``Chevron appears to qualify as a violation of 
the separation of powers.'' Then he argued that its ``primary rationale 
is no more than a fiction.'' Looking at what he has said about a 
fundamental document that is there to protect our environment, protect 
workers, protect public health, versus what Justice Scalia once 
explained--and I quote from Justice Scalia: ``In the long run, Chevron 
will endure and be given its full scope, because it more accurately 
reflects the reality of government and thus more adequately serves its 
needs.'' In the Gutierrez case, Judge Gorsuch was showing a more 
activist conservative agenda than Justice Scalia.
  Let me move on to Citizens United. We have talked about Citizens 
United probably more than any Supreme Court case on the Senate floor. 
We know it is a 5-to-4 Supreme Court decision. We know it opened up the 
floodgates for dark money, allowing corporations to have constitutional 
rights which we thought were only for individuals.
  In the Riddle case, Judge Gorsuch announced a strict scrutiny 
standard to political contribution limits that quite frankly would make 
the Citizens United case even worse and would gut campaign finance law 
limits. I think each of us should be concerned about that decision.
  Let me move on to the TransAmerican Trucking case. Here, Judge 
Gorsuch was in dissent. He was in the minority. What he basically said 
was that a truckdriver had to sacrifice his life in order to protect 
his job; otherwise, he could be fired. What I mean by that, as I think 
many of our colleagues know, but let me say to those who might not be 
totally familiar, the truckdriver found himself abandoned because the 
brakes of his trailer were frozen in subzero temperatures. He contacted 
his dispatcher for help and after several hours recognized that his 
life was in danger because of hypothermia. He did not have adequate 
heat in his cab.
  He had one of three choices. He could try to maneuver the cab and the 
trailer with frozen brakes, maybe costing himself his life or the lives 
of other people on the road; he could remain as he was instructed by 
the dispatcher and perhaps freeze to death; or he could do what I think 
any reasonable person would do: He disconnected the cab, took care of 
making sure he was safe, warmed himself up, and returned to the trailer 
in order to complete the mission. For that, he was fired, and Judge 
Gorsuch said that was acceptable. That is an extreme opinion and one 
that gives us great pause as to how Judge Gorsuch will act on the 
Supreme Court of the United States.
  Let me talk about NLRB v. Community Health Services, wherein Judge 
Gorsuch was again in the dissent. It had to do with backpay for 
workers. In this opinion, he showed real hostility to workers and 
unions--something that had me greatly concerned.
  Another case that received a great deal of publicity in this body was 
Hobby Lobby. I raise it here for one principal reason. What the Court 
was saying and Judge Gorsuch was agreeing with was that the religious 
protection that is provided under the Constitution--that it is more 
important for a company to be able to exercise that religious freedom 
than the employees. Once again, one of my principal concerns is whether 
Judge Gorsuch will protect the rights of individuals or whether he will 
side on behalf of business. Clearly, in the Hobby Lobby case, he 
decided on business, to the detriment of women's rights, the LGBT 
community, and others.
  In the Planned Parenthood Association of Utah case, he showed a 
direct hostility to Planned Parenthood. Quite frankly, this case is 
very difficult to understand because Judge Gorsuch would have allowed 
the Governor to cut off funds even though the case had been settled and 
the parties had not asked to have the case retried.
  We talk about activism and that we do not want to see activist 
judges. To me, that demonstrates that Judge Gorsuch, indeed, will be an 
activist judge in his trying to move a particular political agenda.
  In Endrew F. v. Douglas County School District, which is a case that 
came in during the confirmation hearing process, we had a severely 
autistic child, and Judge Gorsuch was responsible for the absurd 
reading of the de minimis benefit of defending against private 
placement. The Supreme Court rightly rejected that logic on an 8-to-0 
  Justice Roberts wrote the opinion about the IDEA law in that there 
are protections for disabled students in our school system. Judge 
Gorsuch would turn back the progress that we have made on civil rights 
and on constitutional protection.
  As I mentioned earlier, I am very concerned about whether Judge 
Gorsuch can keep his political views separate from what he says--how he 
acts as a potential Justice on the Supreme Court of the United States. 
I go to a 2005 National Review article in which he wrote:

       American liberals have become addicted to the courtroom, 
     relying on judges and lawyers rather than elected leaders and 
     the ballot box as the primary means of effecting their social 
     agenda. . . . This overweening addiction to the courtroom as 
     the place to debate social policy is bad for the country and 
     bad for the judiciary.

  I mention that particular case and quote Judge Gorsuch because we do 
not want a judge to side with either being a liberal or a conservative. 
We do not want a judge to say: I have a responsibility to promote an 
agenda as a judge. We do not want a judge to be able to take a 
political view and take that onto the bench. Whether it is a person 
whom we agree with politically or disagree with politically, we want to 
have an independent judiciary. This National Review article causes me 
grave concern as to whether Judge Gorsuch can, in fact, be that neutral 
person on the Court.
  Judge Gorsuch appears to be an activist judge and will become an 
activist judge and will turn back progress to protect individual 
constitutional rights. That is something that gives me grave concern. 
It is the reason I cannot support this nominee to be an Associate 
Justice of the U.S. Supreme Court.
  Let me turn to process for one moment, because it looks as though, 
sometime tomorrow, we are going to be called upon to vote on a cloture 
motion. I want to comment on that if I might.
  As I said earlier, to me, Judge Gorsuch is not mainstream. He will 

[[Page S2311]]

corporate interests above individual interests. He shows a hostility 
toward the environment and women, health, women's health, et cetera. He 
has political views that, I think, he would not be able to 
differentiate, and he would not be an independent check and balance in 
our political system.
  For all of those reasons, it seems appropriate to me that this is why 
we have a 60-vote threshold--to make sure that we do not take extreme 
nominees and allow them to be confirmed by a partisan vote. We want to 
have a broader consensus, and Judge Gorsuch did not earn that broader 
  There are additional considerations here, and this goes back a few 
years with the Republican leadership. What they did to President 
Obama's judicial nominations must be underscored because this is not in 
a vacuum. We did not get to this place in a vacuum from what has 
happened already but in our going back to President Obama when his 
district court nominees were delayed--in some cases, totally blocked--
and required a record number of cloture motions to have been filed and 
acted upon--a record number. We had, as I understand, more clotures and 
more filibusters of President Obama's nominees by Republicans than we 
did in the entire history of the U.S. Senate.
  There has been a direct effort by the Republican leadership to 
filibuster judicial nominees. That is wrong. It should not have been 
done. Yes, there are reasons for some but not for the record numbers 
that were done. You should be able to allow for the comity.
  Quite frankly, in 2013, the Republican leader told President Obama: 
No more DC Circuit Court judges. Let me repeat that. In 2013--this was 
the first year of the President's term--the Republican leader said: No 
more DC Circuit Court judges. We had 3 vacancies in the DC Circuit 
Court; 8 of the 11 had been filled, and 3 were vacant, and it had 
nothing to do with the nominees. They just said that they were not 
going to consider any of them, and they used a filibuster to block any 
filling of these positions.
  First, I quote from Chief Judge Henry Edwards when he talked about 
the DC Circuit:

       The review of a large, multi-party, difficult 
     administrative appeal is the stable judicial work of the DC 
     Circuit. This long distinguishes the work of the DC Circuit 
     from the work of other circuits. It also explains why it is 
     impossible to compare the work of the DC Circuit with other 
     circuits by simply referring to the raw data of case filings.

  Chief Justice Roberts noted that about two-thirds of the cases before 
the DC Circuit involve the Federal Government in some civil capacity. 
That figure is less than 25 percent nationwide. He also described the 
DC Circuit's unique character as a court with the special 
responsibility to review legal challenges of the conduct of the 
national government.
  My point is clear. This is the second most important court in our 
land, and in the first year of President Obama's term, the Republicans 
announced that they would filibuster any attempt to put any judge on 
this circuit. Then we had the ultimate filibuster by the Republicans, 
and that was Merrick Garland.
  In February 2016, after Justice Scalia's death, a nominee was 
submitted to us by President Obama who was acknowledged to be 
mainstream, acknowledged to be well qualified, acknowledged to be a 
consensus nominee, and he got the ultimate filibuster. Most of the 
Republicans in the Senate would not meet with him. He did not have a 
committee hearing or a committee vote, and he did not have a floor 
vote. That was the ultimate filibuster. It was wrong, particularly when 
we know that he would have received 60 votes.
  So you cannot compare Judge Gorsuch with Judge Garland because, 
unlike Judge Garland, Judge Gorsuch does not share the same evaluation 
of being able to be a consensus, mainstream candidate who would receive 
a 60-vote threshold.
  For all of these reasons, if the majority leader is going to pursue 
the cloture vote on the Gorsuch nomination, I will not vote in favor of 
cloture. I would hope that we would be able to return to the comity 
that is important in the U.S. Senate, but we recognize there are times 
in which you should have a 60-vote threshold. When the President of the 
United States goes outside of the norms and the process has already 
been employed by the Republicans, I urge my colleagues to rethink the 
course that we are on.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. SCHATZ. Madam President, when our country was founded, 
corporations were on the minds of no one. They are not mentioned in the 
Constitution or the Bill of Rights, and when the topic finally came up 
to the Supreme Court, Chief Justice John Marshall called corporations a 
``mere creature of the law.''
  People have certain unalienable rights. Corporations do not. We 
established corporate personhood so that companies could raise capital 
and enter into contracts, but nobody ever thought that this term that 
was used--``personhood''--actually meant that corporations were people. 
They are not. It is not complicated. Corporations do not eat. They do 
not sleep. They do not worry about their children or their elderly 
parents. They do not get sick. They do not retire, and they do not have 
complex motivations. In fact, under the law, they have only one 
motivation, which is to maximize profits.
  Any logical person knows that corporations are not people, but in 
Judge Gorsuch's America, they are.
  There is no doubt that he is a very smart person, but he, actually, 
had a hand in creating this theory that corporations have the same 
rights as human beings--that they are, in fact, people. We are supposed 
to pretend that this premise is not insane, but it is crazy, and it is 
hurting our democracy. For the past several decades, we have 
increasingly limited people's rights in favor of corporate rights.
  Now Republicans want us to confirm a judge who says that corporations 
have religious rights. Judge Gorsuch was a part of the Hobby Lobby 
decision that went before the Supreme Court, in which the Tenth Circuit 
decided that corporate personhood extends to First Amendment religious 
rights, and because the corporation itself--not just the people who own 
it--has been granted those rights by judges like Neil Gorsuch, the 
rights of corporations now usurp the health and the rights of American 
citizens. That is the problem with Judge Gorsuch's worldview.
  It is not just that he is a conservative; it is that he actually 
thinks that corporate entities have the very same rights as American 
citizens--rights, by the way, that do not come with the same 
responsibilities that we all have as American citizens. Yet this judge 
wants to confer more rights onto corporations when we are already past 
the tipping point as a society when corporations have more power than 
  We are in the absurd position of asking: How far are these corporate 
rights going to extend? They have been given First Amendment rights. 
They have been given Fourth Amendment rights. Do they get the right to 
vote next? Do they get the right to keep and bear arms? How many more 
constitutional rights are we going to give to corporations before we 
say that enough is enough? We are already well beyond the point at 
which corporate interests beat out the individual, whether it is at the 
polls or in the workplace.
  There are a lot of other things about Judge Gorsuch's worldview that 
I object to, but, at my core, I think I might be able to get around 
some of those things in knowing that the Constitution requires the 
Senate to advise and consent, not agree with. Yet his worldview 
regarding corporations as people embodies everything that is going 
wrong with our country and with the Court. By the way, it is probably 
fair to say that almost every nominee whom we have seen this year 
embodies this worldview.
  Time and again, Democrats in the Senate have raised the alarm about 
this administration's nominees, and we have been overruled. What is the 
result? You have Cabinet Secretaries destroying American diplomacy. You 
have Secretaries trying to ban Muslims from entering the United States. 
You have an EPA Administrator, Scott Pruitt, leaving a dangerous 
product on the market that has been proven by his own scientists to 
hurt children. Why? Because they prioritize corporate rights over 
people's rights.
  The problem is this: Cabinet Secretaries come and go; Supreme Court

[[Page S2312]]

Justices do not. Let me put it this way: This administration's Cabinet 
is like a date. It is a really bad date, but at least it comes to an 
end. A Supreme Court Justice on the other hand is not a bad date; it is 
a marriage. It is a lifetime appointment that will have an impact on 
generations of Americans.
  The fact that he is out of the mainstream is absolutely essential for 
us to consider. The fact that he thinks corporations are people is, in 
my mind, disqualifying--so disqualifying that I will vote no on 
cloture, and I will vote no on final confirmation if it comes to that, 
which brings me to the question of cloture.
  When the Senate votes on cloture, the question before the Senate is, 
Is it the sense of the Senate that debate should be brought to a close?
  For the Supreme Court nominee, we have rules, and those rules say 
that you need 60 Senators to end debate--not 59, not 51, not 57. There 
are 59 Senators who do not get to decide when to end debate; 60 do. If 
you cannot get 60 votes to end debate, you do not have cloture.
  After 2013, there is only one position--one appointed position that 
retains that 60-vote threshold, and that is the U.S. Supreme Court. 
That is for a very straightforward reason. It is that we have decided 
as a body that the Supreme Court needs to have bipartisan support; that 
if a person cannot get 60 votes, you change the nominee, you do not 
change the rules.
  We have decided that this position--this institution, the Court 
itself, the highest Court in the land--should be beyond our partisan 
disputes and differences. That is the foundation of the U.S. Senate. It 
is the way this place works. Without this rule, the reality will be 
grim. Without this rule, if you are a Member of the minority party, the 
President's nominees don't have to listen to you, meet with you, think 
about you. Without this rule, advice and consent is rendered 
meaningless for whichever party is out of power.
  I have been here now 5 years, about 4\1/2\ years. Even in my short 
time here, the door swings both ways in Washington. Remember that 
today, this week, for the Republicans it might feel satisfying to use 
power maximally, to use the greatest authority possible under the U.S. 
Constitution, but without this rule, the Senate itself will be 
undermined by its own Members. I have never seen any legislative body 
endeavor to diminish its own authority, and that is what is going to 
happen this week.
  We can argue about how we got here. Was it in 1987 when the Senate 
rejected Robert Bork? Was it in 2013 when Leader Reid responded to 
historic obstructionism by eliminating most filibusters on nominees? 
Was it last year when Merrick Garland was not even given a hearing? We 
all have our talking points. At the end of the day, both sides own some 
of this mess. I am a Democrat. I think it is 80/20. Republicans will 
think it is 80/20 on the other side. The general public may think it is 
60/40 or 50/50. I am not sure that matters anymore. The question of who 
is at fault is not the most important question. The question is, What 
do we do next? Will the Senate undermine its own authority and 
strengthen the power of partisanship?
  I would say this to my Republican colleagues: Think about what you 
are going to do next. Think about what this is going to mean the next 
time you are in the minority party, because it will not be Senators 
Duckworth and Cortez Masto who can't even get a meeting with a Supreme 
Court nominee, it will be you.
  This is about the future of the Senate and the Supreme Court. The 
nuclear option will mean nominees for the Supreme Court will not have 
to meet with or consider minority opinions. It will mean that the 
Senate's habit of being slow--sometimes maddeningly so, but we know it 
is in the best interests of the country--will go away for this 
appointment. That tradition allows the center to hold, and it will be 
  To my Republican colleagues, I am not asking you not to do this. I am 
asking you to take your time. In the world's greatest deliberative 
body, there is no reason to rush this decision. I am asking you to 
wait. I am asking you to take a few weeks before you decide to change 
the Senate forever. Take your time. This is probably one of the most 
consequential decisions you are going to make in the U.S. Senate 
because it is about the Senate itself. This is worth talking about. 
This is worth deliberating over. It is worth thinking over. Go home. 
Talk to your constituents. If you want to do this, you can do this 
anytime you want. You can do this the Monday we get back from our 
spring work period. For goodness' sake, there is no reason not to think 
about it for a little bit longer.
  All we need are three Members of the Republican Party to go to their 
leader, publicly or privately, and say: We are not with you on nuclear 
yet; give us some time to try to save this important aspect of the 
Senate. Otherwise, you will make both the Supreme Court and the world's 
greatest deliberative body more extreme and more divided, and I believe 
you will regret it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. MARKEY. Madam President, I rise to speak in opposition to the 
nomination of Judge Neil Gorsuch to serve as an Associate Justice of 
the U.S. Supreme Court.
  Let me begin by making clear my view that the vacancy on the Supreme 
Court created by the death of Justice Antonin Scalia was President 
Obama's to fill. In an act of unprecedented obstructionism that makes a 
filibuster pale in comparison, Senate Republicans broke with 
longstanding Senate tradition and refused to hold a vote or even a 
hearing on President Obama's nominee, Judge Merrick Garland.
  As we now consider President Trump's nominee, Judge Neil Gorsuch, we 
cannot ignore or forget this hyperpartisan action. We also cannot 
ignore how President Trump came to nominate Judge Gorsuch. President 
Trump went to two of the most partisan, conservative organizations he 
could find--the Koch brothers-supported Heritage Foundation and the 
rightwing Federalist Society--and said to them: Who do you want on the 
Supreme Court? They compiled their dream team of 21 ultraconservative 
candidates. President Trump looked at the names on that list and asked 
himself which judge could pass the rightwing litmus tests he had 
articulated during the campaign. His choice was Judge Neil Gorsuch.
  On the campaign trail, Candidate Donald Trump made clear that he was 
pro-life and would appoint pro-life judges to the Supreme Court. In one 
interview, he was asked about his pro-life position as follows:

       So, how important is that issue to you now? When President 
     Trump picks Supreme Court justices, would there be a litmus 

  Trump responded:

       It is. It is.

  During the second Presidential debate, Candidate Trump doubled down 
on this issue. He was asked specifically about Roe v. Wade, the 
longstanding Supreme Court precedent establishing a woman's right to 
choose. The question to Candidate Trump was ``Do you want the court, 
including the justices that you will name, to overturn Roe v. Wade?''
  Trump responded that he would ``be appointing pro-life judges,'' 
adding, ``Well, if we put another two or perhaps three justices on . . 
. that will happen,'' meaning Roe v. Wade will be overturned.
  We know from Donald Trump's own words that he had a litmus test for 
Supreme Court nominees on a woman's right to choose. That litmus test 
is that he will appoint only pro-life Justices who are committed to 
overturning Roe v. Wade.
  What about a litmus test on guns? During the Presidential campaign, 
Candidate Trump repeatedly emphasized his pro-gun views, which are in 
lockstep with the National Rifle Association. He was asked about a 
litmus test for the Second Amendment--specifically, the precedent 
established in the 2008 Supreme Court case of District of Columbia v. 
Heller. In Heller, the Justices ruled 5 to 4 that a commonsense 
Washington, DC, law banning handguns and requiring other firearms to be 
stored unloaded or locked violated the Second Amendment.
  Candidate Trump was asked: ``Will you make upholding the Heller 
decision a litmus test in Supreme Court nominees?''
  Trump answered: ``Yes, I would.''
  The followup question: ``So you won't nominate somebody to the 

[[Page S2313]]

Court unless they agree with Scalia on the Heller decision?''
  Trump responded: ``Correct.''
  We know from Donald Trump's own words that he had a litmus test for 
Supreme Court nominees on guns--his judges must support the National 
Rifle Association's agenda and its unreasonable and dangerously broad 
view of the Second Amendment.
  From that list of 21 names provided to him by the Heritage Foundation 
and the Federalist Society, President Trump chose Judge Neil Gorsuch, 
apparently convinced that he was the man who would pass these litmus 
  The Senate Judiciary Committee's hearings on Judge Gorsuch were an 
opportunity for him to dispel doubts about his independence that 
President Trump's selection process had raised. Unfortunately, Judge 
Gorsuch did nothing to address these concerns. In fact, his appearance 
before the Judiciary Committee raised more questions than it answered 
because Judge Gorsuch was positively sphinx-like before the Senators 
questioning him.
  For example, when repeatedly asked about something as elementary as 
his judicial philosophy, Judge Gorsuch refused to answer. He declined 
to say whether he agreed with the Roe v. Wade decision, the District of 
Columbia v. Heller decision, or other controversial decisions, such as 
Citizens United, which opened the floodgates to unrestricted, secret 
money in electoral campaigns, or even the decision in Bush v. Gore, 
which decided the 2000 Presidential election.
  Judge Gorsuch also refused to respond whether he agreed with other 
Supreme Court precedents on the right to privacy, the right to counsel 
in criminal proceedings, voting rights, or same-sex marriage. Contrast 
that to Justice Sonia Sotomayor, who during her confirmation hearing 
explained that she fully understood the individual right to bear arms 
that the Supreme Court recognized in the Heller decision. Contrast that 
with Justice Anthony Kennedy, who during his hearing praised the 
Supreme Court's landmark 1963 decision in Gideon v. Wainwright, which 
established the right to counsel in criminal cases. Even contrast Judge 
Gorsuch with Chief Justice John Roberts, who at his hearing affirmed 
that privacy is part of the liberty interest protected by the due 
process clause. Instead, at his hearing, Judge Gorsuch repeatedly 
parroted that critical Supreme Court decisions were precedents of the 
Court ``that he would follow unless and until they are overturned.'' He 
shed no light on what he felt about those precedents or whether he 
would be inclined or disinclined to vote to overturn them.
  Only after considerable prodding did Judge Gorsuch eventually agree 
that the decision in Brown v. Board of Education, which did away with 
the doctrine of separate but equal and desegregated schools across our 
Nation, was correct. Having to pry out of Judge Gorsuch that concession 
does not inspire confidence in him.
  His performance at the hearings left us with many troubling things 
that we don't know about Judge Gorsuch, but equally troubling about 
Judge Gorsuch are the things we do know about him.
  We do know that Judge Gorsuch authored the Hobby Lobby decision in 
which he ruled that corporations are people whose religious beliefs are 
more important than the reproductive rights and health of women.
  We do know that Judge Gorsuch has questioned the judicial doctrine of 
what is known as Chevron deference. That is the rule from the Supreme 
Court case of Chevron v. The Natural Resources Defense Council under 
which judges must generally defer to expert administrative agency 
interpretations of laws they are charged with administering. In a 
speech last year, Judge Gorsuch attacked the modern administrative 
state that has developed under Chevron, saying that it ``poses a grave 
threat to our values of personal liberty.''
  What Judge Gorsuch is saying is not some abstract legal theorizing; 
he is attacking the fundamental rules that protect the health, safety, 
and welfare of all Americans that are put in place by agencies like the 
Environmental Protection Agency, the Food and Drug Administration, and 
the Securities and Exchange Commission. In the decades since Chevron 
was decided, it has been instrumental in courts upholding these agency 
rules that ensure that our air and drinking water are clean; rules that 
ensure that drugs and medicines are safe and effective; rules that 
ensure that our automobiles, workplaces, food, medicine, and children's 
toys are not dangerous; and rules that ensure our financial markets are 
fair and offer investors a level playing field.

  Even Justice Scalia supported Chevron deference. But Judge Gorsuch 
has signaled that he would overturn it and instead allow pro-corporate 
judges to substitute their policy views for those of the agency 
experts. If threatening the destruction of the regulations that protect 
the health, safety, and welfare of Americans sounds familiar, it 
should. It is straight out of the alt-right, Steve Bannon playbook. And 
it is a fringe position that is not worthy of representation on our 
Nation's highest Court.
  We also know that the Supreme Court just rejected Judge Gorsuch's 
harsh reasoning in a disabilities rights case. A few years ago, Judge 
Gorsuch wrote an opinion for the Tenth Circuit Court of Appeals in a 
case under the Individuals with Disabilities Education Act. That 
opinion held that schools across the country must provide educational 
benefits to students with disabilities that must be ``merely more than 
de minimis.'' But just last week, in an IDEA case, all eight Supreme 
Court Justices disagreed with Judge Gorsuch. Chief Justice Roberts 
wrote that the IDEA--the Individuals with Disabilities Education Act--
is ``markedly more demanding than the `merely more than de minimis' 
test applied by the Tenth Circuit,'' and added that Judge Gorsuch's 
approach would effectively strip many disabled students of their right 
to an education.
  We also know that Judge Gorsuch has consistently ruled against 
employees in cases involving claims of unsafe workplaces and sex 
discrimination, and he has repeatedly sided with insurance companies 
that sought to deny disability benefits to employees.
  Here is something else we know. If the first 75 days of the Trump 
administration are a preview of coming attractions, one thing could not 
be more clear: The U.S. Supreme Court's rule defending the Constitution 
will be tested as never before: conflicts of interest, emoluments, 
Muslim bans, rescinding LGBTQ protections. The list of constitutional 
rights the Trump administration is violating gets longer every single 
  Now more than ever, we need a Supreme Court Justice who is 
independent and not beholden to ideology. Now more than ever, we need a 
Justice who will stand up for the rights of all Americans against big 
corporate interests. A Justice who would be to the right of Antonin 
Scalia on the issue of Chevron deference is not a mainstream Justice. A 
Justice who would be to the right of Samuel Alito and Clarence Thomas 
by a substantial margin--as professors from Michigan State University 
and the University of Wisconsin concluded after examining Judge 
Gorsuch's opinions on the Tenth Circuit, and the Supreme Court's 
decisions reviewing them--is not someone within the mainstream of 
American jurisprudence.
  Everything we have seen so far--from Donald Trump's judicial litmus 
tests, to the visible hand of rightwing interest groups in the 
selection process, to Judge Gorsuch's reticence before the Judiciary 
Committee, to his pro-corporate bias in cases he has decided--leads me 
to the conclusion that he will be neither a Justice for all Americans, 
nor one on whom we can count to stand up to President Trump.
  We cannot let Judge Neil Gorsuch become the crucial ninth vote on the 
Supreme Court. One Justice matters. The list of recent 5-to-4 decisions 
coming out of the Supreme Court shows that one judge's vote can forever 
alter history. Just remember that Bush v. Gore, Citizens United, 
District of Columbia v. Heller, and the Affordable Care Act, were all 
decided by 5-to-4 votes.
  I will, therefore, oppose Judge Gorsuch's nomination to the Supreme 
Court and support the filibuster, and I urge my colleagues to do so, as 
well. If Judge Gorsuch cannot muster 60 votes, the problem is not with 
the process, it is with the nominee. If Judge Gorsuch cannot get to the 
60 votes historically required for confirmation to the Nation's highest 
Court, I urge President Trump to withdraw his nomination and

[[Page S2314]]

consult with a wide range of Senators--legal scholars and others who 
past Presidents have sought out before making a Supreme Court 
nomination--and put before us someone in the mold of Merrick Garland, 
who can enjoy bipartisan support and be within the broad mainstream of 
American jurisprudential history.
  Otherwise, the consequences of forcing Judge Gorsuch's nomination 
through will fall squarely on the shoulders of President Trump and his 
Republican allies in the Senate, if they decide to exercise the nuclear 
option, forever changing the history of the United States Senate.
  I urge a ``no'' vote on Judge Gorsuch.
  I yield back to the Chair.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. Madam President, I also rise to discuss the Supreme Court 
nomination of Judge Neil Gorsuch of the Tenth Circuit. I take this very 
  I started my legal career as an appellate law clerk in the Eleventh 
Circuit Court of Appeals in the South, working for a spectacular 
jurist, Judge R. Lanier Anderson III. He taught me about what it was to 
be an appellate judge: humility, not making a case a personal cause, 
and careful application of the law.
  I then went on to practice law in the State and Federal courts, the 
trial and appeal courts, including the U.S. Supreme Court as a civil 
rights lawyer for 17 years. When I was the Governor of Virginia, I 
twice had to appoint members of the Virginia Supreme Court and grappled 
with qualifications to serve on an appellate bench.
  Maybe most especially, my wife was a judge. So with a judge in the 
house--she was a judge for 8 years--I spent a lot of time also thinking 
about the characteristics of a good judge. Judge Gorsuch has some 
strong characteristics, educational background, and professional 
experience. These are characteristics that are worthy of respect. But I 
have decided that there is an additional characteristic that is very 
important--judicial philosophy.
  And as I have looked at Judge Gorsuch's judicial philosophy, I have 
concluded that I cannot support him. I have read scores of his 
opinions. I met with him in my office. I am so proud of my colleagues--
Democrat and Republican--because in 2 months, Judge Gorsuch has enjoyed 
something that Merrick Garland didn't get in 10 months. Judge Gorsuch 
has had meetings with virtually all Senators. He has had a Judiciary 
Committee hearing, a Judiciary Committee vote. He is getting floor 
debate, and he will get a floor vote. Those are the five things he is 
entitled to, and he is getting all of them.
  Judge Merrick Garland was nominated. Republicans wouldn't meet with 
him. They wouldn't hold a hearing. They wouldn't do a committee vote. 
They wouldn't do a floor debate, and he wouldn't get a floor vote. He 
got nothing he was entitled to as a sitting judge on the DC Circuit. 
Also, the Senate didn't exercise the advice and consent function that 
is part of our constitutional job description.
  Let's talk about Judge Gorsuch's record. Many of my colleagues have 
been speaking for hours. I want to focus on one aspect of his record. 
Judge Gorsuch was promoted by President Trump as not an activist. And 
Judge Gorsuch has written with scorn about activist judges, saying that 
judges who impose their moral or social preferences on others can't 
square their position with the Constitution. He even scorned activists 
in courts, saying that liberals are addicted to the courtroom, as if 
somehow bringing constitutional claims in courts is wrong.
  So I think it is fair to look at Judge Gorsuch by his own standard. 
Is he an activist or not? The best definition of a nonactivist judge 
was the definition given by Chief Justice Roberts during his 
confirmation hearing. He said: I am an umpire. I have no platform. I 
have no agenda. I call balls and strikes without fear of any party, 
without favor to any party. I am an umpire.
  I looked at Judge Gorsuch's record and talked about a set of cases 
that determine whether that is, in fact, true. And I have concluded 
that Judge Gorsuch is definitely an activist. He may not be an activist 
on everything. I don't think you have to be an activist on everything 
to be an activist, but I do believe he is an activist. It shows through 
in no area clearer than it shows through in cases dealing with women's 
ability to make their own decisions about their own healthcare, 
especially reproductive health.
  There is a famous 2013 case that has been much discussed during these 
discussions and in committee--Hobby Lobby v. Burwell. It was a 
challenge brought up in the Tenth Circuit, where Judge Gorsuch now 
sits. The legal question before the circuit court was pretty 
straightforward. Under a congressional act designed to protect 
religious liberty--the Religious Freedom Restoration Act--a company 
claimed that its religious views conflicted with the contraception 
mandate of the Affordable Care Act. And, if so, could they gain 
protection for their own position?

  It was sort of a controversial case because the notion that a company 
could assert religious views was sort of a novel theory at the time. 
But, with Judge Gorsuch as part of the majority, the majority in the 
Tenth Circuit ruled that, yes, a company could assert a claim based on 
sincerely held religious beliefs under the RFR statute. And they could 
assert that their beliefs conflicted with the ACA's contraception 
  Then, in 2014, that ruling was upheld by the U.S. Supreme Court--a 
controversial decision, but the majority agreed with the position that, 
yes, a company could assert that its sincerely held religious beliefs 
were, in fact, in conflict with the statute, and they could get relief 
from the statute for doing that. Judge Gorsuch joined the ruling, which 
was later affirmed by the Supreme Court.
  What interested me about Judge Gorsuch in the case was that he chose 
to write a concurring opinion. Most folks know what they are. If you 
are not a lawyer--when a panel writes an opinion, there is a majority 
opinion that is the ruling in the case. If a judge feels that it is 
wrong, a judge will write a dissenting opinion saying: No, you are 
wrong, and here is why. You are dutybound, if you think the majority is 
wrong, to write a dissent.
  A concurring opinion is about as voluntary as it gets. A concurring 
opinion is: I agree with the outcome, but I have a point I want to 
make. I can't convince the rest of the majority to go along with me, 
and I want to make this point.
  So Judge Gorsuch wrote a concurring opinion that was incredibly 
revealing. It was voluntary, and that shows you a little about a 
person's philosophy. It was incredibly revealing for two reasons. 
First, Judge Gorsuch had already joined the majority opinion to say 
that the employer, Hobby Lobby, could challenge the employer mandate of 
the ACA. He had already joined that, but he stretched beyond to rule 
that, in addition, the individuals owning the company should be able to 
sue to challenge the employer mandate, even though they weren't the 
  The ACA mandate applied only to the employer of the female employees. 
The employer was Hobby Lobby. But even though the mandate didn't even 
apply to the Green family who owned the company, Judge Gorsuch said 
that they should be able to challenge the ACA anyway.
  I practiced law for a long time. There is a complete separation--
there is supposed to be--between individuals and an incorporated 
company. You can run a business and not incorporate it, and in that 
case, there is no separation. But as soon as you incorporate it, you 
get all kinds of protections, especially that you can protect your own 
personal assets from liability for corporate actions. The Green family 
had done that. But Judge Gorsuch said: Even though you voluntarily 
separated yourself from the company and even though the mandate doesn't 
apply to you, you should be able to file a lawsuit to challenge the 
mandate. I found that to be highly unusual--a great stretch. I asked 
him about it when we talked. He did not give me a satisfactory answer.
  Here was the thing about the Hobby Lobby case that was more notable. 
It was the way Judge Gorsuch described what the case was about. The 
majority opinion in the Tenth Circuit and the majority opinion in the 
Supreme Court described the case the same way. They basically said that 
the owners of this company claimed that the contraception mandate was 
contrary to their religious views. That is what the case

[[Page S2315]]

was about. The clash was between the owners' religious beliefs and the 
statute. That is what the case was about. But Judge Gorsuch described 
the case completely differently. Here are his words:

       All of us face the problem of complicity. All must answer . 
     . . to what degree we are willing to be involved in the 
     wrongdoing of others.

  He didn't describe it as a clash between the owners and the statute. 
He described it as a case about whether you are willing to be complicit 
in the wrongdoing of others. That wasn't the legal issue at all. In the 
Gorsuch concurring opinion in Hobby Lobby, what does that phrase mean--
``the wrongdoing of others''? Who are the others he is talking about? 
He is talking about female employees of Hobby Lobby, who wish to make 
their own choice from among available and lawful methods of 
contraception. Those are the others he is referring to.
  He is also referring to that choice as ``wrongdoing.'' That is a 
completely editorial comment that is not drawn from what a lawyer said 
or what a plaintiff said. That is his own characterization of the case, 
and it is completely irrelevant and, I would argue, insulting. It is a 
completely irrelevant and insulting reference to something that was not 
part of the case at all, except Judge Gorsuch decided to inject it into 
the case.
  Somebody who looks at women making their own choice of contraception 
as the ``wrongdoing of others''--that is very telling.
  The PRESIDING OFFICER. The time for the Democrats has expired.
  The majority whip.
  Mr. CORNYN. Madam President, if my friend the Senator from Virginia 
needs a minute or two to wrap up, I know it caught him midthought. I am 
happy to yield to him for that purpose.
  Mr. KAINE. I would appreciate it. I will take 2 minutes and finish 
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. I thank my friend, the deputy majority leader, the senior 
Senator from Texas.
  I draw support for my conclusion about that language from two other 
cases that Judge Gorsuch was involved in in the Tenth Circuit, one case 
dealing with contraception and one case dealing with an effort to 
defund Planned Parenthood in Utah.
  In both cases, the Tenth Circuit reached a decision that was pro-
women's health, pro-women's health access. The parties were fine with 
the decisions. They were going back to the district court and they did 
not apply to have the cases reheard en banc. But in both those cases, 
Judge Gorsuch took the highly unusual step of trying to get the appeals 
heard anyway, even though the parties did not want to have them 
reheard. In my experience as an appellate advocate, that is virtually 
unheard of. I have talked to litigators in the Tenth Circuit, and they 
have said the same thing. It is highly rare. The fact that Judge 
Gorsuch would do it in two cases--both of which involved women's health 
access--is important.
  Finally, in his confirmation hearing, Judge Gorsuch was asked 
directly whether he agreed with the decision in Griswold v. 
Connecticut, the 1965 decision that said married couples could not be 
criminalized for using contraception.
  He said it was a precedent worthy of respect like all precedents, but 
he would not agree--he would not say he agreed with the case. Chief 
Justice Roberts, during his confirmation, said he agreed with the case. 
Justice Thomas said: I have no quarrel with Griswold. Justice Alito 
said he agreed with the case. But Judge Gorsuch would not.
  Griswold v. Connecticut has been used repeatedly in the last 50 years 
to basically create a body of constitutional precedent that says the 
relationships of people--romantic, inmate relationships--should be free 
from the intrusion of Big Government. You can't criminalize somebody 
because of their relationship. I think somebody who is not willing to 
commit to that principle is somebody who has not earned my vote.
  With that, I yield the floor. Again, I thank my friend from Texas.
  The PRESIDING OFFICER (Mr. Young). The majority whip.
  Mr. CORNYN. Mr. President, Members of the Senate have been coming to 
the floor talking about the important vote we will be casting tomorrow 
and then again on Friday which will result in the confirmation of Judge 
Neil Gorsuch as the next Associate Justice of the Supreme Court.
  Having served on the Senate Judiciary Committee since I first came to 
the Senate, it has been my honor to participate in the confirmation 
hearings in the committee on now five Supreme Court Justices, Judge 
Gorsuch being the latest.
  What I have been struck by when it comes to Judge Gorsuch is how much 
our friends across the aisle--who cast a party-line vote in the 
Judiciary Committee against the judge on his confirmation--how much 
they have been struggling to come up with even one intellectually 
honest argument against the nominee, in spite of his obvious and 
tremendous qualifications and bipartisan support.
  For example, I heard our colleague from Virginia, my friend Senator 
Kaine, criticize a couple of decisions that the judge made. What he 
left out is that Judge Gorsuch participated in 2,700 panel decisions on 
the Tenth Circuit Court of Appeals during his 10-year tenure there. 
Ninety-seven percent of them were unanimous. As the Presiding Officer 
knows, that means that each of the judges--three judges on the typical 
panel or in an en banc--basically that everyone agreed, whether they 
were nominated by a Republican or Democrat. So this whole idea of 
cherry-picking the judge's judicial report to try to find some straw, 
to grasp at some straw with which to disagree with his confirmation is 
pretty striking to me.
  But last night we saw the latest act of desperation to try to justify 
the unprecedented partisan filibuster of Judge Gorsuch. For example, it 
was reported that a handful of lines in a 2006 book were borrowed from 
other sources. Well, the timing of this says it all. This book has been 
published for 10 years. The only reason for this allegation is a last-
minute attempt to try to make something, really anything stick to 
tarnish the character of someone who will soon serve on the Supreme 
  This kind of baseless attack is not only disingenuous, it is 
transparent and it has absolutely no merit. Even the author of the main 
article allegedly plagiarized has rejected that characterization. So 
this is the person who wrote the article who Judge Gorsuch was claimed 
to have plagiarized, in essence. Well, the author of the main article 
rejected the characterization of plagiarization. She said that under 
the circumstances, it would have been awkward and difficult for Judge 
Gorsuch to have used different language.
  Other academic experts have also rejected the claim and made clear 
that the preferred methodology for facts is to cite original sources, 
which is exactly what Judge Gorsuch did. Talk about an eleventh-hour 
baseless attack.
  The bottom line is this: Instead of evaluating the judge based on his 
qualifications, the sterling reputation he has among people across the 
political spectrum, our friends across the aisle are determined to 
attempt the first successful partisan filibuster of a Supreme Court 
nominee. That is disappointing, but it is also destined for failure.
  Yesterday, I pointed out how we actually got here. Back during 
President George W. Bush's first term, Senator Schumer and others laid 
the groundwork and then executed a strategy for unprecedented 
obstruction of judicial nominees. That was in response to the election 
of the last Republican President. This is in response to the election 
of a new Republican President. I think for him, following the election 
of the current one, obstruction of a perfectly qualified nominee to the 
Supreme Court is just the next step. It actually represents the 
ultimate escalation of this weaponization of the filibuster used in 
judicial confirmations.
  As I have said before, based on the merits of the nominee, the 
justifications for opposing Judge Gorsuch are paper thin. Our 
colleagues across the aisle unanimously supported Judge Gorsuch when he 
was confirmed to the Tenth Circuit Court of Appeals just 10 years ago. 
He got everybody's vote. It was a voice vote. This was to the Tenth 
Circuit Court of Appeals, a lifetime tenured position. All of them 
agreed he

[[Page S2316]]

should be confirmed. Well, that includes then-Senator Obama, Senator 
Clinton, and Senator Biden. So I would ask you, what has changed in the 
last 10 years that now cause them to reach deep into their bag of 
tricks and to filibuster this nominee for the Supreme Court? Well, it 
is not his track record as a judge, that is for sure. As I mentioned, 
of the 2,700 cases he has participated in, 97 percent were unanimous--
97 percent.
  One recent analysis put him in the middle of the circuit 
ideologically speaking, and for a decade he has done good, fair work as 
a judge on the Tenth Circuit--really outstanding work, to be honest. 
That should tell you something about this judge and this man, but it 
should also tell you something about the opponents of this nominee, 
many of whom, like Barack Obama and Hillary Clinton, as I mentioned, 
supported his nomination just 10 years ago. The only thing that has 
changed, the only thing that explains the radical shift of Democrats in 
opposition to this good judge, is that now President Trump is in the 
White House.
  I honestly believe that every excuse they have come up with to engage 
in this unprecedented filibuster is completely without merit. What they 
are really upset about is what happened on November 8. I don't 
believe--if they won't confirm Judge Gorsuch, they will never vote to 
confirm any nominee of this President, period.
  What we are talking about and all we are asking for is an up-or-down 
vote. If they want to vote against the nomination, that is their right, 
but, as everybody knows, to get to that, we first have to get 60 votes 
to close off debate and then get to the majority up-or-down vote. But 
they will not even allow us to move to a vote.
  I hope our Democratic friends who are obstructing will reconsider. I 
believe there are four Democrats who are going to join all of the 
Republicans in voting to confirm this nominee, so he will enjoy 
bipartisan support, as he should.
  This judge is a faithful interpreter of the law. He believes in an 
independent judiciary and enjoys support across the ideological 
spectrum. He will be confirmed as the next Supreme Court justice, but 
it is up to our Democratic friends to determine just how that occurs.
  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. ROUNDS. 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. ROUNDS. Mr. President, I rise today to offer my strong support 
for Judge Neil Gorsuch, President Trump's pick to replace Justice 
Scalia on the Supreme Court. On Monday, his nomination passed out of 
the Senate Judiciary Committee, and we expect to confirm him before the 
end of the week. I am tremendously excited to have him on the bench. 
Throughout his career, Judge Gorsuch has proven time and again that he 
is exceptionally qualified to serve on the Supreme Court. He has been 
praised and endorsed by members on both sides of the political 
spectrum, the left and the right.
  As a judge on the Tenth Circuit Court of Appeals since 2006, after 
being unanimously confirmed by this body, Judge Gorsuch has proven he 
is as mainstream as they come. In fact, of the 800-plus opinions that 
he has written for the Tenth Circuit, less than 2 percent, or 14 
opinions, have drawn dissents from his colleagues. In other words, 98 
percent of his opinions have been unanimous. That is even more 
remarkable when you look at the makeup of the Tenth Circuit--12 of the 
judges were appointed by Democratic Presidents, while only 5 were 
appointed by Republicans. It does not get much more mainstream than 
  During his confirmation hearings last month, Judge Gorsuch again 
proved that he is eminently qualified to serve on the bench of our 
Nation's highest Court. Let me share some of his quotes from his 
  ``The Constitution doesn't change. The world around us changes.''
  ``I don't believe in litmus tests for judges.''
  ``If I'm confirmed, I will do all my powers permit, to be a faithful 
servant to the Constitution and laws of this great nation.''
  One last quote:

       As a judge now for more than a decade, I've watched my 
     colleagues spend long days worrying over cases. Sometimes the 
     answers we reach aren't the ones we personally prefer. 
     Sometimes the answers follow us home at night and keep us up. 
     But the answers we reach are always the ones we believe the 
     law requires. And for all its imperfections, I believe that 
     the rule of law in this nation truly is a wonder. And that 
     it's no wonder that it's the envy of the world.

  It is clear that Judge Gorsuch is qualified to serve on the Supreme 
Court and that he understands the role of a judge: to interpret the 
law, not to make the law.
  To that end, I would also like to highlight Judge Gorsuch's in-depth 
understanding of the separation of powers doctrine, and I am optimistic 
that Judge Gorsuch will carefully scrutinize cases and controversies 
that involve executive overreach.
  The past 8 years have seen an unprecedented expansion of the 
administrative state. This has come at the expense of both the 
legislative branch, whose purpose is to make laws, and the judicial 
branch, whose purpose is to interpret the law and decide on a specific 
law's constitutionality. But more concerning than that, it has also 
come at the expense of American citizens.
  Overreach by executive agencies has led to regulatory expansion that 
results in the Federal Government involving itself in nearly every 
facet of our lives on a daily basis. This expansion has been permitted, 
in part, to U.S. courts relying on the flawed Chevron doctrine to show 
great deference to agency interpretation of the laws passed by 
Congress. As a result, agencies have been able to broadly interpret 
laws in a way that has allowed them to expand their regulatory 
authority far beyond what Congress ever intended.
  Fortunately, U.S. judges are beginning to question the Chevron 
doctrine and its impact on the separation of powers doctrine relied on 
by our Founding Fathers and affirmed in the U.S. Constitution. Judge 
Gorsuch is one of those judges. Regarding Chevron, Judge Gorsuch has 
written that Chevron seems to be no less than a judge-made doctrine for 
the abdication of the judicial duty that prevents American courts from 
fulfilling their constitutionally delegated duty--interpreting what the 
law actually intends.
  Careful judicial scrutiny and interpretation of the law will allow 
courts to rein in agency actions that are inconsistent with the law and 
beyond the bounds of what Congress intended.
  In his concurrence in Gutierrez-Brizuela v. Lynch, Gorsuch argues 
that the Administrative Procedure Act vests in the courts the 
responsibility to ``interpret statutory provisions and overturn agency 
action inconsistent with those provisions'' and questions the idea that 
Congress ``intended to delegate away its legislative power to executive 
  Judge Gorsuch takes his duty as a judge with the utmost seriousness. 
He seeks to interpret the law the way Congress intended, not in the way 
an executive agency wants it to be.
  His careful and academic approach to judicial review is well-suited 
for our Nation's highest Court. I am confident that Judge Gorsuch will 
respect and enforce the constitutionally affirmed separation of powers 
doctrine that in recent years has been diluted by executive agencies 
broadly interpreting laws, resulting in regulatory overreach. This has 
minimized the role of Congress in the legislative process. As a result, 
the voices of American citizens have also been minimized and replaced 
with unelected Washington bureaucrats who think they know what is best 
for all Americans.
  Judge Gorsuch is one of the finest judges our Nation has to offer. 
The knowledge and careful deliberation he will bring to the Court will 
result in rulings that reflect justice, fairness, and an interpretation 
of what the law is and what Congress intended it to be, not what 
administrative agencies want it to be.
  Despite impeccable credentials, we are in a situation today because 
of a precedent set in November 2013 by then-Majority Leader Harry Reid 
and his conference. Former Leader Reid's use of a so-called nuclear 
option in 2013 meant the Senate could reinterpret its rules via simple-
majority vote. Former

[[Page S2317]]

Leader Reid accomplished this by challenging a ruling of the Chair with 
regard to the number of votes needed to end debate on certain 
  The Standing Rules of the Senate require the support of a 
supermajority, or 67 percent of Senators, to change the rules. To 
challenge the ruling of the Chair, Reid only needed a majority vote to 
overturn the Presiding Officer's correct interpretation of the written 
rule. In other words, Former Leader Reid broke the rules to change the 
rules and, by default, broke precedent to change the precedent moving 
forward as well.
  Based on this new precedent set by Former Leader Reid, the Senate is 
likely to confirm Judge Gorsuch to the Supreme Court by a simple-
majority vote. Because the Senate has always operated on precedent, we 
will likely follow this new precedent to approve Judge Gorsuch's 
nomination later this week.
  When he is confirmed, Judge Gorsuch will make a tremendous addition 
to the Supreme Court. His lifetime of defending the Constitution and 
applying the law as it was written provides clear evidence that he has 
the aptitude for this lifetime appointment to our Nation's highest 
  Mr. President, 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.
  Mrs. FISCHER. 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. FISCHER. Mr. President, I rise today in support of the 
nomination of Judge Neil Gorsuch to be our next U.S. Supreme Court 
Justice. Article II, Section 2 of the Constitution entrusts Members of 
the Senate with a responsibility vital to our democracy: providing 
advice and consent on the President's Supreme Court nominees.
  The significance of this task cannot be overstated, and it is one 
that I take very seriously. Days after President Trump nominated Judge 
Gorsuch to fill the late Justice Scalia's seat on the Supreme Court, I 
shared the qualities that I wanted to see in a Justice. They included a 
strong commitment to the rule of law, first-rate credentials, and a 
solid judicial record. The time has come to determine whether the 
nominee meets those criteria.
  After meeting personally with Judge Gorsuch, watching his 
confirmation hearing, and evaluating his background and legal record, I 
believe that answer is a resounding ``yes.'' Judge Gorsuch's 
credentials are exemplary. He has an extraordinary resume and a 
brilliant mind. For 10 years he has served on the U.S. Court of Appeals 
for the Tenth Circuit. The Senate confirmed him to this position by 
unanimous consent in 2006. No rollcall vote was needed because all 100 
Members supported the nomination.
  To date, Judge Gorsuch has decided 2,700 cases, and 99 percent of the 
time he sided with the majority. He has offered opinions in 800 of 
those cases, and 98 percent of the decisions in these cases were 
unanimous. This record tells us something important: He is well within 
the mainstream. It is why he has gained the respect of prominent 
attorneys on the right and on the left. Several of my Democratic 
colleagues have made similar observations.
  Senator Donnelly recently said that he would support Judge Gorsuch's 
nomination because ``he is a qualified jurist who will base his 
decisions on his understanding of the law.''
  Similarly, Senator Heitkamp indicated that she would vote to confirm 
Judge Gorsuch because ``he has a record as a balanced, meticulous, and 
well-respected jurist who understands the rule of law.''
  My colleagues have it right. A Justice should be a follower of the 
Constitution, not a trailblazer or an advocate. His or her role is to 
interpret and uphold the laws, not to create them. Judge Gorsuch 
understands this. He takes it seriously.
  In his confirmation hearing before the Senate Judiciary Committee, 
Gorsuch emphasized the importance of judicial precedent and a fair 
approach to the law. He said: ``I come here with no agenda but one . . 
. to be as good and faithful a judge as I know how to be.'' Similarly, 
in a private meeting in my office, the judge promised to ``follow the 
law, wherever it may lead.''
  Judge Gorsuch recognizes the pivotal but limited role that the 
Constitution allows judges to play in our Republic. During long days of 
testimony at his confirmation hearing, he made clear that while 
legislators answer to the people, a judge answers only to the law. At 
the same time, Judge Gorsuch said that he interprets his judicial oath 
as a promise to ``make sure that every person, poor or rich, mighty or 
meek, gets equal protection of the law.''
  ``Equality before the law'' is Nebraska's State motto. It represents 
the commitment Nebraskans made 150 years ago when we entered the Union. 
That principle remains strong today. It should be a cornerstone of 
judicial philosophy for any nominee to our Nation's highest Court. It 
is why the words ``Equal Justice Under Law'' are engraved on the front 
of the Supreme Court. Judge Gorsuch is dedicated to this principle. He 
is committed to applying the laws neutrally, equally, and fairly to all 
  Some of my Democratic colleagues are saying that Judge Gorsuch is out 
of the mainstream. They argue that he will not look out for the little 
guy. They are prepared to take the unprecedented and extreme step of 
filibustering this nomination. This would be the first successful 
totally partisan filibuster of a Supreme Court Justice in the history 
of the U.S. Senate.
  Let me share some of the facts about this institution. In our 
country's history, no Cabinet nominees have ever been denied their 
appointments by a Senate filibuster. In our country's history, no 
Federal district court judges have ever been denied their seats by a 
Senate filibuster.
  The first time a filibuster was used to defeat a judicial nomination 
was for a Circuit Court judge, Miguel Estrada, who was nominated by 
President George W. Bush to the U.S. Court of Appeals for the DC 
  In our country's history, the filibuster has been invoked only to 
block a Supreme Court nominee. It was in 1968, and a threatened 
bipartisan filibuster by Republicans and Democrats prevented Associate 
Justice Fortas from becoming Chief Justice of the Supreme Court. The 
nominee ended up withdrawing because of ethical concerns. Two sitting 
members of the Supreme Court were confirmed by fewer than 60 votes on 
an up-or-down vote, but neither one was the subject of a filibuster.
  A filibuster of this nominee sets a dangerous precedent and 
undermines the reputation of this institution. Judge Gorsuch will make 
an excellent Supreme Court Justice. The American people deserve to have 
him on the bench. I look forward to voting in support of Judge 
Gorsuch's nomination to serve as our next Supreme Court Justice. And I 
urge my Senate colleagues to do the same.

  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. LEAHY. 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. LEAHY. Mr. President, I do not see anybody on the floor, but I 
understand that this time has been reserved for the Republican side.
  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. HOEVEN. 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. HOEVEN. Mr. President, I am honored to come to the floor today 
and join my colleagues to support the nomination of Judge Neil Gorsuch 
to the Supreme Court of the United States.
  Judge Gorsuch is an exemplary pick for my home State of North Dakota 
and for our Nation as a whole. He has shown deep respect for the 
Constitution and has a strong record of upholding the rule of law.
  If confirmed, Judge Gorsuch will take the seat that was held by the 
late Justice Antonin Scalia. Of course, filling that vacancy will be no 
easy task. Justice Scalia was a brilliant legal

[[Page S2318]]

mind who had earned the respect of many in the legal community during 
his nearly 30 years on the Supreme Court. He was a true defender of the 
U.S. Constitution and sought to protect it so that future generations 
of Americans could live and thrive in a free society. His legacy on the 
Court will influence American jurisprudence for generations to come.
  If there is anyone who is worthy of filling Justice Scalia's shoes, 
it is Judge Gorsuch. Like Scalia, Judge Gorsuch is an originalist when 
it comes to interpreting the Constitution.
  I had the pleasure of meeting with Judge Gorsuch last week to discuss 
his nomination, and I am confident that he will make an excellent 
  If you look at his background, it is clear that he is an incredibly 
qualified nominee. After receiving degrees from Columbia, Harvard, and 
then Oxford, Judge Gorsuch went on to clerk for notable Supreme Court 
Justices Byron White and Anthony Kennedy before entering private 
  After 10 years of private practice, Gorsuch began his career in 
public service as a Deputy Associate Attorney General at the U.S. 
Department of Justice. In 2006, he was nominated by President George W. 
Bush to the U.S. Court of Appeals for the Tenth Circuit, and he was 
confirmed unanimously by the U.S. Senate.
  Let me repeat that. He was confirmed unanimously by this body. I 
believe that says a lot about Judge Gorsuch as a candidate. In a body 
that is so often divided, a candidate who can receive unanimous support 
is truly noteworthy.
  When nominated by the President, Judge Gorsuch said: ``A judge who 
likes every outcome he reaches is very likely a bad judge . . . 
stretching for results he prefers rather than those the law demands.'' 
During his tenure on the Tenth Circuit, he has demonstrated fair and 
prudent judgment in his opinions.
  In addition to his impressive professional background, Judge Gorsuch 
has roots as a westerner and will bring those roots and a much needed 
perspective to the Supreme Court. Because decisions that come from the 
Court affect the lives of Americans from across the country, it is 
important that the Court be composed of Justices from different regions 
of the country. It is critical that our next Supreme Court Justice have 
a familiarity with the challenges Western and Midwestern States face, 
like my home State and others--issues such as States' rights, Second 
Amendment rights, land use disputes, and the complex relationship 
between State and Tribal governments. These are the everyday realities 
we face across this country that the Justices must deal with.
  I expect many of these important issues to come before the Supreme 
Court in the coming months. In fact, just yesterday, the Court decided 
to move forward on litigation regarding former President Obama's waters 
of the U.S. rule, also known as WOTUS, which has had a significantly 
burdensome impact on farmers and ranchers and threatens the 
constitutional role of the States.
  Judge Gorsuch's background also makes him a prominent voice for 
Indian Country. As chairman of the Senate Indian Affairs Committee, I 
believe it is important for our next Supreme Court Justice to have a 
concrete record of respecting Tribal sovereignty. I was pleased to 
learn that he has earned the support of a number of Native-American 
groups, including the National Congress of American Indians and the 
Native American Rights Fund.
  Judge Gorsuch has had a long history of handling cases that have 
affected Native Americans from his time on the Tenth Circuit, and he 
has demonstrated a consistent understanding of the unique legal 
principles that are involved in Federal Tribal law. The boundary 
between State and Tribal authorities is often ambiguous; yet Judge 
Gorsuch was able to bring clarity as he diligently studied the law and 
respected existing precedents in Tribal sovereignty.
  For example, the Ute Tribe of Utah has been engaged in legal battles 
with the State over the State's authority to prosecute Native Americans 
on Tribal land. Judge Gorsuch has consistently ruled in favor of Tribal 
  In Hydro Resources v. EPA, a case in which EPA overreach was 
redefining the boundaries of Indian lands, Judge Gorsuch overruled the 
EPA's interpretation and respected the current Tribal boundaries.
  For all of these reasons, I urge a ``yes'' vote on Judge Gorsuch's 
nomination. As the highest Court in the land, the decisions have a 
widespread impact on millions of Americans.
  When the stakes are this high, it is necessary that we confirm 
someone with a sound, fair, and prudent approach to the law. I have no 
doubt that Judge Gorsuch is the right person for this role. I 
enthusiastically support his nomination, and I urge my colleagues on 
both sides of the aisle to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to the floor to express my deep 
concern about the Republicans' rush to fill the vacant Supreme Court 
seat and about President Trump's nominee for this critical position.
  I believe one of the most solemn and consequential decisions we make 
as Senators is whether to support a nominee to the highest Court in the 
country. It is a responsibility I do not take lightly. And after 
careful consideration, I will be voting against the nomination of Judge 
Neil Gorsuch, and I will be opposing a cloture motion ending debate.

  I come to this conclusion weighing several things. First, a Supreme 
Court Justice has an enormous responsibility to uphold our Constitution 
and defend our democracy. The Court's decision affects every citizen in 
every corner of this country. At times, one Justice--perhaps this 
nominee--may be the only thing standing between someone's rights and an 
executive branch that operates as though it is above the law.
  That is a real concern--one I have heard over and over from people in 
my home State of Washington who are frightened about the direction 
President Trump is trying to take our country.
  Since taking office about two months ago, he has demonstrated 
complete disregard for the law, the Constitution, and American 
families. He has tried to force through un-American bans on Muslim 
refugees and immigrants. He fired Sally Yates, an Acting Attorney 
General who dared to stand up to him.
  It is clear this President doesn't just think he is above the law. He 
has, at times, shown a true disdain for it, repeatedly insulting the 
men and women on the bench, even telling a crowd that perhaps the Ninth 
Circuit Court of Appeals--a court that didn't rule in his favor--should 
be broken up.
  Now, we need an independent judiciary that can safeguard the rights 
of citizens against this executive branch, but with so much chaos 
created by this President, coupled with the cloud of an FBI 
investigation into him and his associates, I have no reason to trust 
that he or his administration are acting in the best interests of our 
country or our democracy, and I cannot support moving forward with his 
choice for the Court.
  On top of that, I am concerned about the unprecedented pace of the 
Judiciary Committee process, which would rush through this nominee on 
the fastest time line in recent history. That is pretty striking 
because this same committee failed to hold a single hearing on this 
vacancy for 12 months following Justice Scalia's passing. It refused 
President Obama's nominee, Judge Merrick Garland, any opportunity to be 
heard, which brings me to my serious concerns about this particular 
  I wish to start with women's access to healthcare. President Trump 
campaigned on promises to overturn women's constitutionally protected 
rights to make their own healthcare decisions, secured by the historic 
ruling in Roe v. Wade. This President has broken almost every promise 
he has made, but one he appears to be keeping, especially in selecting 
Judge Gorsuch, is his promise to undermine women's health and rights.
  Judge Gorsuch would have taken the ruling in Hobby Lobby to allow 
women's bosses to decide whether or not they get birth control to an 
even more extreme result. His deeply conservative record suggests he 
can't be trusted to stand for women's constitutionally protected 
healthcare rights or access to care. In fact, it seems clear he will

[[Page S2319]]

work to weaken those rights at every opportunity.
  Since day one of this Presidency, women nationwide have made it 
absolutely clear they do not want to go backwards, and that is 
something I am going to continue to fight for.
  I am also going to keep fighting for our workers, and I am troubled 
that as a Federal judge on the Tenth Circuit, Judge Gorsuch has a clear 
record of siding against workers and with corporations and big 
  The Associated Press said his opinions were ``coldly pragmatic and 
they're usually in the employers' favor.''
  His history of dismissing workers' safety concerns and hostility 
toward upholding disability rights greatly concerns me and strongly 
suggests that he would join conservative Justices to undermine workers' 
  We need a Justice on the Supreme Court who will uphold workers' 
protections and safety and the right to organize.
  I am also deeply concerned about the potential effect on children and 
students with disabilities.
  In a number of cases, Judge Gorsuch ruled in ways that made it more 
difficult for them to receive the support and services they not only 
deserve but are entitled to under the Individuals With Disabilities 
Education Act--our Nation's special education law. I strongly believe 
in this law, and I believe we should be doing everything to ensure 
individuals with disabilities can obtain their full potential by 
accessing meaningful, quality public education--certainly not the bare 
  It is notable that while Judge Gorsuch was testifying--actually, 
while he was testifying before the Judiciary Committee 2 weeks ago--the 
Supreme Court unanimously rejected his prior ruling in a case involving 
the rights of a student with disabilities to receive a meaningful 
education. It is highly troubling that when it comes to policies 
concerning torture, Gorsuch--as a member of President George W. Bush's 
Justice Department--advocated that the President has broad powers to 
basically ignore parts of the legal ban on torture.
  This deference to Executive power is concerning, to say the least, 
but it also makes a whole lot more sense as to why Judge Gorsuch would 
be Donald Trump's No. 1 choice.
  His testimony before the Judiciary Committee regarding Citizens 
United, in which he incorrectly stated that the Court left Congress the 
ability to enact commonsense campaign spending limits, strengthens my 
decision to vote no.
  So if you believe in transparency in our elections and upholding the 
integrity of our democracy or you believe we need a Justice who will 
protect the rights of all Americans and stand with them and not with 
President Trump and millionaires and billionaires, this choice is 
  As I have urged my colleagues for weeks, with so much chaos in the 
administration and so many questions now surrounding this President's 
commitment to the rule of law: Slow down. Stop playing political games. 
Respect the families we represent. Respect the separation of power, and 
stop trying to jam this nominee through.
  Whatever you do, do not blow up the Senate rules for Supreme Court 
nominees. Invoking the nuclear option is a dangerous path to go down.
  I have been in the majority and I have been in the minority. Either 
way, I believe when it comes to a lifetime appointment to the Supreme 
Court, the Senate must adhere to a higher standard and the 60-vote 
threshold. If you can't get that many votes for a Supreme Court 
nominee, you don't need to change the rules, you need to change the 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, first I wish to commend the senior Senator 
from Washington State for her terrific statement.
  I know, as a member of the Judiciary Committee, that we reported the 
nomination of Judge Neil Gorsuch by the narrowest margin--a party-line 
vote. The majority leader then filed cloture to cut off debate on this 
nominee. He has shown that he will use whatever tactic is necessary to 
ensure this nominee is confirmed, no matter the concern of Senators or 
millions of other Americans.
  Today is just the 75th day of the Trump administration. After only 75 
days of having a Republican-controlled White House and Congress, the 
Republican leader has promised to vitiate the historic rights of the 
minority in this institution. He is prepared to abdicate the Senate's 
constitutional duty to serve as a check on the President and our 
responsibility to protect the independence of the Federal judiciary, 
all in the service of Donald Trump's agenda and because, as we know, 
Donald Trump asked him to.
  Senate Republicans seek to justify their tactics by claiming that 
Democrats would do no different were the shoe on the other foot. They 
are free to make that argument, but it is wrong. There is one claim in 
particular that I need to address. Some Republicans have asserted that, 
if President Bush had made a Supreme Court nomination in 2008, the 
final year of his term, Democrats would have pocket filibustered that 
nomination the same way that Senate Republicans did to Chief Judge 
Merrick Garland. Well, I was the chairman of the Judiciary Committee 
during that time, and I can assure them that they are wrong. Democrats 
did not invent an election year exception to the Constitution. Look no 
further than when a Democratic-led Senate confirmed Justice Kennedy 
during a Presidential election year.
  If President Bush had made a Supreme Court nomination in 2008, that 
nominee would have had a hearing, and all Senators would have had the 
opportunity to debate that nomination on the floor. As Senator Hatch 
and I wrote in 2001, ``The Judiciary Committee's traditional practice 
has been to report Supreme Court nominees to the Senate once the 
Committee has completed its consideration. This has been true even in 
cases where Supreme Court nominees were opposed by a majority of the 
Judiciary Committee.'' This Senator would not have disregarded 
precedent and constitutional obligation because of partisan politics. 
Whether such a nominee would have been confirmed would have depended on 
his or her views, but the nominee would have been given a fair process, 
which Senate Republicans denied Chief Judge Garland when they pocket 
filibustered him.
  My record in 2008 shows that I treated President Bush's nominees 
fairly. We confirmed 28 circuit and district nominees in 2008, 
including 10 in 1 day, just weeks before the election, and reduced the 
number of judicial vacancies to just 34. Compare that to 2016, when 
Senate Republicans allowed just nine circuit and district nominees to 
be confirmed in total. That is less than 33 percent of the 2008 number. 
Moreover, Republicans' pocket filibusters, even for nominees supported 
by home State Republican Senators, allowed the number of judicial 
vacancies to skyrocket over 100. Of course, they had done the same 
thing at the end of the Clinton administration, pocket filibustering 
more than 60 nominees. Those are the facts. Anyone who claims that 
judicial nominees were never obstructed before 2001 has conveniently 
forgotten those facts.
  When Senate Democrats changed the cloture rule for lower court 
nominations in 2013, we did so reluctantly and only after Senate 
Republicans repeatedly abused Senate rules to wage in unparalleled 
obstruction of President Obama's nominees over a period of years. By 
November 2013, the Republican leader had orchestrated an unprecedented 
number of filibusters, including requiring cloture motions on 34 
circuit and district nominees in less than 5 years--compared to 18 
nominees who faced cloture motions during the entire 8-year tenure of 
President Bush.
  When it comes to judicial nominations, the filibuster has been a tool 
to protect the independence of our courts by compelling Presidents to 
find mainstream, consensus nominees who do not bring an agenda with 
their lifetime appointments to our courts. Senate Democrats 
filibustered a small number of President George W. Bush's nominees, but 
it was not because they were conservative, or had been nominated by a 
Republican President. It was because we had serious doubts about their 
ability to put partisanship and ideology aside and be fair, neutral 
judges. Or it was because the President had ignored the traditional 
role of home State Senators when selecting the nominee. We confirmed 

[[Page S2320]]

conservative nominees, including Judge Neil Gorsuch. In fact, during 
the 41 months that I was chairman of the Judiciary Committee while 
President Bush was in office, the Democratic-majority Senate confirmed 
more circuit and district nominees than were confirmed during the 55 
months when Republicans held the majority.
  When President Obama took office, Senate Republicans imposed a new 
standard. Just 2 days after he was sworn in, a group of extreme 
conservative activists instructed Senator McConnell to treat President 
Obama's judicial nominees in an ``unprecedented'' way, and that is what 
he did. For the first time, even noncontroversial district court 
nominees were subject to filibusters--Leader Reid was at one time 
forced to file for cloture on 17 of them in a single day because of 
Republican obstruction, even though none were particularly 
controversial and many actually had the support of their home State 
Republican Senators.
  Republicans filibustered judicial nominees they ultimately supported. 
They stalled Senate action for weeks and months on judicial nominees 
who they did not oppose and who they ultimately voted to confirm once 
their filibusters ended. Senate Republicans kept making up new excuses 
for filibustering nominees that had nothing to do with the nominees 
themselves. They abused the Thurmond Rule to filibuster Judge Robert 
Bacharach, even though he had been reported almost unanimously and was 
supported by his two very conservative Republican home State Senators. 
It was obstruction for obstruction's sake.

  But the final straw was when Republicans blockaded the DC Circuit. 
The Senate had confirmed four of President Bush's nominees to that 
court, but only one of President Obama's five nominees. When Senate 
Republicans filibustered President Obama's last three DC Circuit 
nominees in late 2013, they barely even bothered to pretend to find 
fault with the nominees themselves. These were mainstream nominees with 
broad support. Their only alleged flaw was that they had been nominated 
by President Obama. Senate Republicans unilaterally decided that 
President Obama should not get to make additional nominations to that 
court, effectively trying to nullify the results of the 2012 election--
a prelude to their unprecedented treatment of Chief Judge Merrick 
  Compare that to the situation we are in this week. We are told that 
we must rubberstamp Judge Gorsuch or the majority leader will change 
the rules. Now, some may remember reports from last year where several 
Senators promised to blockade any Supreme Court nominations by one of 
the Presidential candidates if that candidate won the election. Of 
course, those were Republican Senators talking about Secretary Clinton. 
But that proposed blockade is not what is happening here. The fact is 
that there is a vacancy on the Supreme Court, and that vacancy should 
be filled with a qualified, mainstream judge. I know that a Republican 
President would probably make a different selection than the one I 
would make, but I have always been willing to consult with Presidents 
of both parties to find mainstream, consensus nominees. That is my 
constitutional obligation as a Senator.
  Now, all Presidents, including President Trump, are entitled to have 
their Supreme Court nominees considered on the merits. Over my 42 years 
in the Senate, I have evaluated every nominee on the merits, and I have 
never gone to reflexive partisanship. In fact, I have voted to confirm 
six Supreme Court nominees of Republican Presidents. I do not know if 
there is any Republican in this Senate who could say that about 
nominees of Democratic Presidents.
  Although I had concerns that Judge Gorsuch would bring a partisan 
agenda to the Court, I went to his hearing with an open mind. I had 
hoped he could convince me that he was a conservative I could support, 
as I did Chief Justice Roberts. I voted for Chief Justice Roberts not 
because I thought I would always agree with him--and I do not--but 
because I was able to take him at his word that he did not have an 
ideological agenda. I cannot take Judge Gorsuch's word that same way.
  It is no secret that Judge Gorsuch is very conservative--that much 
was evident back in 2006 when he was confirmed to the Tenth Circuit. 
Back then, he did not have a judicial record, but he gave answers that 
were reassuring. He discussed the importance of following precedent and 
of judicial restraint and deference to Congress. He said, ``Precedent 
is to be respected and honored. It is not something to be diminished or 
demeaned. It is something you should try to uphold wherever you can, 
with the objective being, follow the law as written and not replace it 
with my own preferences, or anyone else's.'' He explained that judges 
should not be ideologues who disregard precedent ``to effect [their] 
own personal views, [their] politics, [their] personal preferences.'' 
Well, I wish that same judge were before us today, but he is not.
  Judge Gorsuch has a fine resume. I do not take issue with the 
qualifications on paper, but my concern is that he has not lived up to 
his own standard. I am concerned that his personal views and his 
politics have permeated throughout his judicial philosophy. That is, in 
fact, the reason why his nomination is before us today.
  To know what kind of a Justice Judge Gorsuch would be, we have to 
understand why he was chosen. President Trump made very clear right 
from the beginning that he had a litmus test: Anyone he nominated to 
the Supreme Court would automatically overturn Roe v. Wade. Then-
candidate Trump proceeded to outsource the selection process to far-
right interest groups. The leader of that unprecedented vetting process 
admitted they were not driven by ``Who's a really smart lawyer and who 
has been really accomplished?'' but by a search for someone ``who 
understands these things like we do.''
  Let us be clear. These are not groups that support independent judges 
who act with restraint. These groups search for nominees who will skew 
the courts, who will call to reject precedent, and who will further 
their partisan agenda. And they gave President Trump a list and said: 
Here, you are allowed to pick from our people. If these groups sought a 
mainstream, widely respected, and independent jurist, they would have 
been as supportive as I was of Chief Judge Merrick Garland. Instead, 
they funneled money to push Senate Republicans to hold Chief Judge 
Garland's nomination hostage and to have the Senate defy the 
Constitution of the United States for the first time ever in not 
allowing advice and consent.
  The Federalist Society's purpose statement, which is on their 
website, calls for ``reordering priorities within the legal system to 
place a premium on,'' among other things, ``traditional values.'' These 
groups and the billionaire donors who fund them have a clear agenda--
one that is antichoice, antienvironment, and procorporate. I am not one 
to gamble, but in my mind they would not have gambled with millions of 
dollars on Judge Gorsuch. They chose and invested in him for a reason. 
They are supremely confident he shares their far-right agenda. So is 
the White House.
  The White House Chief of Staff has said that Judge Gorsuch ``has the 
vision of Donald Trump.'' He said that, with this nomination, ``We're 
talking about a change of potentially 40 years of law.'' It is clear 
that the people who vetted Judge Gorsuch do not want a nominee who will 
``call balls and strikes.'' They want a nominee who will expand the 
strike zone to the detriment of hard-working Americans. We should all 
find that concerning.
  At his public hearing, Judge Gorsuch did nothing to allay my 
concerns. In fact, he solidified them. I cannot recall a nominee 
refusing to answer such basic questions about the principles underlying 
our Constitution. These were fundamental questions that we should ask 
every nominee seeking a lifetime appointment to our Highest Court, but 
Judge Gorsuch would not answer. Some of the questions that I asked him 
were not intended to be difficult. Several could have been answered by 
any first-year law student, with ease; yet, unless we were asking about 
fishing or basketball, Judge Gorsuch stonewalled and avoided any 
substantive response. He was excruciatingly evasive. His sworn 
testimony and his approach to complying with the Judiciary Committee's 
historic role in the confirmation process was, in my view, patronizing.
  Judge Gorsuch claimed that he did not want to prejudge potential 

[[Page S2321]]

That is a valid concern, but only within reason. It should not be used 
to evade questions on long-settled precedent or on the meaning and 
purpose of constitutional provisions. Judge Gorsuch would not even 
state whether he agreed with certain landmark Supreme Court cases such 
as Brown v. Board of Education. He refused to say whether he believes 
that the Equal Protection Clause applies to women. He refused to say 
whether the framers of the First Amendment believed it permitted the 
use of a religious litmus test. He refused to provide information 
regarding his selection by extreme special interest groups and a 
billionaire businessman. And he even refused to confirm whether he 
would continue to recuse himself from matters involving that 
billionaire--as he has done on the Tenth Circuit--even if presented 
with the exact same facts.
  Other Supreme Court nominees have been far more forthcoming. When 
asked whether he agreed with important precedents, then-Judge Alito 
answered the questions. When I asked then-Judge Roberts whether 
Congress has war powers, he said, ``Of course. The Constitution 
specifically gives that power [to declare war] to Congress.'' I asked 
whether Congress has the power to stop a war, and he said, ``Congress 
certainly has the power of the purse,'' but added, ``as a judge, I 
would obviously be in a position of considering both arguments, the 
argument for the Legislature and the argument for the Executive. The 
argument on the Executive side will rely on authority as Commander in 
Chief, and whatever authorities derive from that.'' It was perhaps not 
the answer I would have liked, but he certainly engaged with the 
question and showed that he understood the issue in a way that did not 
prejudge any potential case.
  I later asked then-Judge Roberts whether ``Congress can make rules 
that may impinge upon the President's command functions.'' He 
responded: ``Certainly, Senator. The point that Justice Jackson is 
making there is that the Constitution vests pertinent authority in 
these areas in both branches. The President is the Commander in Chief, 
and that meant something to the Founders. On the other hand, as you 
just quoted, Congress has the authority to issue regulations governing 
the Armed Forces, another express provision in the Constitution. Those 
two can conflict if by making regulations for the Armed Forces, 
Congress does something that interferes with, in the President's view, 
his command authority, and in some cases those disputes will be 
resolved in Court, as they were in the Youngstown case.'' Whether one 
agrees with it or not, that was a substantive answer.
  I asked Judge Gorsuch a similar question in writing--whether he 
agreed that ``the Constitution provides Congress its own war powers and 
Congress may exercise these powers to restrict the President--even in a 
time of war'' as the Court held in Hamdan v. Rumsfeld. Here is the 
totality of his response: ``I agree that Hamdan v. Rumsfeld recognized 
limitations on the power of the President. It is a precedent of the 
Supreme Court entitled to all the weight due such a precedent.'' 
Perhaps that is better than no response at all, but not by much.
  When I asked Judge Gorsuch a straightforward question about whether 
the Framers of the First Amendment believed it permitted the use of a 
religious litmus test, he refused to answer. Any first-year law student 
knows the answer to that one.
  I asked then-Judge Roberts a similar question--whether he would 
reject Korematsu and hold it unconstitutional to intern U.S. residents 
who ``have a particular nationality or ethnic or religious group.'' He 
said: ``I suppose a case like that could come before the Court. I would 
be surprised to see it, and I would be surprised if there were any 
arguments that could support it.'' I do not think he prejudged any 
cases, but he was still able to provide a real answer to a basic 
question--and he earned my support.
  I had hoped that, if Judge Gorsuch was not willing to be transparent 
for the lights and cameras, he would at least answer written 
questions--given time to carefully craft answers. Again, he declined. 
He refused to expressly acknowledge that Congress has war powers, even 
though we know we do. Every high school student knows that the 
Constitution gives Congress the power to declare war. He again 
misstated the holding of Citizens United in an attempt to evade my 
question about Congress's ability to enact campaign finance 
legislation. He provided no answer at all to questions regarding the 
Supreme Court's decision in Shelby County to gut the Voting Rights Act 
or about women's rights to obtain contraception. And, again, he refused 
to answer whether the First Amendment prohibits the President from 
imposing a religious test, even when the Trump administration has 
adamantly claimed such a litmus test is not at issue with his travel 
  Previous nominees respected the Judiciary Committee's constitutional 
role by answering questions in a substantive way, not with mere 
platitudes. The difference is clear to Vermonters. As an editorial in 
the Rutland Herald put it:

       Gorsuch's affable muteness sent a message: I am above the 
     people and their concerns. I have no responsibility to anyone 
     but the narrow band of millionaires and ideologues who have 
     advanced my nomination and to the President who has declared 
     war on the American government.

  Mr. President, I ask unanimous consent to have printed in the Record 
at the conclusion of my remarks the full editorial.
  Judge Gorsuch claimed that his personal views do not matter so he 
would not share them. But that did not stop him from speaking at length 
about overcriminalization and arguing that there are too many Federal 
criminal laws and regulations. Those of us on the Judiciary Committee 
know this is a substantive and controversial policy issue that has been 
vigorously debated in recent years. I have to wonder why this was the 
only issue where he put forward his actual views. That is not good 
enough for me. As the article by Garrett Epps in the Atlantic put it, 
Judge Gorsuch's refusal to answer questions implied that the role of a 
judge is ``a job which calls, apparently, for neither values nor any 
firm connection to human life as it is lived.'' The American people 
know better.
  All of this matters because court decisions, especially Supreme Court 
decisions, are not simply detached applications of neutral principles. 
If there were, all judges would reach the same results. They do not. 
Legal decisions are not mechanical. They are matters of interpretation 
and, often, matters of justice. One Supreme Court Justice said more 
than a century ago: ``When we take our seats on the bench we are not 
struck with blindness, and forbidden to know as judges what we see as 
  Whether he will acknowledge it or not, Judge Gorsuch's record says a 
lot about his judgment and his sense of justice. In a policy role at 
the Justice Department, he embraced broad and discredited assertions of 
Executive power. Judge Gorsuch once complained about liberals relying 
on the courts to vindicate their constitutional rights, but, once on 
the bench, he had no problem rubberstamping the far right's social 
agenda when he ruled that employers could control their employees' 
access to contraception. As a judge, he twisted statutory language to 
limit the rights of workers, of women, and children with disabilities.
  Judge Gorsuch also reached for broad constitutional questions that 
were not before him in order to advance his agenda. Just last summer, 
Judge Gorsuch wrote a concurrence to his own opinion in a case called 
Gutierrez-Brizuela v. Lynch. His unanimous panel opinion decided the 
case on narrow grounds. But Judge Gorsuch nevertheless wrote a separate 
concurrence to argue that the Chevron doctrine should be overturned. 
The Chevron doctrine not only forms the basis for our modern 
government, but it is well-settled law and has been for decades. As 
Emily Bazelon and Eric Posner wrote in the New York Times, ``The 
administrative state isn't optional in our complex society. It's 
  Judge Gorsuch's rejection of that has shown that he is not a 
mainstream nominee. His judicial record demonstrates a partisan 
agenda--a hostility toward our government's power to enact 
environmental, labor, consumer rights, and other regulations that keep 
hard-working Americans safe and ensure a level playing field--not just 
for the wealthy few, but for all hard-working Americans.

[[Page S2322]]

  Between not answering questions, Judge Gorsuch spoke repeatedly about 
the limited role that judges play in our democracy. His actual record 
belies that claim. I think that is precisely why these extreme-right 
interests groups selected Judge Gorsuch. That is why the President's 
Chief of Staff promised he will bring a change of 40 years of law, and 
that is why I cannot support this nomination.
  It is for this nominee that Senate Republicans have brought us to 
this precipice, but perhaps we should not be surprised. Republican 
leadership has sought to govern only by simple majority since day 1 of 
the Trump administration. They paraded before the Senate the most 
extreme and partisan slate of Cabinet nominees I have ever seen. Their 
signature legislative goal--to repeal the Affordable Care Act--
collapsed under the weight of their own intraparty infighting. Then, 
they dusted off the Congressional Review Act and, by party-line votes, 
rolled back more than a dozen environmental, workplace, privacy, 
healthcare, and transparency protections--all over the objections of 
the minority.
  Think about that. Republicans have not sought compromise on anything 
in this Congress. That is not the way to govern. To give you one 
example, they repealed an important internet privacy rule that 
protected Americans' online activity. That means that by party-line 
vote, hard-working Americans will now see their private internet 
activity sold to the highest bidder for greater corporate profits. They 
are allowing these companies to basically come in and spy in your house 
because they are making money.
  But Senate Republicans didn't stop there. They rolled back 
protections to ensure that all students have the same educational 
opportunities. They eliminated rules requiring employers to maintain 
records of workplace injuries so employers could avoid accountability. 
In other words, if you have major injuries, you do not have to keep a 
record of that to make sure nobody knows this is a dangerous place to 
work. They rolled back rules holding coal companies accountable for 
their pollution. Most recently, Republicans undermined healthcare 
access for millions of Americans, rolling back protections under the 
title X program. In underserved communities and rural areas like 
Vermont, title X is critical in making sure women have access to the 
basic healthcare they need.
  But that is what one-party rule gets you. They are great at looking 
out for corporate interests. They struggle at looking out for the 
interests of hard-working Americans. The irony of it all is that even 
these partisan efforts have been too partisan for some Republicans. 
Three times this year--the most of any Vice President since 1911--Vice 
President Pence was forced to make the trip to Capitol Hill to break a 
tie and ensure some of these extreme measures passed.
  With the Gorsuch nomination, Republicans are proving they have 
no interest in playing by the rules; they prefer to break them. The 
unprecedented obstruction of Chief Judge Merrick Garland is going to be 
a permanent stain on this body. But then, days after the 2016 
election--after Republicans turned their back on the Constitution for a 
whole year, even though they had sworn an oath to uphold the 
Constitution, which calls for advice and consent, they refused to 
advise and consent and have a vote on Chief Judge Merrick Garland--
Republican leaders threatened to change the rules to get their own 
nominee through--before we even had a name. After disregarding his 
constitutional obligations for nearly a year, the majority leader now 
tells us we must rubberstamp President Trump's nominee or he will 
forever damage the Senate.

  It is interesting that the majority leader's argument for obstructing 
Chief Judge Merrick Garland was that the American people needed to 
weigh in on this decision, as if they had not weighed in when they 
reelected President Obama in 2012. But when the American people did 
vote last November, nearly 3 million more of them chose Secretary 
Clinton over Donald Trump. In fact, Ezra Klein had it right 2 months 
ago when he wrote that this nomination ``makes a mockery of the popular 
  Mr. President, I ask unanimous that the article, ``The country 
deserves a compromise Supreme Court nominee. Neil Gorsuch isn't one,'' 
by Ezra Klein, also be printed in the Record at the conclusion of my 
  Because of the divergence between the popular and electoral vote, 
Klein argued, ``This is a time, if ever there was one, for a compromise 
nominee, and Gorsuch is not a compromise nominee.'' This is exactly 
what the 60-vote threshold is for. It helps ensure that Presidents 
consult with Senators of both parties and find mainstream, consensus 
nominees. The filibuster protects the rights of the minority and of 
individual Senators; it protects the constitutional role of the Senate, 
and it helps us protect the independence of the Supreme Court. The 
Court is no place for someone with a radical, partisan agenda.
  Senate Republicans are defending their threat to change the rules by 
claiming that Judge Gorsuch is essentially a perfect nominee and that, 
if Democrats filibuster Judge Gorsuch, then we would filibuster anyone. 
That is nonsense. We have asked only for a mainstream nominee. Perhaps 
they are confusing our approach with their blockade of Chief Judge 
Garland. Unlike committee Republicans' treatment of Chief Judge Merrick 
Garland, I take my constitutional duty to independently evaluate a 
President's Supreme Court nominees seriously. As I have said, my votes 
on Supreme Court nominations have never been about reflexive 
partisanship. I have evaluated every nominee on the merits--and I have 
voted to confirm six Supreme Court nominees of Republican Presidents.
  If the Senate does not vote to end debate on this nomination, that is 
a judgment on defects of this nominee. I remind the Republicans that 
they do have a choice here. We can work together with President Trump 
to find a mainstream, consensus nominee. I expect that an actual 
mainstream nominee would be confirmed easily, even if nominated by 
President Trump. Recall the process President Obama used when he 
selected Chief Judge Merrick Garland. He sought advice from both 
Republican and Democratic Members of Congress and was told this was a 
person who would get a solid majority vote. He said: ``We have reached 
out to every member of the Senate Judiciary Committee, to 
constitutional scholars, to advocacy groups, to bar associations, 
representing an array of interests and opinions from all across the 
spectrum.'' President Obama nominated somebody who, in normal times, 
would have gotten the vast majority of votes of Republicans and 
Democrats. If President Trump would have followed that template, we 
would not be in this extraordinary place.
  Let me conclude with this. In the committee, I said I respect this 
institution as much as anyone. I have been here for more than 42 years. 
I have devoted myself to the good the Senate can accomplish. We 100 
Senators stand in the shoes of 320 million Americans. We should be the 
conscience of the Nation. First and foremost, we must do what is right 
by 320 million Americans. And I am not going to vote solely to protect 
an institution when the rights of hard-working Americans are at risk. 
It is for these reasons that I must oppose this nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Rutland Herald, Apr. 5, 2017]

                             No to Gorsuch

       Senate Democrats are prepared to block the appointment of 
     Neil Gorsuch to the Supreme Court, and the Republican 
     majority is prepared to change the Senate rules to push the 
     appointment through anyway.
       Sens. Patrick Leahy and Bernie Sanders are willing to 
     filibuster the Gorsuch nomination, offended by the 
     candidate's evasiveness and alarmed by his ideological 
     rigidity. Mounting a filibuster comes at a cost, however. 
     Senate Majority Leader Mitch McConnell has said the 
     Republicans would rewrite the Senate rules in order to 
     prohibit the use of a filibuster to block Supreme Court 
     nominees. As it stands the Republicans would need 60 votes to 
     shut down debate; if the Republicans change the rules, 
     Gorsuch would need only 51 votes to gain confirmation.
       Elimination of the filibuster on high court nominations 
     worries some Democrats. But what do they have to lose? If 
     they give in to McConnell they will have retained the right 
     to filibuster but would have lost the power to exercise it. 
     Instead, they would have surrendered to one of the most 
     egregious power grabs in the nation's history, allowing the 
     Republicans to place their stamp on the judiciary in order to 
     impose an agenda on the nation that the nation has shown no 
     indication it supports.

[[Page S2323]]

       The Republican campaign to seize dominance of the judiciary 
     must be seen as an effort by narrow interest groups to force 
     measures into the law that the American people would never 
     allow the legislative branch to advance. In order to pursue 
     this agenda, the Republicans have resorted to a contemptuous 
     assault on the role of Congress as the body that must consent 
     to judicial appointments.
       The refusal of the Republicans to allow even a hearing on 
     President Barack Obama's appointment of Merrick Garland to 
     the Supreme Court showed that they were willing to scoff at 
     their own constitutional obligations in service of their 
     ideological and economic loyalties.
       Gorsuch's refusal to answer even the most basic questions 
     about his thinking was an expression of the same contempt for 
     Congress that McConnell displayed in refusing to allow a 
     hearing for Garland. Gorsuch's affable muteness sent a 
     message: I am above the people and their concerns. I have no 
     responsibility to anyone but the narrow band of millionaires 
     and ideologues who have advanced my nomination and to the 
     president who has declared war on the American government.
       Much is at stake with the Gorsuch nomination. His own 
     rulings suggest he adheres to a view that the high court went 
     astray in the 1930s in decisions allowing the federal 
     government to give rule-making power to agencies established 
     to protect workers, consumers, investors, air, water, the 
     purity of food and drugs. There is a cohort of extreme 
     conservatives--President Donald Trump's adviser Steve Bannon 
     is their godfather--who have declared that they want to 
     destroy the ``administrative state.'' Gorsuch's rulings and 
     his refusal to describe his thinking suggest he is one of 
       The filibuster is an antidemocratic tradition in the Senate 
     that allows a minority to block action by refusing to end 
     debate on a measure. It is usually defended as a means to 
     demand from senators comity and a willingness to join with 
     the other side to find middle-of-the road solutions. In 
     normal times, the majority would nominate a centrist justice 
     in order to draw support from both sides so that the minority 
     would not see the need to mount a successful filibuster.
       But these are not normal times. The Republicans have 
     succeeded in getting their way by refusing to compromise, and 
     they will continue to get their way until the Democrats stand 
     up to them. McConnell may ditch the filibuster this time, but 
     he may rue the day after the people revolt against the 
     disaster of the Trump administration and elect a Democratic 
       Leahy and Sanders are taking a necessary and principled 
     stand against the Republican effort to steal a seat on the 
     Supreme Court. The Democrats may not win this battle, but 
     they are on the right side.

                       [From Vox, Feb. 3, 2017.]

 The Country Deserves a Compromise Supreme Court Nominee. Neil Gorsuch 
                               Isn't One.

                            (By Ezra Klein)

       The problem with Neil Gorsuch's nomination for the Supreme 
     Court is not Neil Gorsuch. He is, by all accounts, a 
     brilliant jurist and a kind man. But he is an extremely 
     conservative judge at a moment when an extremely conservative 
     judge makes a mockery of the popular will. For the good of 
     the country and the Court, this moment demands a compromise 
     nominee, and Gorsuch is not that.
       Antonin Scalia's seat came open under a Democratic 
     president and a Republican Senate. This should have led to a 
     centrist nominee. And President Barack Obama tried to offer 
     one: Merrick Garland, who had previously been suggested for 
     the Court by Republican Sen. Orrin Hatch. Republicans did not 
     oppose Garland. They refused to consider him, or anyone else, 
     for the opening. They insisted that no opening on the Court 
     could be filled in an election year--an absurd faux principle 
     which implies that vacancies on the Court must be left 
     unfilled fully 50 percent of the time.
       Having blocked efforts to replace Scalia under Obama, 
     Republicans were relieved when Trump won the Electoral 
     College. But Democrats decisively won the popular vote and 
     gained seats in the Senate. I do not want to overstate this: 
     US elections are not decided by simply tallying up votes. But 
     though the public will doesn't decide elections, it should 
     still weigh on those who hold power. This is a time for a 
     center-right nominee, just as Obama put forward a center-left 
     nominee in Garland.
       The choice is all the more important because the Supreme 
     Court is, itself, a strange and undemocratic institution. It 
     is insulated from popular opinion, and judges serve for life. 
     Forcing it unnaturally out of step with the public is bad for 
     both the Court and the country.
       Senate Democrats have the power to filibuster nominees to 
     the Supreme Court. I don't agree with those who think 
     Democrats should filibuster anyone who isn't Garland, as Sen. 
     Jeff Merkley is threatening. But Democrats should insist on a 
     compromise nominee--it would be wise of them to offer a 
     realistic list of more centrist candidates--and use the 
     filibuster to give their position teeth.
       It's true that Republicans could eliminate the filibuster 
     with only 51 votes, but it's not clear why that's relevant. 
     If the Supreme Court filibuster will be eliminated the moment 
     it's used, then it's a fiction, and there's little cost to 
     seeing it unmasked as such. If Republicans would prefer to 
     destroy the filibuster than make any accommodation to the 
     majority of voters who wanted a Democratic president to be 
     making this pick, then that's their prerogative--at least the 
     Democrats' base will know their legislators did their best. 
     Democrats need not be in the business of protecting a 
     filibuster they cannot use.
       It's a mistake to see Supreme Court nominations as about 
     the individual's resume rather than the country's wishes. If 
     the question is whether Gorsuch is qualified to be on the 
     Court, of course he is. But that's not the question. The 
     question is whether Gorsuch should be on the Court--whether 
     he is the right pick for this moment, and for the decades in 
     which he's likely to serve. He is not.
       Republicans lost the popular vote in the presidential 
     election preceding Scalia's death. They lost the popular vote 
     in the presidential election after Scalia's death. The will 
     of the people might not be all that matters in politics, but 
     nor should it be meaningless. This is a time, if ever there 
     was one, for a compromise nominee, and Gorsuch is not a 
     compromise nominee. Republicans do not need to nominate a 
     liberal, but Democrats should insist they nominate a justice 
     more in the mold of Anthony Kennedy than Scalia.
       The Supreme Court is undemocratic enough as it is. It does 
     not need to be made more so.

  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER (Mr. Cotton). The Senator from California.
  Mrs. FEINSTEIN. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Democrats have approximately 36 minutes 
  Mrs. FEINSTEIN. Mr. President, I rise today as the ranking member of 
the Judiciary Committee to speak about the nomination of Judge Neil 
Gorsuch to the Supreme Court of the United States.
  In committee, at the outset of the hearings, I remarked that our job 
was not to evaluate legal doctrines and theories or to review Judge 
Gorsuch's record in a vacuum. Our job is to assess how this nominee's 
decisions will affect the American people and whether he will protect 
the legal and constitutional rights of all Americans.
  I have had this in mind throughout the entire process. Let me begin 
with an aside. I represent a large State, and I do pay close attention 
to constituent letters, calls, and emails. A weekly report lets me know 
on what issues people are focused and what they think. I take this 
feedback very seriously.
  In general, my barometer has been that when I receive over 30,000 
calls, emails, or letters, that is when I know an issue is reasonably 
meaningful to many people in the State. To be clear, I don't base my 
final judgment on any issue or nominee solely on the numbers of calls 
and letters I receive. However, this is a representative democracy. I 
find this to be an important measure of what California constituents 
are thinking.
  When it comes to this nomination so far, my office has received a 
total of 112,309 calls, emails, and letters from California 
constituents; and 92,799, or 83, percent, oppose this nominee and 
19,510, or 17 percent, support this nominee.
  Let me read a few of the emails. One constituent from Silverado, CA, 

       ``In 1971, when abortion was illegal, I was forced to have 
     a child at age 16. That was 46 years ago. With Gorsuch, we 
     would step back into that world where women and girls have NO 
     choice but an illegal and unsafe abortion OR become a mother. 
     It is wrong. The choice is untenable and dangerous. 
     Filibuster Gorsuch and do whatever it takes.''

  I was a college student in the 1950s, and I remember very much what 
life was like before a woman had the right to privacy, to control her 
reproductive system according to Roe v. Wade.
  Another constituent from San Diego emailed:

       ``As a beneficiary of the right to marry 3\1/2\ years ago, 
     I personally understand how important Supreme Court decisions 
     are. I also attended a segregated elementary school when I 
     was a little boy. I do not trust that Neil Gorsuch would 
     advocate for the best interests of women & minorities. Please 
     do not confirm him.''

  A woman from Richmond, CA, wrote:

       ``I believe that we, the people, will have a difficult time 
     getting fair and equal treatment with Gorsuch being on the 
     Supreme Court. He will help the rich corporations, and the 
     poor and middle-class will suffer irreparably.''

  I don't comment on any of these because none of these are sacrosanct, 
but they are opinions.
  Brandon Gregg from Burlingame wrote:

[[Page S2324]]


       ``The republicans did not give Merrick Garland a hearing, 
     instead waiting until Trump could propose a young right-
     leaning judge who will take our country backwards. Gorsuch 
     will not advance the agenda of human rights within our 
     Constitution, but will plunge us back into the past where 
     minorities had little protection, women did not have equal 
     rights, people of color were denied the right to vote, and 
     protections for all people that we take for granted, did not 
     exist. This is not the world I want for myself, my children, 
     or my grandchildren. Filibuster Gorsuch's confirmation. 

  The bottom line is that Californians are letting me know loud and 
clear that who sits on the Supreme Court matters. Unfortunately, up to 
now, much of the press coverage on this nomination has been about 
politics and process.
  In contrast, little has been said about how the Supreme Court affects 
the lives of Americans, their families, and their communities. So, let 
me say, in the past 24 years that I have been a member of the Judiciary 
Committee, I have seen that the Supreme Court is, in fact, the last 
word in so many areas: the personal rights of all Americans, including 
whom they can marry, and whether women have the right to privacy that 
allows them to control their own bodies.
  The Supreme Court determines whether decisions about healthcare will 
be determined by families or businesses. The Supreme Court has the 
final say on whether States and localities will be able to pass laws 
that make it harder for low-income people, people of color, seniors and 
students to vote. The Supreme Court will decide whether corporations 
are able to pollute our air and water with impunity.
  It is the Supreme Court that will be the final world on Executive 
authority, whether it is used to waterboard, detain individuals 
indefinitely, or overreach in other ways.
  Each year, more than 350,000 civil and criminal cases are filed in 
Federal courts. The Supreme Court hears arguments for only about 80 
cases a session and makes decisions on approximately 50 more cases 
without hearing arguments.
  Now, this means the Supreme Court only hears a very small percentage 
of cases--less than 0.02 percent.
  Before the current vacancy, the most significant questions were 
closely decided by 5-to-4 decisions, with five votes coming from 
Republican-appointed Justices.
  These include important decisions that affect our elections, like 
Shelby County and Citizens United, decisions that weakened the power of 
average voters by expanding the role of dark money and gutting a key 
provision of the Voting Rights Act. We also saw a 5-to-4 decision in 
Heller that overturned 70 years of precedent on the Second Amendment 
and blocked the District of Columbia's commonsense gun regulations.
  As my colleague Senator Whitehouse outlined in the Judiciary 
Committee, in the last several years, this Supreme Court has issued an 
additional 11 5-to-4 decisions that promote the rights of corporations 
over the rights of everyday people, on topics as wide-ranging as age 
discrimination and harassment to limiting access to courts and juries.
  So who sits on the Supreme Court matters. Just look at some of the 
key cases that have come down since this vacancy arose last year. For 
example, the Supreme Court deadlocked 4-to-4 on a case to determine 
whether unions are able to fight for fair pay and benefits for all 
workers by requiring them to contribute to a union's action on their 
  We know this issue will go back to the Supreme Court. If, next time 
the Court rules against unions like the California Teachers 
Association, it will be overturning a 40-year precedent known as 
``agency shop,'' and it will permit an assault on worker's rights.
  Also last year, the Supreme Court considered the case on North 
Carolina's law that reduced early voting days, eliminated same-day 
registration, and established new restrictive photo ID requirements to 
vote. The Fourth Circuit struck down North Carolina's law concluding it 
had ``targeted African Americans with almost surgical precision.'' Yet, 
when the Supreme Court considered it, they deadlocked 4 to 4. Who sits 
on that court matters.
  After 4 days of hearings and reviewing Judge Gorsuch's record, we 
have learned that he, indeed, has strong views of what the law should 
be and how it should be interpreted. While Judge Gorsuch was not 
responsive to many questions, he did tell us that he is happy to be 
called an originalist, and that he embraced the term. He also stated 
that he believes judges should look to the original public meaning of 
the Constitution when they decide what one of its provision mean.
  According to him, ``the Constitution isn't some ink blot on which 
litigants may project their hopes and dreams. . . . but a carefully 
crafted text judges are charged with applying according to its original 
public meaning.''
  Original public meaning--that takes us back to 13 colonies, 4 million 
Americans, and 1789. I find this originalist judicial philosophy to be 
deeply troubling. It essentially means that judges and courts should 
evaluate all of our constitutional rights and privileges as they were 
understood in 1789. To freeze our understanding of the Constitution in 
1789, I think, ignores the Framer's intent. But more importantly, it 
would ignore the vibrancy and growth of our Nation.
  We are no longer a society that condones slavery. We no longer permit 
segregation. We do not allow child labor. We recognize that women not 
only deserve an education but can be leaders in business, government, 
and their homes.
  We cannot turn the clock back 230 years.
  As Justice Brennan said, asking judges to resolve legal questions by 
looking only to what people believed when our country was founded was 
``little more than arrogance cloaked as humility'' that ``while 
proponents of this facile historicism justify it as the 
depoliticization of the judiciary, the political underpinnings of such 
a choice should not escape notice.'' After all, ``[t]hose who would 
restrict [legal claims] to the values of 1789 specifically articulated 
in the Constitution turn a blind eye to social pro-
gress. . . .''
  This is Justice Brennan's speech in 1985 at Georgetown University. 
This is an important point that I think bears repeating. A judge's 
decision to adopt an originalist philosophy is inherently political 
because it discounts the expansion of constitutional protections beyond 
White men who owned property. Yes, that is the way it was back then.
  The U.S. Constitution, I deeply believe, is a living document 
intended to evolve as our country evolves. We are not supposed to 
ignore social progress, and I don't believe the Founders of our country 
ever intended us to do so.
  Another concern with Judge Gorsuch's record is his extreme, 
conservative view of the Federal Government. For example, he has 
indicated he believes the longstanding legal doctrine that allows 
agencies to write rules to effectively implement laws should be 
overturned. That doctrine, as the Presiding Officer well knows, is the 
Chevron doctrine. It was discussed in committee.

  Chevron was itself a unanimous opinion authored by the liberal 
Justice Stevens and joined by conservatives, including Chief Justice 
Burger. This legal doctrine has been in place for decades and has been 
cited more than 15,000 times. If Chevron is overturned, as Judge 
Gorsuch has advocated, many important laws that Congress has passed 
would become ineffective.
  I want to give a personal example.
  In 2007, Senator Olympia Snowe and I finally passed legislation, 
thanks to Senator Ted Stevens and Dan Inouye, to increase the mileage 
efficiency of cars. This was critical to address because pollution was 
clouding up our cities, and it was important to improve the functioning 
of our automobiles.
  Our legislation required the Department of Transportation to set 
standards so that fuel economy would increase at least 10 miles per 
gallon over 10 years--that is the time we could foresee--and continue 
to rise after that. We instructed the agency to achieve the ``maximum 
feasible average fuel economy'' and directed the Secretary of 
Transportation to consider ``technological feasibility, economic 
practicality, the effect of other motor vehicle standards of the 
government on fuel economy, and the need of the United States to 
conserve energy.'' That is directly from the bill.
  Here is the result. It has just been announced that this program will 
raise fuel economy to more than 50-miles per

[[Page S2325]]

gallon by 2025. I think the specifics were 54 miles to the gallon.
  This would have been impossible in 2007 when we were trying to pass 
the bill. We could not possibly understand, 10 years hence, technical 
details of specific automobile efficiency technologies and how they 
would develop in the decades to come.
  Federal agencies simply must play a role. We need their technical 
expertise and ongoing involvement to ensure the legislation we pass is 
implemented effectively--as intended by Congress.
  In committee, I discussed Judge Gorsuch's textualist view. This means 
that he believes statutes should be interpreted only by ``the plain 
meaning of the language.''
  Combined, this judicial philosophy includes: One, limiting laws and 
statues to a dictionary definition that he selected. Two, reversing 
precedent to say that agencies can't interpret ambiguous laws. Three, 
reinstating a legal doctrine to further limit agency experts. Taken 
together, these three points would require Congress to pass bills so 
that they are either so specific that they would be very limited in 
effect or so broad they would actually be meaningless.
  For example, Senator Collins and I have been working on legislation 
that would require the FDA to ensure the safety of personal care 
products such as we all use--shampoo, deodorant, cosmetics, shaving 
creams, lotions. The FDA does not do it in this country, but they do it 
in Europe. Our bill asks the FDA to evaluate the safety of the 
chemicals that are put in these products.
  In committee, we had testimony about a shampoo that once used, hair 
fell out of the individual's head and many thousands of complaints had 
been registered.
  Congress does not have the expertise to do the chemical evaluations, 
and without deference to the FDA, the bill would have to be thousands 
of pages long to cover every contingency for every product made by 
hundreds of companies, and that simply is not workable.
  If Congress can no longer rely on Federal agencies, and if all laws 
can only be interpreted by limited dictionary definitions, then 
government would have no ability to regulate markets, defend against a 
financial crisis, protect workers, build safe roads, or safeguard our 
  We depend on the scientists, the biologists, the economists, the 
engineers, and other experts to help ensure that our laws are 
effectively implemented. So this is really a dastardly controlling 
  Under the arguments proposed by Judge Gorsuch, this would no longer 
  Instead, only congressional action would be able to address these 
important issues. These rules that agencies would bring would have to 
be written by Congress. And even that would be severely limited. Such a 
radical change in law would hurt ordinary Americans, certainly their 
safety, and certainly our communities.

  Let me say once again that who sits on the Supreme Court matters.
  The issues facing our country are consequential, and they have a 
real-world impact on all of us. Justices on the Supreme Court must 
understand that the Court's decisions have real-world consequences for 
men, women, and children across our Nation.
  Unfortunately, based on Judge Gorsuch's record at the Department of 
Justice, his tenure on the bench, his appearance before the Senate, and 
his written questions for the record, I cannot support this nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.

                         Miners Protection Act

  Mr. MANCHIN. Mr. President, I rise today, as I have risen so many 
times, basically for all of us to understand that we have the greatest 
country on Earth, a superpower of the world.
  If you want to know the backbone of the United States of America, 
look up in the stands. These are the United Mine Workers of America, 
who made us the country we are today. They gave us the life we have and 
our freedom, and for people not to understand that makes no sense to me 
at all.
  All I am asking is for my colleagues to understand that the miners 
protection simply is this: Keep your promise, the promise that we made 
basically to all the miners who have given their lives. They have given 
everything they have--their blood, sweat, and tears basically for us to 
have energy for this country of ours. Now all they are asking is: Can't 
we at least keep our healthcare? Can't we at least keep our pensions? 
We have worked for that. We have negotiated for that. Every contract 
they negotiated basically was a give-and-take proposition so that they 
would be able to continue to have this after they retire.
  For a lot of our colleagues and comrades who have passed away, the 
widows and families they leave behind are still dependent on this 
  We have been fighting for this. On April 28, we are going to lose it 
again--April 28. I know the way things work around here. Someone will 
come down and say: Well, we have negotiated a little extension.
  I want to make sure everyone is on notice: We will use every vehicle 
we can, absolutely every pathway that we can to make sure we will not 
leave here until we have our miners protected. Our miners will be 
protected with their healthcare and their pensions.
  All 48 Democrats are united. Many of our colleagues on the Republican 
side have joined us or are willing to join us. All we are asking for is 
that vote.
  I want to make it very clear: We will do anything and everything that 
we must. We have been very patient, but I am not going to have another 
notice sent out to our retired miners, to their families, to their 
widows saying: Well, we have given you another 90-day or 120-day 
extension. That is not going to happen this time. That is my commitment 
to them and their families. That is my commitment, basically, to the 
people who have depended on them.
  Really, each and every one of us in this great country of ours should 
say thank you to them for the job that they have done.
  We will fight this and we will continue to fight this onslaught, and 
I can't figure out why.
  In October, 16,300 of our Nation's coal miners and their families 
were told that they would lose their healthcare on December 31. Then we 
extended it.
  Can you imagine an elderly person receiving a notice the first of 
February, the end of January that says: Guess what, in 90 days, you are 
going to lose it again because we gave an extension until April of this 
  I can't understand it at all. I don't know how anybody could be that 
  The cosponsors are working with us. We have held firm. The White 
House knows that we are serious about this. The President himself has 
given me his verbal support. I need him now to either tweet or call 
Senator Mitch McConnell, our majority leader, and tell him it is time 
to act. It is time for Mr. McConnell, the Senator from Kentucky, our 
friend from my neighboring State, to act. That is all we are saying.
  President Trump, if you are listening to me, if you are watching, 
please tweet out: Mitch, help us. We need you.

                   Recognition of the Minority Leader

  The PRESIDING OFFICER. The Democratic leader is recognized.

                  Welcoming West Virginia Coal Miners

  Mr. SCHUMER. Mr. President, before I begin the substance of my 
remarks, I want to first welcome our coal miners from West Virginia 
here, and I thank them for the hard work they have done through the 
years to make America the outstanding country that it truly is.
  Also, I want to tell you, first, your Senator from West Virginia--you 
don't have a better fighter than in anyone but him. Second, I am 
totally committed to making this happen for you, and I will do 
everything in my power. Our entire caucus--all 48 of us--are completely 
behind you.
  I thank my friend from West Virginia.
  Mr. President, as each hour brings us closer to the cloture vote on 
the nomination of Judge Neil Gorsuch to the Supreme Court and a 
potential rules change if that vote fails, I rise this afternoon to 
entreat my friend, the majority leader, to step back from the brink.
  As I and so many other of my colleagues have made clear, we Democrats 
have principled reasons to vote against this nominee on tomorrow's 
cloture vote. First, he has instinctively favored corporate interests 
over average

[[Page S2326]]

Americans. Second, he hasn't shown a scintilla of independence from 
President Trump. And third, Judge Gorsuch, based on his record and 
history, has a deeply held, far-right special interest judicial 
philosophy that is far out of the mainstream.
  He was selected from a list developed by the very hard-right, special 
interest Heritage Foundation and Federalist Society. The Washington 
Post, after analyzing his decisions on the Tenth Circuit, concluded 
that Judge Gorsuch may be the most hard, conservative Justice on the 
bench, to the right of even Justice Thomas.
  It may seem abstract to many Americans, but Judge Gorsuch's judicial 
philosophy matters a great deal. It will affect dozens of decisions and 
decades of jurisprudence that could have far-reaching consequences on 
the lives of average Americans.
  As Emily Bazelton in the New York Times put it: ``[T]he 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.''
  If that philosophy becomes the majority view on the Supreme Court, 
average Americans are in big, big trouble.
  The prospect concerns almost every Democrat here in this body, enough 
to prevent cloture on Judge Gorsuch's nomination tomorrow.
  This leaves the majority leader and my Republican friends with a 
choice: Break the rules of the Senate or sit down with us Democrats and 
the President to come up with a mainstream nominee who can earn enough 
bipartisan support to pass the Senate.
  We Democrats believe the answer isn't to change the rules; it is to 
change the nominee, as Presidents of both parties have done when a 
nominee fails to earn confirmation. Instead, my Republican friends seem 
intent on breaking the rules for Judge Gorsuch and are trying to find 
reasons to justify it.
  The truth is, each side can blame the other. We believe they are more 
in the wrong. They believe we are more in the wrong. The game of 
pointing fingers and ``they started it'' can go back and back and back 
to the very founding of the Republic.
  If my Republican friends think that they have to change the rules 
because this blame game has gotten so far out of hand that Democrats 
will never pass a Republican-nominated Supreme Court Justice, I would 
remind them of Justices Alito and Roberts, two conservatives who, 
nonetheless, passed the Senate, having met a 60-vote bar. That was 
during a pretty contentious time as well.
  If my Republican friends think that what we Democrats did in 2013 was 
so wrong and that is the reason to break the rules, I would remind them 
that the only reason we changed the rules was because the Republican 
minority in the Senate had forced cloture petitions to be filed on more 
nominees under President Obama's first 5 years than in all the 225 
years before him combined. They forced the majority leader to file more 
cloture petitions for President Obama's nominees than all the cloture 
petitions filed from George Washington through George W. Bush.
  When we Democrats changed the rules, however, we purposefully left 
the 60-vote bar for the Supreme Court intact because we knew, as the 
Republicans know, that the Supreme Court is different. Justices on the 
Supreme Court don't simply apply the precedents of a higher court. They 
set the precedents. That is why Justices should be mainstream enough to 
garner substantial bipartisan support.
  If the majority leader breaks the rules tomorrow--that is his 
choice--he would be forever unwinding that important principle, erasing 
the last shred of bipartisanship in the Senate confirmation process.
  If my Republican friends think a filibuster on Judge Gorsuch is so 
wrong that they have cause to break the rules, I would remind them that 
almost every one of them lined up behind the majority leader when he 
vowed mere hours after the death of Justice Scalia that President Obama 
would not get to fill a Supreme Court seat, despite 11 months left in 
his Presidency. That was much worse than a filibuster. Even my friend, 
the Republican Senator from Tennessee, called it ``audacious.'' But I 
think Representative Adam Schiff of California said it best: ``When 
McConnell deprived President Obama of a vote on Garland, it was a 
nuclear option. The rest is fallout.''
  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. The majority leader 
himself has stipulated--this is Mitch McConnell's quote: ``In the 
Senate . . . it takes 60 votes on controversial matters.'' On the other 
hand, there is absolutely no precedent, rule, tradition, or custom that 
can justify what the Republicans did to Merrick Garland, none.
  The two are not equivalent. Over the long history of partisan combat 
over judicial nominations, of course there is blame on both sides. We 
don't believe the blame should be equally shared between Republicans 
and Democrats.
  The Republican Party has been far more aggressive in employing new 
tactics and escalating old ones to fight the nominees of a President of 
the opposing party. The Republican Party has been far more aggressive 
in their selection of judicial candidates, picking judges who have an 
ideology closer to the conservative extremes of American politics, 
while Democrats have tended to select candidates closer to the center.
  Keep this in mind: The last time a Republican-controlled Senate 
confirmed a Supreme Court nomination of a Democratic President was 
  Let me repeat that amazing fact. The last time a Republican-
controlled Senate confirmed the Supreme Court nomination of a 
Democratic President was 1895.
  So we can argue endlessly about where and with whom this all started. 
Was it the Bork nomination, which received a vote in a Democratic 
Senate, by the way? Or was it the obstruction of judges under President 
Clinton? Was it when Democrats blocked a few judges under President 
Bush or when Republicans forced Democrats to file more cloture 
petitions in 5 years of President Obama's Presidency than during all 
other Presidencies combined? Was it Judge Garland or Judge Gorsuch?
  Wherever we place the starting point of this long, twilight battle 
over the judiciary, we are now approaching its end point. We are 
nearing the final hour, and the stakes are considerable.
  After the cloture vote on Judge Gorsuch, Democrats will have been 
denied Merrick Garland due to tactics we felt were unfair and 
Republicans will have been denied Judge Gorsuch because of tactics they 
think are unfair. Our two parties have traded bitter blows. In the 
tortured history of the Scalia vacancy, the debate has been saturated 
with contradiction. But in a very real sense, even though each side 
thinks their side is more right than the other, neither side is happy 
with how we got here.
  Now we are standing on the brink of an irrevocable change to the way 
this body conducts business. As the majority leader once said: Changing 
the rules is a bell that is very hard to unring.

  As the clock ticks steadily toward tomorrow, what are we going to do? 
I, for one, would like to see us step back from the brink. As the 
Democratic leader, I still hope that I can sit down with the Republican 
leader and find a way out of this pernicious cycle. I believe that as 
leaders of our respective caucuses, it is at least up to us to try for 
the sake of the Senate. The Republican leader and I disagree on a great 
many things, but we agree upon the importance of the Senate in American 
life. We can decide today to commit to solving this problem. Each side 
can stop pointing fingers. Each side can lay down their arms. Each side 
can put aside the resentments built up after years of trench warfare on 
nominees. We can decide today to talk about a way out of this impasse 
instead of changing the rules.
  We both lost Supreme Court nominees. We shouldn't also lose a 
longstanding rule of the Senate that encourages our two parties to work 
together to fulfill one of the Senate's most important functions.
  So the option to sit down with us Democrats and talk about a new 
nominee who can gain sufficient bipartisan

[[Page S2327]]

support remains on the table right now. I hope my friend the Republican 
leader thinks about where we are headed and takes a moment to let 
reason and prudence prevail over rancor and haste.
  Just as the majority leader holds the power to exercise the nuclear 
option, he also has the power to avoid it. If the majority leader is 
willing to cooperate in a bipartisan way, if he is willing to sit down 
with us in good faith and try to find a way out, he will find an open 
door and an open mind, and maybe, maybe we can for the moment avoid an 
outcome that no Senator from either side wants to see.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Toomey). The Senator from Ohio.
  Mr. BROWN. Mr. President, I ask unanimous consent for 3 minutes--1 
for Senator Donnelly, 1 for Senator Casey, and 1 for me. I thank 
Senator Boozman for the time to talk for 3 minutes on the mine workers 
healthcare law.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                         Miners Protection Act

  Mr. BROWN. Thank you, Mr. President.
  I rise today on the seventh anniversary of the tragedy of the Big 
Branch Mine, where 29 mine workers were killed. There is no better way 
to ask this Senate to do the right thing on extending healthcare for 
mine workers permanently.
  We have seen far too many times where mine workers in Ohio, West 
Virginia, Kentucky, and all over this country, the retired mine workers 
or their widows get a letter in the mail saying their healthcare is 
about to be canceled. We kick the can down the road for 3 or 4 months 
at a time. That is not acceptable.
  It is up to this Senate this month to make sure that we fix this once 
and for all so that mine workers who did so much for their communities 
and their families and their country can be assured that they will have 
healthcare for the rest of their lives as President Truman promised.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. CASEY. Mr. President, I want to add to the remarks of Senator 
  We had a process; the Presiding Officer was a part of this, as well, 
in the Finance Committee getting the Miners Protection Act through the 
Finance Committee, 18 to 8. It should have been voted on by the end of 
the year so these miners could have certainty with regard to healthcare 
and pensions, and our government could keep our promise to those 
  Our government has not kept its promise to coal miners, and some of 
them are here today in Washington. It is about time our government kept 
our promise. They kept their promise to their company, to their 
country, and every promise that they have been asked to keep. It is 
time that we did our job here in the Senate. Get this legislation 
passed in the month of April.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. DONNELLY. Thank you, Mr. President.
  For the third time in the last year, I stand on the Senate floor in 
support of thousands of retired coal miners and their families across 
Indiana and the United States. If Congress doesn't act, many of the 
miners will lose their health benefits at the end of this month.
  There are a lot of important issues facing us here, but few have such 
high stakes. Retirees are receiving letters telling them that their 
health insurance will soon run out. This is a promise that was made and 
a promise we have to keep. We have less than 30 days.
  Let's do the right thing. Let's do the right thing and enact a 
permanent solution. I strongly urge my colleagues to take action 
immediately and ensure that our retired miners receive the health 
benefits that were promised to them by the U.S. Government.
  I yield back, Mr. President.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BOOZMAN. Mr. President, the Senate is at a crossroads. Senate 
Democrats at the behest of far-left activist groups are leading the 
charge to break a 230-year-old precedent of confirming Supreme Court 
nominees by a simple majority vote. Why?
  Well, when you go down the list, there is only one reason. That 
reason is not based on substance or reality; it is purely partisan. 
Judge Gorsuch is eminently qualified. That does not seem to be in 
dispute. His credentials are exceptional. His resume is impressive. His 
judicial demeanor, professional competence, and integrity all exceed 
what you expect in a nominee for the highest Court in the land.
  Judge Gorsuch checks every box, so much so, that the American Bar 
Association gave Judge Gorsuch its highest rating. The ABA's 
assessment, mind you, has been referred to by the minority leader as 
the ``gold standard'' when it comes to evaluating a nominee's fitness 
to serve on the Court. Senate Democrats must be concerned about Judge 
Gorsuch's past then. Again, that is not the case. No one was able to 
dig up anything remotely resembling a scandal in Judge Gorsuch's past 
during this process. You can't manufacture a controversy where none 
exists. Nothing about Judge Gorsuch has come to light during this 
confirmation process that could conceivably merit blocking a vote on 
the nominee.
  I have heard some Democrats try and argue that Judge Gorsuch is out 
of the mainstream. That hasn't stuck, either. This is a judge who has 
been with the majority of the Tenth Circuit Court of Appeals 99 percent 
of the time, and 97 percent of his decisions were unanimous. Judge 
Gorsuch is about as mainstream as you are going to find.
  Editorial boards from newspapers across the country, including USA 
Today, have written in support of his nomination. Does anyone honestly 
believe that USA Today, which is far from a conservative newspaper, 
would support confirming Judge Gorsuch to the Supreme Court if he were 
out of the mainstream?
  Now Senate Democrats are seemingly creating new standards out of thin 
air to justify this blatantly partisan action. According to the talking 
points, the nominee is now expected to tell the Senate and the American 
people exactly how he or she would rule on matters that may come before 
the Court, especially the instances where the activist base has a very 
keen interest. As the Judiciary chairman rightly pointed out, the 
standards set by Justice Ginsburg in her confirmation hearings that it 
would be inappropriate for a nominee to offer hints or make commitments 
on matters that may come before the Court have been adhered to ever 
  This leaves Senate Democrats with a filibuster that lacks a reason. 
The minority leader has suggested that the Senate abandon Judge 
Gorsuch's nomination if cloture is not agreed to and ask the President 
to submit a new nominee. This demand rings hollow. Here is the truth: 
If this nominee cannot get the Senate Democrats' blessings for a vote, 
then no nominee put forward by the President can.
  Again, we are talking about a top rung in his profession. Judge 
Gorsuch is well qualified, and he was unanimously confirmed to the 
Tenth Circuit Court of Appeals. As I mentioned earlier, he received the 
highest possible rating after an exhaustive evaluation from the 
American Bar Association.
  Senate Democrats failed to create outrage and controversy over Judge 
Gorsuch's nomination because there is simply none to be found, but that 
didn't stop them. They made this amazing 180-degree turnaround. Senate 
Democrats who just last year pushed for an immediate vote at the height 
of a contentious Presidential election now appear to be fine with 
leaving that seat vacant literally for years. Just last year the 
minority leader sounded the alarm about the judicial chaos a deadlocked 
Court could lead to. He appears to be no longer concerned about that. 
By this logic, a vacancy on the Supreme Court for a few months would be 
a devastating blow to democracy, but one held vacant for years would be 
acceptable. This makes absolutely no sense. The only explanation for it 
is that Senate Democrats expect to be voting on a nominee put forth by 
a Democratic administration, not one put forth by President Trump.
  Judge Gorsuch will be confirmed to the Supreme Court this week. It is 
unfortunate that we may have to break longstanding precedent to do so, 
but Senate Democrats actually are to blame for that.

[[Page S2328]]

  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. Mr. President, we heard famously that elections have 
consequences, and over the next few days we will have an experiment in 
what I call ``the physics of politics.''
  For every action, there is an equal and opposite reaction. If the 
Democrats use for the first time a partisan filibuster of a Supreme 
Court nominee, we will have an equal and opposite reaction. An 
unprecedented action is going to evoke an unprecedented reaction.
  Neil Gorsuch deserves to be confirmed, and I want to share for the 
next few minutes why. For more than 2 months since the nomination was 
first announced, we have seen that Judge Neil Gorsuch possesses the 
qualifications and the temperament to serve as our next Supreme Court 
  While all nominations carry enormous responsibility, this is arguably 
the most important position we are tasked with filling. We need someone 
who is extraordinarily qualified, someone who will respect the 
foundation of our country, someone who has the mental resilience to 
stay above the political fray. Some of my friends on the left have 
called Judge Gorsuch unqualified, too conservative, and someone who is 
simply not in the judicial mainstream.
  Judge Gorsuch started his legal career by earning degrees from not 
one, but two Ivy League schools--Columbia University for his undergrad, 
Harvard Law for his juris doctor, graduating cum laude. Even as a 
Marshall Scholar, he earned a doctorate degree from Oxford. When one 
takes into account these extraordinary educational achievements, it 
would be simply incomprehensible that anyone would consider him 
  His record on the bench is just as impressive. We have heard these 
numbers so many times that we sometimes just gloss or glaze over these 
numbers, but these numbers are powerful indicators of how successful he 
has been as a judge. Out of nearly 2,700 cases, Judge Gorsuch has been 
overruled only twice--98 percent of his opinions were unanimous, 
further proving that he falls exactly square in the judicial 
mainstream. He has received ``well qualified,'' as my Senator from 
Arkansas just stated a few minutes ago, from the American Bar 
Association, the highest rating available for a Supreme Court Justice.
  Judge Gorsuch is also not new to the nomination process. Just a few 
years ago, in 2006, Judge Gorsuch was unanimously confirmed by the U.S. 
Senate to the Tenth Circuit.
  Let me say that one more time because so seldom do we see the Senate 
acting in a unanimous fashion. This, perhaps, is a moment of reflection 
that Judge Gorsuch, in just 2006, received a unanimous vote for the 
Tenth Circuit. Every single Democrat who was serving in the Senate at 
that time voted in support of Neil Gorsuch, including 12 Members who 
are still serving in this Chamber today. His bipartisan support has not 
stopped there.
  Senator Bennet from Colorado says that Judge Gorsuch represents the 
best qualities of Colorado and that we need to fulfill our 
responsibility to this nominee.
  Senator Donnelly, from Indiana, has said: ``I believe he is a 
qualified jurist who will base his decisions on his understanding of 
the law and is well respected among his peers.''
  From West Virginia, Senator Manchin acknowledged that, while he may 
not agree with future decisions that will be made by Judge Gorsuch, he 
also said, without question, that he has ``not found any reason why 
this jurist should not be a Supreme Court Justice.''
  Senator Heitkamp, from North Dakota, said, during her meeting with 
our Supreme Court nominee, that Judge Gorsuch reinforced the importance 
of a judiciary that remains independent from the executive and the 
legislative branches of government.
  Neal Katyal, the former Acting Solicitor General under President 
Obama, said of Gorsuch that he is a first-rate intellect and a fair and 
decent man. The judge's work reflects his dedication to the rule of 
  Last month, throughout his 3-day confirmation hearing, Judge Gorsuch 
provided detailed and thoughtful responses that should have answered 
every concern from committee members. As I watched, I was incredibly 
impressed with his depth of knowledge, his genuine demeanor, and his 
obvious respect for the rule of law. He understands that his job is not 
to make the law. Let me repeat that because this seems to be an unusual 
experience--at least it has been for me--to hear that a judge 
understands and appreciates that his job is not to make the law, that 
his job is not to alter the law but, as he expressed time and again, 
that he is committed to interpreting the law as it is written.
  One of his most memorable comments from his hearing has left a 
lasting impression on me, and I hope it does on you as well.
  He said:

       A judge who likes every result he reaches is very likely a 
     bad judge, reaching for results he prefers rather than those 
     the law compels.

  In one sentence, Judge Gorsuch eloquently summarized what we should 
expect from our Supreme Court Justices, and it also gives insight into 
how he intends to serve once confirmed.
  After his extensive and exhaustive hearing, we clearly see, beyond a 
shadow of a doubt, that this man is more than qualified for the 
appointment. Any argument to the contrary is based purely on political 
  Today, the Senate stands on the verge of breaking historical 
precedence. We have let political disagreements get in the way of a 
judicial seat--a nomination that should stand far above political 
  A year ago, Judge Gorsuch was serving on the U.S. Court of Appeals 
for the Tenth Circuit. He had no idea that he would find himself in the 
midst of a partisan battle. There is no question that this man has led 
an exemplary life and deserves a fair vote.
  We are, simply, asking for a fair vote--a vote. Let us move past 
these political games and confirm a man who has earned this position, 
with a nearly flawless record, as one of the brightest judicial minds 
our country has to offer.
  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. ENZI. 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. ENZI. Mr. President, I rise to offer my support for the 
nomination of Judge Neil Gorsuch to the Supreme Court of the United 
States of America.
  Several weeks ago, shortly after President Trump announced this 
nomination, I came to the floor to say what an admirable choice he had 
made and had known him for some time.
  After meeting with Judge Gorsuch to discuss his nomination and after 
reviewing his qualifications and after observing my colleagues on the 
Senate Judiciary Committee thoroughly vet him, I am all the more 
convinced that this man is eminently qualified to serve as America's 
next Associate Justice of the Supreme Court.
  I was impressed that both of his Senators introduced him to the 
committee for the hearing. I was kind of surprised that the biggest 
comments that I heard about the hearing itself, were that he did not 
answer some of the questions directly. As with previous Justices, they 
do not answer questions directly when they are asked a theoretical 
question about some possible future case that might come before them 
and are without the details.
  Another reason that I am convinced that he is very qualified is that 
the people with whom he went to school have all had good comments to 
say about him. The people he went to law school with have had good 
comments. The people who have been on the bar with him--in the legal 
arena--have had good comments to say about him and so have the other 
judges with whom he has worked through the years as he has moved up 
through the different processes.
  I am confident that he is qualified to be our next Justice because of 
his extensive judicial experience, his commitment to the rule of law, 
and his principled character.
  Neil Gorsuch's first job out of law school was a couple of blocks 
from here. Even back then, he was already preparing to serve his 
country on the

[[Page S2329]]

Supreme Court by learning from some of the best jurists in America. He 
performed clerkships first for the U.S. Court of Appeals for the DC 
Circuit and later for Justices Byron White and Anthony Kennedy at the 
U.S. Supreme Court.
  After working in private practice and at the Department of Justice, 
in 2006 President George W. Bush nominated Judge Gorsuch to serve on 
the U.S. Court of Appeals for the Tenth Circuit. The Senate confirmed 
him by a voice vote. That is unanimous.
  Let me say that again because it is relevant to the misplaced--in my 
opinion--partisan rancor we are hearing over this nomination. In 2006, 
only Lindsey Graham bothered to attend the Senate Judiciary Committee's 
hearing to consider Neil Gorsuch's nomination to the Tenth Circuit 
Court of Appeals. This body--including then-Senators Joe Biden, Hillary 
Clinton, and Barack Obama--was so confident about Neil Gorsuch's 
character and his qualifications to serve as a Federal judge that he 
was confirmed by the Senate without anyone even asking for a recorded 
  With what was in essence an endorsement from three of the most 
influential political figures then serving in the Senate among my 
colleagues across the aisle, I find some of the opposition to Judge 
Gorsuch and the questioning of his qualifications somewhat baffling. I 
hope my colleagues in the Senate will put aside the political bickering 
and scorekeeping that have dominated Washington over the last several 
months and give Neil Gorsuch a fair vote, up or down, based on his 
qualifications and his suitability for service on the Supreme Court.
  Since joining the Tenth Circuit, Judge Gorsuch has been a busy man, 
doing exactly the kind of work that makes him qualified for this 
nomination. The Tenth Circuit exercises appellate jurisdiction of 
Federal cases originating in eight States that cover about 20 percent 
of America's landmass. That jurisdiction does include my home State of 
  As a member of the Tenth Circuit, Judge Gorsuch estimates that he sat 
on appellate panels considering approximately 1,800 criminal cases and 
1,200 civil cases. The list of citations of case decisions he has 
authored is a single-spaced, 21-page document. After hearing all of 
those cases and drafting all of those opinions, even Judge Gorsuch's 
detractors have criticized only a mere handful of the hundreds of 
opinions he has authored.
  I am confident that Neil Gorsuch is qualified to be a member of the 
Supreme Court because of his steadfast commitment to the rule of law. 
The many opinions he has written are known for being clear and easy to 
understand. But, most importantly, his opinions reflect his respect for 
following the law as it is written and for applying and adhering to 
judicial precedent. He is a judge who applies the law to the facts of 
the case and reaches the conclusion that the examination yields, 
regardless of his own personal beliefs.
  As he said, ``Personal politics or policy preferences have no useful 
role in judging; regular and healthy doses of self-skepticism and 
humility about one's own abilities and conclusions always do.''
  Judge Gorsuch is an adherent to, and defender of, America's 
Constitution and the separation of powers that document prescribes. As 
he said, ``Judges must allow the elected branches of government to 
flourish and citizens, through their elected representatives, to make 
laws appropriate to the facts and circumstances of the day.''
  Throughout this nomination process, during all of which Judge Gorsuch 
has been under a political microscope, we have seen that he is a man of 
admirable character with a temperament that makes him well suited to 
serve as a Supreme Court Justice.
  We know he has a resilient character and thick skin--qualities 
important to any Justice--because we have seen his demeanor and 
response to the criticism of his career and negative characterizations 
about some of his previous decisions--very few of them, I should add. 
We have seen his reaction in the face of accusations about his judicial 
independence. In the face of that--biting disparagement about the work 
he has spent his life trying to perfect--Judge Gorsuch has been 
respectful, remarkably patient, and resolutely committed to upholding 
the ethical canons and conduct demanded of him as a jurist.
  We have glimpsed Judge Gorsuch's character as he has spoken about the 
people he values and those he strives to emulate. His legal heroes are 
people like Justice White, who he said ``followed the law wherever it 
took him without fear or favor to anyone''; Justice Anthony Kennedy, 
who, Judge Gorsuch said, ``showed me that judges can disagree without 
being disagreeable''; and Justice Scalia, who reminds us ``that the 
judge's job is to follow the words that are in the law--not to replace 
them with words that aren't.''
  Neil Gorsuch has told us that he has also looked closer to home, to 
his family, to shape his character: his mother, who he said ``taught me 
that headlines are fleeting, but courage lasts''; his father, who he 
said showed him that kindness ``is the great virtue''; his paternal 
grandfather, who Judge Gorsuch said taught him that ``lawyers exist to 
help people with their problems, not the other way around.''
  Neil Gorsuch has demonstrated his commitment to the law, his 
scholarship, and his temperament befitting that of a judge. He is 
eminently qualified to be a member of the Supreme Court--not in my 
opinion--that is what the judges have said.
  I am not the only one who believes this. My office has received 
hundreds of calls and letters from my constituents in Wyoming urging 
the confirmation of Judge Gorsuch. He has a lot of support from folks 
in the Wyoming legal community, from both parties, whom I know and 
trust and whose opinions I value.
  Judge Gorsuch has earned a ``well qualified'' rating--the highest 
rating they award from the American Bar Association. To give him this 
rating, the ADA's Standing Committee on the Federal Judiciary conducted 
a peer review of Judge Gorsuch's integrity, professional competence, 
and judicial temperament.
  As children we all learn that you might be able to fool your parents 
or our teachers, but you can never fool your peers. You especially 
cannot fool ones with whom you have worked long hours like most judges 
and lawyers are known to do. You can't fool your peers. They are the 
ones who see you at your best and at your worst. That is why it is so 
remarkable that dozens of Neil Gorsuch's Harvard Law School 
classmates--people representing many different political and 
philosophical persuasions and who have known him for more than a 
quarter of a century--signed a letter supporting his nomination to the 
Supreme Court.
  Among our most important duties as Members of this body is to 
carefully vet all nominees who come before us. Never is that 
responsibility so stark and so substantial than when our Nation faces a 
vacancy on the Supreme Court.
  In November, millions of people went to the polls and rejected the 
kind of tired, partisan bickering when they voted for a change in 
Washington. Those same voters went to the polls knowing that there was 
a vacancy on the Supreme Court and that whoever became the next 
President would choose that nominee.
  For many weeks now, Judge Gorsuch has been before us as that nominee. 
He has undergone scrutiny under which most of us would wither. We have 
all had time to examine his record.
  I thank Chairman Grassley, Ranking Member Feinstein, and all of our 
Senate colleagues who serve on the Judiciary Committee for conducting 
such thorough and detailed nomination hearings that provided us ample 
opportunity to examine Judge Gorsuch's qualifications and temperament.
  I believe there is only one logical conclusion to reach after all of 
this examination; that is, that Judge Neil Gorsuch is supremely 
qualified for and capable of the solemn and mighty task of serving as 
the next Associate Justice of the Supreme Court.
  I urge my colleagues to join me in supporting this confirmation.
  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. GARDNER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page S2330]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GARDNER. Mr. President, it has been an eventful week already. We 
have seen a number of Members come to the Senate floor and debate the 
qualifications of Judge Neil Gorsuch, the President's nominee to the 
highest Court, the U.S. Supreme Court. Many have come to the floor 
talking about his high qualifications--the fact that he has the highest 
American Bar Association rating; the fact that he has the support of 
the 2008 cochair of the Democratic National Convention; the fact that 
Neal Katyal, a high-ranking former official in the Obama 
administration, supports the confirmation of Neal Gorsuch.
  We have had others come to the floor, of course, and express their 
opposition. We have had them come and express their opposition to an 
individual who has proved himself to be a mainstream judge, who has 
proved time and again that he has the respect of his colleagues on the 
Tenth Circuit Court--the bench of the Tenth Circuit Court, as well as 
circuit courts around the country, and that he has the respect and 
admiration of the Justices of the U.S. Supreme Court, where Judge 
Gorsuch clerked for Justice White, the last Coloradan to be on the 
Nation's High Court, and where he clerked for sitting Justice Anthony 
  Judge Gorsuch has been known and has become known as a feeder judge--
somebody who provides clerks to the Supreme Court because they 
understand the quality and caliber of Judge Gorsuch's work.
  We know Judge Gorsuch was a part of 2,700 opinions--decisions decided 
99 percent of the time with the majority of his court; we know that 97 
percent of that time, these decisions were unanimous. We know about his 
record as it relates to being reversed or overturned.
  We know that our colleagues who, for some reason, are opposing Judge 
Gorsuch continue to come to the floor and talk about the reasons they 
apparently can't support Judge Gorsuch: because he will not violate 
judicial ethics--the ethics judges are expected to keep; because he 
will not preview how he would rule under a certain fact circumstance. 
George Washington himself could come down from a mountaintop and would 
be rejected by the U.S. Senate to be a Supreme Court Justice.
  It is pretty incredible to see and hear the arguments that have taken 
place--some lasting all night--because some of these arguments are 
nothing more than sour grapes. Some of these arguments are nothing more 
than that two wrongs must make a right, in their minds. They criticize 
Republicans for invoking the Biden rule or the Schumer rule, and then 
they decide because of that, they are going to demand the seat be held 
open--not confirmed--because they believe it was taken from them. In 
their mind, if you do two things that are wrong, it must be a right. We 
have taught our children that is not true.
  We know, in this instance, that the American people decided who the 
Supreme Court Justice would be.
  In 2006, Judge Neil Gorsuch was nominated to serve on the Tenth 
Circuit Court. A dozen sitting Members of this Chamber didn't object to 
his nomination then. They didn't oppose him. They didn't come and 
register their ``no'' vote. In fact, nobody even showed up at his 
confirmation. Lindsey Graham was the only one. That is how 
objectionable he was then. So either of a couple of things has 
happened: Nobody did their work then to find out what kind of judge he 
was going to be or they have decided that the politics have changed.
  To me, the most egregious part of this debate is that the politics of 
the time are demanding that there be absolute obstruction for the first 
time in over 230 years of a Supreme Court Justice, trying to defeat a 
Supreme Court Justice with a partisan filibuster for the first time in 
two centuries, of a judge who agreed 99 percent of the time with the 
opinions of the court. Ninety-nine percent of the time, his opinions 
were made with a majority of the court; 97 percent of the time, they 
were made unanimously.
  This is an individual who has outstanding legal credentials: Harvard, 
Columbia, and, most importantly, time spent at the University of 
  He is a fourth-generation Coloradan. I think an old joke of the late 
Justice Scalia was that four of the five boroughs in New York have 
their own Supreme Court justice. Wouldn't it be nice if we had a 
Supreme Court Justice from west of the Mississippi River, another 
western voice on the Supreme Court, a judge who comes from a circuit 
court that represents 20 percent of the landmass? If you are a 
Westerner and you have a choice of putting a judge on the Supreme Court 
who is familiar with Tribal law issues, a judge who is familiar with 
water issues, a judge who is familiar with public land issues, that is 
a pretty good pick for the High Court, to represent a vast part of 
America that is underrepresented on the Nation's High Court.
  This institution can seem pretty puzzling at times because you 
consistently hear the outcry for bipartisan support: Let's work 
together. Let's have bipartisan support. Then the President nominates a 
judge who has strong bipartisan credentials from the people who know 
him the best. Look, most people in Washington, DC, most people in this 
Chamber have known Neil Gorsuch for just a couple of months since the 
time of his nomination. Most conversations people in this Chamber have 
had with Judge Gorsuch have consisted of an hour or two at a judicial 
confirmation hearing or perhaps when he visited the office prior to the 
hearing. That is the extent of their relationship and their knowledge 
and their understanding of Judge Gorsuch.
  But the people who know him best--the people out in Colorado, 
Republicans, Democrats--believe he is well qualified and should be 
confirmed, that he deserves an up-or-down vote. People like Democratic 
Governor Bill Ritter believe that Judge Gorsuch should have an up-or-
down vote and be confirmed.
  Some people find Judge Gorsuch to be so unreasonable or so unfit to 
serve on the High Court, they might find it hard to believe that the 
2008 cochair of the Democratic National Convention is supporting Judge 
Gorsuch's confirmation.
  Jim Lyons, an attorney and close friend of President Bill Clinton, 
supports the confirmation of Judge Gorsuch.
  They know his record. They have reviewed the cases that the 
opposition has stated that they find so egregious, and they still 
believe he is worthy of confirmation to the Court.
  The standard that has been set by those who oppose Judge Gorsuch is a 
standard that simply says: No Justice could be confirmed. Why? We know 
that because Judge Gorsuch's credentials, his academic background, his 
judicial history, his temperament, his qualifications, his ratings show 
that he is more than able to serve and deserving to serve on the 
Supreme Court.
  There is a certainly a difference in philosophy that has been 
presented here, a difference of philosophies that some people believe 
that a judge should just be a judge who follows the law or rules and 
makes a decision based on where the law takes them, but there are 
people who believe that a judge somehow has to be maybe a focus group 
of opinion or policy preferences, that a judge should be somebody who 
puts their thumb on the scale of justice to reach an outcome that is 
preferred by a political party. That is not what our Founders had in 
mind when they wrote the Constitution. That is not what justice is 
  Judge Gorsuch believes that you take an opinion, you take a decision 
where the law takes you, where the law leads you as a guardian of the 
  He understands the separation of powers, but apparently that is not 
good enough for some. They want an activist judge, but I hope that over 
the next several hours and the next few days that our colleagues will 
come realize that those who know him best believe that he is qualified, 
that he deserves an up-or-down vote, that a judge who votes 99 percent 
of the time in the majority agrees with them.
  I look forward to our conversations as we confirm Judge Gorsuch at 
the end of this week.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, there are few moments in the life of a 
nation when the people are presented with a single choice that directly 
affects what equality before the law will mean for the next generation. 
The opportunity to grant a lifetime appointment to the Supreme Court of 
the United States is

[[Page S2331]]

one of those moments. The next Supreme Court Justice will break the 4-
to-4 deadlock that has constrained the Court since the passing of 
Justice Scalia and this body's unprecedented refusal to act on Chief 
Judge Merrick Garland's nomination to fill that vacancy during the 
final year of President Obama's second term.
  Before discussing the pending nominee's merits, we must consider this 
nomination in its historical context. Chief Judge Garland, I believe, 
was one of the most qualified nominees for the Supreme Court in 
generations. After meeting with him and reviewing his record, I had no 
doubt that he easily would have earned bipartisan support and cleared 
the 60-vote threshold, as did each of President Obama's prior nominees 
to the Court. Yet my colleagues on the other side of the aisle refused 
even to meet with him. His treatment was disgraceful.
  Rejecting the treatment Chief Judge Garland received, I met with 
Judge Neil Gorsuch and shared a thoughtful conversation. I found him to 
be intelligent and articulate but at the same time, he was not 
particularly forthcoming about his judicial record, which contains many 
distressing examples of inconsistency and ideological rigidity. Nothing 
in our conversation or his testimony before the Judiciary Committee 
convinced me that he plans to moderate his positions to dispense equal 
justice under the law. I am deeply concerned that granting him a 
lifetime appointment to be a final authority on the meaning of the 
Constitution would further tip the scales of justice in favor of 
corporations and the powerful at the expense of working people and the 
powerless. Therefore, I cannot support Judge Gorsuch's nomination to 
the Supreme Court of the United States.
  This is a pivotal time for our Nation, when the people's trust in the 
judiciary is in decline, attributed by many to the streak of 5-to-4 
decisions of the Roberts Court that have consolidated corporate power. 
Given how radically the Court has changed many of our institutions over 
just the past decade, it is difficult to overstate the importance of 
understanding a nominee's judicial values and the human element the 
nominee will bring to the Court.
  I have applied the same, simple test to each Supreme Court nominee 
throughout my time in this body. It is not enough for a nominee to 
display intellectual gifts or to possess a textbook understanding of 
American history and jurisprudence. Judicial decision making at the 
Supreme Court is not an assembly line where mechanical application of 
the law will resolve every dispute.
  Rather, the nominee must demonstrate that she or he will use judicial 
discretion to give meaning to the text and spirit of the Constitution.
  Justice Harlan Fiske Stone laid the foundation for this model of 
judicial review in United States v. Carolene Products Co. He wrote that 
judges must enforce the specific text of the Constitution, but he went 
further than that, urging judges to apply stricter scrutiny to laws 
that impede the effective operation of government and channels of 
political participation. Judges should likewise demand the most 
compelling justifications for laws that single out powerless, discrete, 
and insular minorities. These principles deeply influenced future 
scholars and judges and laid the groundwork for modern constitutional 
law as we have understood it since the Warren Court.
  These are the decisions that struck down race and gender segregation, 
proclaimed the rule of ``one person, one vote,'' enshrined the right to 
remain silent and to counsel in police custody, and recognized 
the fundamental right of a person to marry for love, regardless of race 
or gender.

  This tradition stands in stark contrast to the new wave of hyper-
partisan legal activism we have seen manifested in our courts in recent 
years. This judicial activism attempts to disguise judges' personal 
political agenda by arguing that they are merely applying pure, 
indisputable, mechanical logic. This philosophy goes by varied names: 
textualism, originalism, strict constructionism, and so forth. But in 
the main, it is an ideological prism to disguise traditional judicial 
discretion, expand the law without limits to benefit politically 
powerful majority groups and corporations, and constrict the law for 
the minorities, workers, and the politically powerless.
  We know too well the devastating effects of this line of thinking as 
it has manifested itself in the Roberts Court. In the case of Shelby 
County, the Court disregarded congressional intent and ruled 5 to 4 
that the preclearance formula that helped millions of African Americans 
secure the vote in States with a history of discrimination was no 
longer necessary. This freed several States to enact severely 
restrictive election laws that clearly benefit one party and racial 
group at the expense of another, and courts are still working to 
resolve these imbalances.
  In Hobby Lobby, with an intellectual framework formed in part by 
Judge Gorsuch, the Court ruled 5 to 4 to give for-profit corporations 
religious rights to opt out of providing comprehensive health coverage 
for their employees. This has opened the door for corporate religious 
challenges to an untold number of duly enacted restraints on corporate 
excess, from child labor laws to basic protections against employment 
  In Citizens United, as we all too well know, the Court broke with 
decades of precedent, the facts of the case, and common sense to create 
a constitutional right for corporations to spend unlimited money on our 
elections. Indeed, our political system is still reeling from billions 
of dollars in anonymous political expenditures, and we are only now 
beginning to recognize the national security concerns that have 
resulted, with hostile powers, such as Russia, seeking to influence our 
democracy. In order to satisfy partisan, ideological ends, the Court 
has left us powerless to limit the purchase of political influence or 
even to know who is spending all this money on our politics.
  Judge Gorsuch's record strongly suggests that he would contribute to 
the Roberts Court's partisan, pro-corporate orientation. Indeed, the 
very same business groups that spent $7 million in dark money to block 
Chief Judge Garland's nomination to this seat also spent $10 million on 
ads and lobbying efforts to support Judge Gorsuch's nomination. It 
stands to reason that these groups believe that Judge Gorsuch shares 
their right-wing beliefs and will benefit their interests.
  The Judiciary is supposed to be above politics. Judges write opinions 
to satisfy due process and establish precedents that will guide future 
decisions. The opinion-writing process is not intended to be an arena 
for judges to pursue self-serving or ideological ends. That is why I am 
deeply concerned with Judge Gorsuch's clear willingness on the Tenth 
Circuit to go beyond precedent and the facts of a case before him to 
advance arguments designed to bend the law to his ideology.
  In Riddle v. Hickenlooper, Judge Gorsuch joined a panel decision that 
struck down uneven contribution limits in Colorado election laws. He 
then wrote separately to advocate that all campaign finance laws should 
be subject to greater constitutional questioning. This was both 
unnecessary to decide the case, and a clear signal by Judge Gorsuch 
that he would work to abolish what remains of laws limiting the flow of 
anonymous corporate money into our elections.
  Judge Gorsuch has reached furthest beyond precedent when doing so 
would deconstruct Federal agencies that constrain corporations, and 
protect workers, consumers, and the environment. This confirmation 
process has introduced many to a relatively obscure doctrine of 
administrative law called Chevron deference. The Chevron case stands 
for the essentially uncontested proposition that, when someone sues a 
Federal agency and a reasonable person could read the statute at issue 
more than one way, the court should defer to the agency's reasonable 
interpretation of the law it is charged with enforcing. This case has 
long been a target for attacks by corporations and their advocates 
because it levels the playing field in cases between massively well-
funded corporate lawyers who want no regulations, and agencies charged 
with bringing big business into compliance with the law. Judge Gorsuch 
has written strongly against this principle, but even Justice Scalia 
acknowledged the sound reasoning behind the Chevron case.
  Judge Gorsuch would seemingly return us to the old days when powerful

[[Page S2332]]

companies could pollute the environment, scam their customers, and 
discriminate against their employees as long as they could pay enough 
lawyers and get the right judge when the Federal agency sues. In the 
case of Gutierrez-Brizuela v. Lynch, he took the very unusual step of 
writing a concurrence to his own majority opinion in order to attack 
Federal agencies and make the case that decades of Chevron precedent 
should be overturned. It is highly unusual, after you have written the 
majority opinion at the circuit level deciding the case, that you would 
then step aside and write a separate epistle advancing your ideas.
  He wrote in language that is familiar to those of us in the political 
branches of government, but out of the ordinary for a Federal judge. He 
compared Federal agencies to a ``tyrannical king'' and a ``behemoth'' 
and a ``colossus'' and laid out his constitutional theory for 
challenging Chevron in the Supreme Court. None of this analysis was 
necessary to the case before Judge Gorsuch. Yet in writing this and 
similar opinions, Judge Gorsuch signaled his willingness to break from 
precedent and contort the law to fit his ideological vision of how the 
system should work to benefit the powerful and his preferred interests.
  My colleagues on the Judiciary Committee spent a great deal of time 
and effort questioning Judge Gorsuch and trying to elicit responses 
about his basic judicial philosophy. Unfortunately, his answers were 
largely nonresponsive and failed to address many of our concerns about 
his record.
  Judge Gorsuch's record and writings shows he believes judges should 
always interpret the Constitution and other laws from the perspective 
of those who first drafted the law, regardless of how the world looks 
  The Founders and Framers, however, did not leave us a blueprint to 
answer every new question of law. Nor did the delegates to the 
Constitutional Convention demand that all future judges be 
``originalists.'' The laws and values of 1789 would shock and 
alienate--as they should--many Americans today, particularly women and 
racial and other minority groups. Worse yet, a judge attempting to 
resolve a case as if it were the 18th, 19th, or even 20th centuries may 
wittingly or unwittingly use that construct to inject into the case the 
judge's own view of how the government ought to work.
  The Hobby Lobby case is a key example of this ideological 
inconsistency at work to the detriment of less powerful Americans. This 
case concerned, as I noted earlier, whether a for-profit corporation 
could refuse to comply with the Affordable Care Act's mandate that 
employers provide health coverage, including contraceptives, to over 
23,000 employees on the ground that doing so would conflict with the 
corporation's purported religious rights under the Religious Freedom 
Restoration Act, or RFRA.
  The text of RFRA provides that the ``government shall not 
substantially burden a person's exercise of religion even if the burden 
results from a rule of general applicability.'' The legislative history 
of RFRA is both recent and clear. In the case of Employment Division v. 
Smith, decided in 1990, the Supreme Court rejected two peyote users' 
claim of a religious right to consume the drug on grounds that the 
Constitution permits some burdens on religion if the aim of the law is 
secular and generally applicable. When Congress debated RFRA in 1993, 
the House and Senate reports showed explicitly that Congress's aim was 
``only to overturn the Supreme Court's decision in Smith'' and to 
require courts considering RFRA cases to ``look to free exercise cases 
decided prior to Smith for guidance.''
  No Supreme Court case prior to this time had ever granted 
corporations religious rights and nothing in RFRA's legislative history 
suggested that Congress's intent was to do so. Notwithstanding these 
facts, Judge Gorsuch joined his colleagues to hold that a for-profit 
corporation's religious beliefs may overcome its employees own 
consciences and rights to comprehensive health coverage. He relied on 
an 1871 law called the Dictionary Act, which provided that in certain 
circumstances, Congress's use of the term ``person'' can also mean 
businesses, ``unless the context indicates otherwise.'' This reference 
to context means that Judge Gorsuch had discretion to use history and 
common sense to reach the conclusion that corporations don't have 
religious views, but people do, and RFRA was enacted to protect real 
people's rights. But instead, he took this opportunity to endow 
corporate entities with religious rights that could help them escape 
the law in untold circumstances.
  Let's explore for a moment Judge Gorsuch's belief that judges should 
always give meaning to the original intent of a law's draftsmen. In 
this case, what is a corporation and how does it operate? In 1787, 
there were roughly six non-bank corporations in America, and their 
powers were severely restricted in the wake of colonists' experiences 
with the abusive practices of the Crown and royal English corporations. 
Around the time that Congress passed the Dictionary Act, corporations 
were harshly regulated by law to achieve specific commercial ends and 
nothing more. There were legal limits on the capital they could raise. 
Many could not operate outside their state of incorporation. They were 
often prohibited from owning property that was not necessary for 
specific commercial activities. Most were even forbidden to engage in 
any activity that was not explicitly enumerated in their corporate 
charters, and a real person could sue to render a corporation's action 
a legal nullity if it were not expressly in furtherance of the 
corporation's business mission. The idea that a corporation in this 
context could exercise fundamental religious rights, much less that its 
religion should excuse it from complying with duly enacted laws that 
protect real people, would have been outrageous to the Framers and the 
Congress that passed the Dictionary Act.
  Judge Gorsuch knew or should have known the ahistorical nature of his 
decisions. We have yet to see the full scope and consequences of his 
vision of a near-unlimited right of corporations to opt out of our 
laws, but we can imagine the harmful choices and difficult litigation 
on this point that may lie ahead. I, for one, have deep concerns about 
any judicial philosophy that bends so far in the direction of corporate 
interests and completely ignores tens of thousands of real people in 
the process.
  For as much as Judge Gorsuch's record shows that he is willing to 
entertain new or arcane legal theories to reach a better outcome for 
corporations and the powerful, it is also clear that he will go to no 
such length to vindicate the rights of minorities, the disabled or 
  One example highlighted during Judge Gorsuch's confirmation hearing 
is his record on lawsuits under the Individuals with Disabilities 
Education Act, or IDEA. The purpose of IDEA is to ensure that students 
with disabilities receive a public education that is tailored to their 
special individual needs. In the 2008 case popularly referred to as the 
Luke P. case, however, Judge Gorsuch ruled against the parents of a 
severely autistic child who sought reimbursement for the cost of a 
specialized school because their son was not making appropriate 
progress in the public school. In denying the parents relief, Gorsuch 
reinterpreted IDEA to require that public schools need only provide de 
minimis, or nonzero educational progress to children with disabilities. 
Not only did Judge Gorsuch go beyond the facts of the case to close any 
path to relief for the family, but in this and similar cases, he 
attempted to set a legal precedent for future cases that effectively 
eviscerated the meaning and protections of IDEA.
  Fortunately, the Supreme Court intervened. In a rare unanimous 
decision released, ironically, on the second day of Judge Gorsuch's 
confirmation hearing, the Court rejected Judge Gorsuch's narrow reading 
of the law. In fact, the Chief Justice did not mince words when it came 
to Judge Gorsuch's lower bar for schools. He said Judge Gorsuch's model 
would hardly provide ``an education at all'' for children with 
disabilities, and that ``receiving instruction that aims so low would 
be tantamount to `sitting idly . . . awaiting the time when they were 
old enough to drop out.' '' This stark, unanimous rebuke of Judge 
Gorsuch's view of the law in the middle of his confirmation hearing was 
yet another reminder that this nominee is outside of the judicial 

[[Page S2333]]

  But Judge Gorsuch has not just restricted his reading of the law in 
the educational context. In TransAm Trucking, Inc. v. Administrative 
Review Board, a majority of the Tenth Circuit held that a truck driver 
was wrongfully fired when he drove away from his trailer to find help 
after being stranded for hours in subzero temperatures in a vehicle 
with no heat and a rig with failed brakes. Judge Gorsuch disagreed so 
sharply that he penned a dissent. Under his strict textualist view of 
the law, the driver was protected from firing for ``refusing'' to 
operate in dangerous conditions, but the word ``refusing'' could not be 
interpreted to include driving away to get potentially lifesaving help, 
rather than freezing to death. Again and again, Judge Gorsuch's record 
shows he is capable, but either unwilling or unable to give the same 
benefit of the doubt to average working people as he does to their 
employers, their landlords and the most powerful among us.
  Mr. President, Constitutional law is not concerned with easy cases or 
simple answers. We have constitutional guarantees to inalienable rights 
because we know that majority rule sometimes gets it wrong, 
particularly when it comes to the rights of the minority. That is what 
makes the qualifications for a seat on the Supreme Court fundamentally 
different from any other Federal or State court in the Nation. A 
judge's job is to apply precedent, be faithful to the law, and exercise 
measures of empathy and common sense to dispense justice. A Supreme 
Court Justice's job is to decide when the law is wrong and must be 
changed in order to fulfill the promise of the Constitution. The 
Supreme Court cannot perform this function unless the individual 
Justices bring to it the values and willingness to be the last resort 
for the powerless when the system fails. They must be able to make 
unpopular decisions and side against political and cultural majorities. 
They must be able to reject precedent when the established way of doing 
things no longer safeguards the fundamental protections to which every 
American is entitled. They must do this for the least and most derided 
among us, because if they do not, there is nowhere else to turn. They 
have the final word on the meaning of the law.
  I take Judge Gorsuch at his word that he respects the law and 
approaches this nomination with seriousness and a sense of 
responsibility. A thoughtful reading of his work as an advocate and a 
judge reveals that he has a consistent predisposition to favor 
corporations and the powerful over human beings and the powerless. To 
be sure, there is nothing inherently wrong when a corporation, or a 
landlord, or an employer or a President of the United States wins a 
case in a court of law. The system often works as it should even when 
it hands new victories to those who seldom lose at anything. But at 
this moment in the life of our Nation, it is vital that the next 
Justice of the Supreme Court be willing and able to elevate the rights 
of the people above the prevailing political view of the wealthiest and 
most powerful when the two are in conflict. I cannot conclude that 
Judge Gorsuch meets this standard. Therefore, I will oppose his 
nomination and I would urge my colleagues to do the same.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Gardner). The Senator from New Mexico.
  Mr. UDALL. Thank you, Mr. President.
  We have many important responsibilities as U.S. Senators. We often 
have to make very difficult decisions. Deciding to vote against cloture 
and confirmation for Judge Gorsuch has been a tough decision.
  Since coming to the Senate, I have been a strong advocate for 
reforming the rules, to curb abuses to ensure the body can function, 
and to make sure that the President's nominees are treated fairly. I 
believe our constitutional duty to provide advice and consent is one of 
the most important of all of our responsibilities as Senators, 
especially for nominees to our Nation's highest Court, and I believe 
that withholding consent should be rare--rare but not unheard of. 
Sometimes circumstances will be so extraordinary that filibustering a 
Supreme Court nominee is necessary. The gang of 14 knew this. That was 
the group of 14 Senators who forged a compromise in 2005. Three of them 
are still in the Senate. Their agreement allowed some controversial 
judicial nominees to be confirmed to appellate courts, but it also 
allowed the Senate to avoid triggering the nuclear option, and it 
addressed how they would weigh future nominations.
  The gang of 14 agreed to the following: ``Nominees should be 
filibustered only under extraordinary circumstances and each signatory 
must use his or her own discretion and judgment in determining whether 
such circumstances exist.''
  I think that is a good standard, to only filibuster a nominee under 
extraordinary circumstances. Unfortunately, in my evaluation of Judge 
Gorsuch's nomination to the Supreme Court, I can't think of more 
extraordinary circumstances.
  First, this wasn't President Trump's seat to fill. Justice Scalia 
died on February 13, 2016. President Obama still had nearly 1 year at 
that point to serve in his term. So President Obama fulfilled his 
constitutional duty. He nominated one of the most qualified nominees in 
the history of the Court, Judge Merrick Garland. Shortly before Judge 
Garland was nominated, Senator Hatch, one of our most respected 
Republican colleagues on the Judiciary Committee, said Judge Garland 
would be a great pick. Senator Hatch went on to say that President 
Obama ``probably won't do that because this appointment is about the 
election.'' But President Obama did do it. Judge Garland is not just a 
fine jurist, he is an exceptional human being. Judge Garland's lifelong 
commitment to public service is well known. He deserved far better 
treatment by the Senate majority.

  Judge Garland was denied a hearing. Many of my Republican colleagues 
wouldn't even give him the courtesy of a meeting, and he never got a 
vote, which was a disgrace. It is an injustice that needs to be 
remedied before I could ever consider voting for Judge Gorsuch.
  President Trump could fix this. He could make a commitment to 
nominate Judge Garland to the next vacant seat on the Court. It would 
be the right thing to do. I have been very open that I believe the 
Senate has become dysfunctional, but what the majority did last year 
was unprecedented. Things went from bad to rock bottom.
  Being senatorial used to mean something. The Republican majority has 
shattered that tradition for purely partisan reasons. In fact, the 
majority leader has publicly stated: ``One of my proudest moments was 
when I told Obama `you will not fill this Supreme Court vacancy.''' 
That is a violation of the U.S. Constitution's requirement that the 
Senate provide advice and consent.
  Now, in 2017, Senator McConnell has guaranteed Judge Gorsuch's 
confirmation, even before he had his hearing. For him the outcome has 
been a foregone conclusion. So we see there is no advice and consent 
now, either, just the exercise of power to block a nominee from another 
party. But President Trump could help heal that deeply partisan wound 
inflicted by his party. There is still time for both sides to come 
together and work out an agreement with bipartisanship and fairness 
first, and put aside the bitter partisan fighting that has divided the 
Congress and our Nation.
  There is also a pragmatic reason for President Trump to appoint Judge 
Garland to the next seat. President Trump needs to ask himself if he 
wants to be subject to the McConnell precedent. Is he willing to accept 
that he only gets to appoint Justices for 3 years? If a Supreme Court 
vacancy occurs in 2020, does President Trump understand that it is not 
his vacancy to fill? That is the absurd standard that Leader McConnell 
has established. If the Republican majority is dead-set on changing the 
rules to jam this nominee through after all that has happened, then we 
need to talk about this.
  Perhaps the best thing to do in order to ensure the President 
understands the gravity of the Republicans' obstruction of his 
predecessor is to go ahead and put the McConnell rule in place for 
President Trump. Let's establish in our rule that President Trump only 
gets 3 years to appoint Justices. We can do this with a simple standing 
order. The majority leader believed President Obama should only have 3

[[Page S2334]]

years to appoint Justices, certainly the same standard must apply to 
President Trump. If the Republican majority thought that their policy 
in 2016 was good for President Obama, it should be good for President 
Trump. What is fair is fair.
  I have a standing order drafted that would do that, and I hope an 
agreement can be reached to rectify the injustice that was done to 
Judge Garland, and I hope that Republicans will decide against using 
the nuclear option. But if that doesn't happen, I will call on the 
Senate to adopt this standing order so that President Trump was bound 
by the same restrictions as President Obama.
  If we are going to change the rules tomorrow, then let's get the 
Republican majority on record. Are they prepared to hold President 
Trump to the same unjust standard as President Obama? We can find out.
  Mr. President, I ask unanimous consent to have printed in the Record 
the text of my standing order at the end of my remarks.
  Unfortunately, Judge Garland's unacceptable treatment isn't the only 
concern that guides my decision to vote against Judge Gorsuch. Like 
many things in the Trump administration, there is no shortage of 
extraordinary circumstances. Perhaps the most serious is the cloud of 
suspicion over his Presidency.
  U.S. intelligence agencies have concluded that the Russian government 
interfered in the U.S. Presidential election and that it interfered to 
help Candidate Trump. There are unexplained ties between the President, 
his campaign staff, his associates, and Russian officials. People close 
to the President had meetings and telephone calls with Russian 
officials during the campaign and transition, and, most critically, the 
FBI and the Department of Justice are investigating whether the 
President and his associates coordinated or conspired with the Russian 
Government to interfere with the Presidential election. It is an 
investigation that began last July and is likely to continue for 
  If the President or his close advisers worked with Russia to help him 
win the U.S. election, do we really want to let him appoint a Justice 
to the Supreme Court, someone who could be on the Court for 30 years or 
more? There is no reason to rush this nomination.
  Remember, Republicans had no problem letting Judge Garland's 
appointment languish for 293 days, and President Obama wasn't under 
investigation. Judge Gorsuch was nominated just 64 days ago. If 
Republicans had treated Judge Garland's nomination with the same 
expediency, he would have been confirmed last May when President Obama 
still had 8 months in office. The unacceptable treatment of Judge 
Garland and the investigation into Russia's influence in the election 
are reasons enough to vote against Judge Gorsuch.
  But there is one more critical issue: the nominee himself. I have met 
with Judge Gorsuch and followed the hearing in the Senate Judiciary 
Committee. I carefully studied his record, and based on all of this 
information, I can't support his confirmation. The Supreme Court 
changes people's lives. Its decisions stand for generations. It is 
essential that Justices understand not only how these issues impact our 
democracy but how they affect people's lives, and that they consider 
them free of ideology.
  Our meeting and the Senate hearings were Judge Gorsuch's opportunity 
to convince me that he will be an independent mind on the Court. He 
failed to answer questions that were critical for me--his position on 
the rights of working mothers, whether women can choose their own 
health care decisions, LGBTQ rights, and dark money in our elections, 
just to name a few. But what I found most troubling is that he failed 
to convince me that he would be an independent voice on the Court.
  In just the last couple of months, the President has taken 
constitutionally questionable actions affecting Muslim immigrants, 
freedom of speech, and religion. The FBI is investigating his campaign, 
and he faces scrutiny about whether his company is benefitting from his 
office. All of these issues could well come in front of and before the 
Supreme Court. It is more important now than ever before that we have a 
neutral, clearminded Justice sitting on the bench. After carefully 
considering all these issues, I cannot support Judge Gorsuch's 
confirmation. It is not an easy decision, but I believe it is the right 
one for our country.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


 Title: Prohibiting consideration of a nomination to the Supreme Court 
of the United States during the final year of the term of office of the 



       During the period beginning on January 20, 2020 and ending 
     at noon on January 20, 2021, it shall not be in order in the 
     Senate to consider the nomination of an individual to the 
     position of Chief Justice of the United States or a position 
     as a justice of the Supreme Court of the United States.

  Mr. UDALL. With that I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. PETERS. Mr. President, the U.S. Supreme Court is a pillar of our 
Nation's democracy, and I take very seriously the Senate's 
responsibility to advise and consent on nominees to serve in this 
revered institution. Our constitutional democracy is a system of checks 
and balances with three coequal branches of government. Each branch is 
intended to serve as a check on the other two.
  If congressional Republicans are unwilling or unable to check 
President Trump, this leaves our courts as the last line of defense 
against an administration that is committed to expanding the already 
vast power that is provided to the Executive.
  We have seen this play out over the past 2 months as President Trump 
has twice rolled out unconstitutional travel bans only to have Federal 
courts stop their implementation. The President's reaction was telling. 
He lashed out at the ``so-called `judge' '' and urged his Twitter 
followers to blame not only the judge who stayed a travel ban but the 
entire Federal court system should an attack occur.
  Judge Gorsuch wants us all to know that he found these attacks on the 
judiciary ``disheartening.'' He told me as much when we met. He made a 
point to use the same language when in meetings with a number of my 
colleagues. Personally, I would say that these attacks on the judicial 
branch are more than disheartening--they are appalling, and I would say 
they are dangerous.
  Judge Gorsuch is, by all accounts--and in my opinion--a good man, but 
as I have reviewed Judge Gorsuch's record and previous rulings, I have 
to say that I find them disheartening.
  I find it disheartening that he has regularly sided against everyday 
Americans' rights, including women's reproductive rights, workers' 
rights, and civil rights. I find it disheartening that, instead of 
allowing women access to basic healthcare, Judge Gorsuch authored a 
concurring decision that argued that corporations have religious 
  Yes, we all know that corporate law creates a legal fiction of 
personhood, but let's be real. Corporations are not people. They are 
not humans, and I have never sat next to a corporation at church. 
Corporations do not have religious beliefs. To say otherwise defies 
common sense.
  Judge Gorsuch's ruling and the subsequent Supreme Court decision in 
Burwell v. Hobby Lobby Stores, Inc., is a dangerous step backward for 
women's health. This ruling puts corporations before people and could 
leave women in Michigan and across the country without access to 
essential healthcare services. This decision is a step backward for 
women. It is, instead, a step forward for the growing power that 
corporations have in this country. Courts not only serve as a check 
against a powerful executive branch, but they are supposed to put 
individuals on a level playing field against large, powerful 
  I am disheartened that Judge Gorsuch was the only Tenth Circuit judge 
to rule against a Detroit truckdriver who was unfairly fired for not 
staying in his disabled trailer after waiting for hours in dangerously 
cold weather. In a 2-to-1 decision in TransAm Trucking v. DOL, Judge 
Gorsuch ruled that TransAm Trucking

[[Page S2335]]

was in the right when it fired Alphonse Maddin for walking away from 
his disabled semi instead of risking death by hypothermia.
  I am also disheartened by Judge Gorsuch's ruling on accommodations 
for disabled students. In Thompson R2-J School District v. Luke P., 
Judge Gorsuch ruled that schools only need to provide meager 
accommodations to satisfy the Individuals with Disabilities Education 
  During Judge Gorsuch's confirmation hearing, the Supreme Court handed 
down a decision that ruled unanimously against his position. Even the 
most conservative judges on the Court overruled him.
  Chief Justice John Roberts powerfully wrote:

       When all is said and done, a student offered an educational 
     program providing ``merely more than de minimis'' progress 
     from year to year can hardly be said to have been offered an 
     education at all.

  Whether it is ruling against children who want an equal opportunity 
to get a quality education or women who want access to healthcare or a 
truckdriver who simply wants to make it home safely at the end of his 
shift, I am disheartened that Judge Gorsuch often fails to take into 
account the human face behind each case.
  The U.S. Supreme Court is often the last line of defense for everyday 
Americans, and Judge Gorsuch's previous rulings indicate he believes 
that corporations have greater rights than individuals. As millions 
have been spent by the corporate elite in support of his nomination to 
the Supreme Court, the judge has failed to acknowledge how deeply the 
Citizens United decision has corrupted our government by opening the 
floodgates for special interest money to pour into our elections.
  My colleagues on the other side of the aisle will tell you that Judge 
Gorsuch is a mainstream judge. I would argue that most Michiganders do 
not consider the Koch brothers or the Heritage Foundation to be 
mainstream. Mainstream Michiganders would tell you that our winters can 
be bitter cold and that you cannot sit in a stalled vehicle for hours 
without risking life and limb. They would tell you that corporations 
are not people and, therefore, do not have religious beliefs. They 
would tell you that all children deserve a chance at a quality 
  A lot of my colleagues will be discussing Senate procedures and rules 
and precedent in the coming days, and I will simply say this: 
Michiganders and all Americans deserve a true mainstream, consensus 
Supreme Court Justice who can earn broad bipartisan support and not 
merely squeak by.
  Now, more than ever, we need the Supreme Court to be our Nation's 
North Star, not a weathervane that responds to rapidly shifting 
political winds.
  Serving on the Supreme Court requires more than education, more than 
experience, and more than a pleasant demeanor. A Supreme Court Justice 
must have sound judicial philosophy and the ability to interpret the 
law as intended by the Constitution and by the Congress.
  I am extremely concerned that Judge Gorsuch's judicial approach is 
out of step with mainstream Michigan values, and I urge my colleagues 
to join me in opposing his nomination.
  Mr. NELSON. Mr. President, will the Senator yield?
  Mr. PETERS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON. Mr. President, I thank the Senator for yielding.
  Mr. President, deciding whether to confirm a President's nominee for 
the highest Court in the land is a responsibility I take very 
seriously. Over the past few weeks, I have met with Judge Gorsuch, 
listened to the Judiciary Committee's hearings, and reviewed his record 
with an open mind. I have real concerns with his thinking on protecting 
the right to vote and allowing unlimited money in political campaigns. 
In addition, I am concerned that the judge will not protect the rights 
of the everyday average citizen when they come up against large 
corporate interests. Judge Gorsuch has consistently sided with 
corporations over employees, as in the case of a freezing truck driver 
who, contrary to common sense, Judge Gorsuch would have allowed to be 
fired for abandoning his disabled rig during extreme weather 
  I will vote no on the motion to invoke cloture and, if that succeeds, 
I will vote no on his confirmation.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. VAN HOLLEN. Mr. President, I rise today to speak about one of the 
most important responsibilities we have here in the U.S. Senate: 
considering the President's nominee to the Supreme Court.
  It is a vote with consequences that will far outlast this 
Presidential administration. It is a vote with implications that will 
outlast all of our time here in the Senate. It will certainly be one of 
the most consequential decisions each one of us makes.
  That is because any one of the nine individuals named to the Supreme 
Court with a lifetime appointment can change the course of our Nation. 
In just the past few years, we have seen that. We have witnessed a 
series of 5-to-4 decisions that changed the trajectory of our society--
decisions that gutted section 4 of the Voting Rights Act and resulted 
in numerous States enacting discriminatory laws designed to limit 
access to the ballot box, especially for African-American and minority 
  The 5-to-4 Citizens United decision overturned the law of the land 
and Supreme Court precedent in order to empower corporations to spend 
unlimited sums of money in support of candidates for public office, 
corroding the fabric of our democracy. There were decisions that limit 
a woman's access to safe and affordable birth control and reaffirm the 
legal fiction that for-profit corporations should have the same rights 
as real people. There was a decision that upheld the Affordable Care 
Act, and a decision that--with a single vote--gave every American the 
right to marry the person they love.
  The decision of a single Supreme Court Justice can indeed change the 
trajectory of our judiciary and of our society for generations.
  Now my Republican colleagues rightly note that this weighty decision 
begins with the President. They have routinely said it is the 
President's right to choose his judicial nominees, and that is true. I 
have one question for them: Where were they last year when President 
Obama nominated Merrick Garland to the Supreme Court of the United 
States? They were AWOL.
  Shortly after Justice Scalia passed away and before President Obama 
even named his nominee, the Senate Republican leader announced that he 
would leave the seat open--and he did--for an unprecedented 293 days. 
For 293 days, one of the most qualified and mainstream nominees in our 
history languished without even a hearing. Many Senators refused even 
to meet with him. For 293 days, Democrats in this Chamber and people 
from all over the country called upon this Senate to do its job and 
consider the nomination of Judge Merrick Garland. The response? 
Nothing--a total abdication of this Senate's constitutional 
responsibility of advice and consent.
  But, unfortunately, this Chamber's failure to live up to its 
responsibility to consider the Garland nomination is just one piece of 
a larger assault on the independence of our judiciary.
  President Trump has made it clear that he sees our Nation's judges 
not as a separate and coequal branch, but an unwelcome challenge to his 
power. He has called the courts broken and political. When he faced 
trial for scamming thousands of students at Trump University, he 
charged that the Federal judge overseeing that case could not be 
impartial. Why? Because, he said, he was Hispanic--a charge that was, 
in the words of the Speaker of the House Paul Ryan, the ``textbook 
definition'' of racism.
  When the Trump administration first tried to impose its Muslim ban, 
only to be blocked by a Federal court, did President Trump display 
respect for the rule of law? No. He fired his acting Attorney General, 
Sally Yates and accused her of having ``betrayed'' the Department of 
Justice. He went on to say that if any future harm occurs, it is the 
fault of the courts, and called them obstructionists for not bending to 
his will. They are not supposed to bend to the will of the Executive.
  President Trump's disdain for the courts makes it all the more 
important that the open seat on the Supreme Court be filled by somebody 
who is

[[Page S2336]]

seen as an impartial administrator of justice--someone who does not 
have a set political ideology.
  Unfortunately, Neil Gorsuch does not meet that important test.
  His record and his testimony shows that he applies a very cramped 
reading of the law and consistently--time and again--sides with 
powerful corporate interests against the rights of workers, consumers, 
and individuals. When he had an opportunity during the hearings to 
explain that bias, he chose instead to evade the questions and answer 
with platitudes, not substance. While he is undoubtedly a skilled 
lawyer, his record reveals that he is outside of the judicial 
mainstream. His decisions have closed the doors of justice to working 
people, to people with disabilities, and to individuals seeking to 
protect their rights.
  In one opinion, Judge Gorsuch was the only judge who thought that 
TransAm Trucking company was right when they fired a driver whose only 
offense was finding safety when the heat in his truck broke down in 
subzero temperatures, and he began to show signs of hypothermia. The 
driver said he could not feel his lower body, his fingers were becoming 
numb, and he experienced slurred speech while waiting for hours for 
help from his company. Judge Gorsuch was the only judge who thought 
that Federal regulations protected the trucking company and not the 
truckdriver trying to avoid freezing to death. It makes me doubt that 
Judge Gorsuch considers the real-world consequences of this ruling.
  Judge Gorsuch also sided against working people and defended powerful 
corporations. In his opinion in Hobby Lobby, he came down on the side 
of corporate power against the rights of workers. He argued that not 
only do corporations have rights to religious liberty, but those rights 
can supersede--can trump--the rights of ordinary working Americans. He 
was the architect of an opinion that severely limited a woman's access 
to basic reproductive healthcare.
  In yet another ruling, Judge Gorsuch prevented an autistic child from 
getting a proper public school education. His opinion on the 
Individuals with Disabilities Education Act severely limited the 
options for parents of children with disabilities and the quality of 
public school education they could receive. His reasoning in that case 
was overturned by the Supreme Court literally as he was testifying in 
the Senate Judiciary Committee.
  Not merely was his decision overturned, it was overturned 
unanimously--eight to nothing. According to the justices that Judge 
Gorsuch hopes to serve with, his standard would have cut children with 
disabilities out of high-quality education.
  As the Supreme Court said in that case: ``For children with 
disabilities, receiving instruction that aims so low would be 
tantamount to sitting idly, awaiting the time when they were old enough 
to drop out.''
  That is what the Court said. Fortunately for children with 
disabilities and their families, and for the sake of justice, they did 
not adopt the Gorsuch reasoning.

  Finally, Judge Gorsuch has spent his career arguing against the so-
called Chevron standard. In essence, this means that when it comes to 
Federal rules designed to protect the public health and safety, he 
believes that the opinions of judges like himself should outweigh the 
opinions of experts in these subjects in our civil service. This view 
was rejected by none other than Judge Scalia. It is much more in line 
with the thinking of Steve Bannon, a man whose stated goal is to 
deconstruct the Federal rules that protect the health and safety of the 
American people. Again, Judge Gorsuch is not in the mainstream.
  And let's make no mistake, he was never intended to be a mainstream 
nominee. Candidate Trump established several litmus tests. He said he 
wanted a nominee who was opposed to a woman's right to reproductive 
choice and someone who would have the support of the NRA. Donald Trump 
then subcontracted out the nomination process to rightwing conservative 
groups like the Heritage Foundation and the Federalist Society. He 
asked them to compile a list of nominees who they liked. Neil Gorsuch 
was on that list.
  So it should be no surprise that an analysis that appeared in the New 
York Times concluded that Neil Gorsuch would be the second most 
conservative member of the current Supreme Court, and an analysis in 
the Washington Post concluded he would be the most rightwing member of 
the Court.
  And once President Trump selected Neil Gorsuch, the rightwing money 
machine went into action. Since that moment, money has flooded our 
airwaves, with more than $10 million spent in support of this 
nomination. Never before has our country witnessed a multimillion 
dollar campaign for the Supreme Court.
  When pressed, Judge Gorsuch said he had no idea who or why anybody 
would spend that much money to make sure he sits on the highest Court. 
I think we know why from looking at his record. They want someone who 
consistently rules in favor of large corporate special interests 
against the rest of us.
  There is a better way. Typically, the White House will consult with 
Members of both parties, Republicans and Democrats, before settling on 
a nominee. This time that courtesy was not extended to Democrats. If it 
had been, we could be talking today about a bipartisan nominee--someone 
who would uphold equal justice under the law for every American. The 
rules do not need to change; the nominee needs to be changed.
  Our Nation's independent judiciary is under attack. Our President 
demonizes judges whenever he feels challenged, and now special interest 
groups have begun funding millions of dollars into a campaign, reducing 
our solemn constitutional duty to a set of slick campaign ads. That is 
why we need a new nominee--one who has the support of 60 members of 
this Chamber.
  I will oppose this nomination and insist that this nominee be held to 
the 60-vote standard to show he can get a consensus of this body.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Mr. President, one of the most important 
constitutional duties we as Senators have is to decide whether a 
Supreme Court nominee is the right person for the job.
  When we make a decision, we should always consider what is best for 
the people of this country. Three branches of government were created 
to serve the people, so no matter what we do--whether it is here in the 
Senate, whether it is in the White House, or whether it is across the 
street in the Supreme Court--the American people should always come 
first. And our rights--our individual rights should never be 
subordinate to the rights of corporations.
  The Supreme Court is supposed to be the ultimate protector of our 
individual rights--the ultimate arbiter of justice for our citizens.
  Unfortunately, Judge Gorsuch, over the course of his career, has made 
it clear that he thinks the rights of corporations are more important 
than the rights of individuals.
  For someone who describes himself as a strict constructionist--as a 
so-called textualist--his judicial ruling on corporate rights in the 
Hobby Lobby case is one of the biggest distortions of our sacred 
principle of individual rights that I have ever seen.
  And now President Trump has nominated Judge Gorsuch to the Supreme 
Court, where he could end up ruling on many more cases related to 
individual rights.
  In my State, just like in many of yours, there are thousands and 
thousands of families who will be directly affected by the decisions 
the Supreme Court makes in the next few years: voting rights, workers' 
rights, reproductive rights.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mrs. GILLIBRAND. I ask unanimous consent for 1 additional minute.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mrs. GILLIBRAND. In my State, just like many others, there are 
thousands of families who will be directly affected by the decision the 
Supreme Court makes in the next few years--even our First Amendment 
speech rights, which President Trump has threatened by saying he wants 
``to open up our libel laws'' against the press.
  If any of these cases make it to the Supreme Court, they will all be 
decided in part by the next Supreme Court Justice, and Judge Gorsuch's 
record does

[[Page S2337]]

not give me confidence that he will be a Justice whose rulings would 
bolster those individual rights.
  On the issue of changing the rules to the filibuster, I strongly 
oppose changing these Senate rules for President Trump, to give him 
special help with Judge Gorsuch.
  So I urge my colleagues to think about the potentially far-reaching 
and damaging consequences to our democracy if they vote to eliminate 
the filibuster for Supreme Court nominees. Fundamentally, changing the 
rules for President Trump is a historic mistake.
  We must stand up for individuals' rights over corporations, and I 
urge my colleagues to vote against this nominee.
  The PRESIDING OFFICER (Mr. Lee). The Senator from Alaska.
  Mr. SULLIVAN. Mr. President, I, too, wish to spend some time talking 
about the confirmation and upcoming vote on Judge Neil Gorsuch. As many 
of my colleagues have noted, this is certainly one of the most 
important responsibilities we have in this body--to confirm the next 
Supreme Court Justice.
  As the Presiding Officer noted in remarks made a few days ago about 
Judge Gorsuch, he is an exceptionally well-qualified candidate for the 
U.S. Supreme Court. I will go briefly into his bio.
  First of all, he has a sterling academic reputation and credentials. 
He graduated from Columbia, Harvard, and Oxford. He clerked for two 
Supreme Court Justices. He worked at the Justice Department. Very 
importantly--and we are not hearing a lot about it from our colleagues 
on the other side--he was unanimously confirmed for a U.S. court of 
appeals job for the Tenth Circuit in 2006. Senators such as Hillary 
Clinton, Barack Obama, and Joe Biden all voted for him, as well as many 
of my colleagues in this body on the other side of the aisle who are 
still serving.
  He is a westerner. We know that right now the U.S. Supreme Court, 
with the possible exception of Justice Kennedy, has no westerners. 
Geographical diversity on the Court is very important. This morning, my 
colleague Senator Murkowski talked about how the current Supreme Court 
is occupied by Justices who have spent almost their entire lives in the 
Boston, New York, DC corridor. That is not America. That doesn't 
represent the whole country. Judges in Western States focus on issues 
like Native-American law, lands issues, oil and gas issues. It is very 
important, certainly for my State of Alaska, to have a judge with that 
kind of background.
  But it is more than facts on a page that make Judge Gorsuch such a 
strong candidate for the High Court. During Senate Judiciary Committee 
hearings last week, his temperament was also tested and his judicial 
philosophy was articulated. It was clear during those hearings that 
Judge Gorsuch will bring a commitment to following the rule of law and 
that he believes no one, including the President of the United States, 
should be above the law. He reveres the separation of powers and the 
fundamental principle that it is the Congress of the United States, not 
the judiciary, that makes our laws.
  He performed exceptionally well. He answered question after question 
with consistency and displayed a legal philosophy well within the 
mainstream of judicial thought within the United States.
  As the Presiding Officer knows, it is not just Members of this body 
who are talking about Judge Gorsuch and how well qualified he is; 
commentators across the country have focused on how qualified Judge 
Gorsuch is to be our next Supreme Court Justice. Let me highlight just 
a few of their quotes.
  This is from an editorial from the Chicago Tribune:

       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.
       Neil Gorsuch should be confirmed.

  The Detroit News:

       After two days of often hostile hearings, Supreme Court 
     nominee Neil Gorsuch is proving himself an even-tempered, 
     deeply knowledgeable nominee who should be confirmed by the 
     United States Senate.

  The Denver Post said:

       [Judge Gorsuch] possesses the fairness, independence and 
     open-mindedness necessary to make him a marvelous addition to 
     the Supreme Court.

  USA TODAY's editorial board declared: Gorsuch merits confirmation. 
This Supreme Court nominee is qualified within the broad judicial 
mainstream of America.
  In fact, we looked to see if there was any major paper across the 
country or commentator who is opposed to Judge Gorsuch's nomination. It 
was hard to find any. It was hard to find any in any part of the 
country. Two former chief justices of the Tenth Circuit Court of 
Appeals--both appointed by different Presidents of different parties--
stated that Judge Gorsuch ``represents the best of the judicial 
tradition in our country.''
  Even one board member of the liberal American Constitutional Society 
who said he supports Democratic candidates and progressive causes 
declared: ``There is no principled reason to vote no on Judge Gorsuch's 
  He received the highest rating from the American Bar Association. And 
it is not just the ABA, there is a long list of different groups across 
the country, many representing minority groups in America, who have 
supported Judge Gorsuch--the National Congress of American Indians, the 
Native American Rights Fund, the Hispanic Leadership Fund, the Central 
Council of Tlingit and Haida Tribes in Alaska. The list goes on and on 
and on.
  Given the broad-based support--from the left, from the right, from 
the center--why would my colleagues on the other side of the aisle 
threaten the traditions of this institution and not even allow an up-
or-down vote on Judge Gorsuch? Well, I have been listening. I have been 
listening to the speeches to see what they are saying. It seems that 
some of my colleagues are focused on this vague notion of vagueness--
literally, vagueness. If we listen to their comments, they talk about 
Judge Gorsuch's supposed ambiguity, his vagueness, his evasiveness, 
that he won't answer questions on how he would rule on specific cases, 
so they are going to oppose him because of this. Well, these are 
curious and, to be frank, unconvincing reasons to oppose Judge Gorsuch.

  First, as we know, a nominee is typically not expected to say how he 
or she would rule on future cases. Judicial nominees, whether appointed 
by Democratic or Republican Presidents, have said this repeatedly. I 
will provide a quote from a prior nomination hearing by one of our 
current Supreme Court Justices. She stated:

       Because I am and hope to continue to be a judge, it would 
     be wrong for me to say or to preview in this legislative 
     chamber how I would cast my vote on questions the Supreme 
     Court may be called upon to decide. Were I to rehearse here 
     what I would say and how I would reason on such questions, I 
     would be acting injudiciously.

  That was what Justice Ruth Bader Ginsburg told the Senate Judiciary 
Committee in 1993. She continued during her confirmation hearing:

       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.

  Many have called this the Ginsberg standard, one that Justices have 
followed in front of the Judiciary Committee during their confirmation 
hearings and one that Judge Gorsuch also followed. Indeed, during his 
hearing, Judge Gorsuch stated that if the President or others had asked 
such a specific question on how he would rule on a particular case, ``I 
would have walked out'' of the room.
  So my colleagues on the other side of the aisle can't have it both 
ways. They say they want an independent voice on the Court, but they 
are also opposing Judge Gorsuch because he won't tell them how he would 
rule on certain cases. This is a new standard and an impossible 
standard to meet.
  The second reason the vagueness standard of many of my colleagues on 
the other side of the aisle in their opposition to Judge Gorsuch is 
unconvincing is that it ignores the fact that this is a judge with a 
record. They say: He is vague. We are not sure what his views are.
  Judge Gorsuch has decided roughly 2,700 cases, over 800 of which he 
authored. There is nothing vague about that. In 97 percent of the time 
in those cases, he reached a unanimous decision with the other 
panelists on the Tenth Circuit. These are not vague decisions. His 
judicial philosophy and temperament are on full display in literally

[[Page S2338]]

tens of thousands of pages of decisions in his own words. There is 
nothing vague about them.
  My colleagues can challenge him on his mountain of legal opinions, 
but please, with all due respect, let's drop the facade of opposing him 
because of vagueness, and that they don't know what the issues are is 
not an argument that has much merit.
  So despite widespread acclaim from groups across the country, 
representing a broad spectrum of liberals and conservatives, and 
despite a tenured, concrete record as a judge on the U.S. court of 
appeals, my colleagues on the other side of the aisle appear to want to 
engage in a partisan filibuster of Judge Gorsuch's nomination.
  What exactly does this mean? The language, I admit, can be 
confusing--cloture, filibuster, 60-vote threshold. In plain English, 
what is really going on? It means that the minority leader right now 
wants to prevent the Senate from having an up-or-down vote on the 
merits of this Supreme Court nominee. In other words, no vote ever on 
the qualifications of Judge Gorsuch. We will just filibuster.
  I have been watching a number of my colleagues come to the floor and 
talk about what they are planning on doing. The minority leader has 
essentially been saying: We all do this. We are all guilty. Nothing new 
here. This is just a little bit of payback. This is how this place 
  In many ways, these arguments are almost cavalier in what they are 
about to do. But we shouldn't buy that. I have been in the Senate only 
2 years--a mere blink of an eye compared to others--and I missed a lot 
of the other nominations and debates in 2013, the Gang of 14 many years 
ago. But I like to read a lot of history, and here are some facts that 
are important to understand as we debate the Gorsuch confirmation:
  First, there has never been a partisan filibuster of a new 
President's nominee for the Supreme Court--never.
  Second, it has been the custom, always, of the U.S. Senate to give a 
new President's nominee an up-or-down vote. For example, Republicans 
gave this courtesy to President Clinton when he nominated Ruth Bader 
Ginsburg in 1993 and Stephen Breyer in 1994 and President Obama with 
his first-term nominees, Sonia Sotomayor in 2009 and Elana Kagan in 
2010. They all got up-or-down votes.
  Third, there has never been a 60-vote requirement for any Justice on 
the Supreme Court during the confirmation process in the U.S. Senate--
  Let me go through the votes of the current Supreme Court Justices: 
Justice Kennedy, 97 to 0; Justice Thomas, 52 to 48; Justice Ginsburg, 
96 to 3; Justice Breyer, 87 to 9; Chief Justice Roberts, 78 to 22; 
Justice Alito, 58 to 42; Justice Sotomayor, 68 to 31; Justice Kagan, 63 
to 37.
  Incidentally, Justice Scalia, whom Judge Gorsuch would be replacing, 
passed the vote in the U.S. Senate 98 to 0. Note that two of the 
current members of the Supreme Court were confirmed by fewer than 60 
  Bottom line: There has never been a 60-vote requirement in the U.S. 
Senate or a partisan filibuster of a Supreme Court nominee during a 
President's first term--never.
  Here is another fact equally as relevant to Judge Gorsuch's 
confirmation: More than any other President, more than any other 
Presidential election in recent memory, the one last year was clearly 
about the U.S. Supreme Court. Republicans in the Senate and Candidate 
and now President Trump told the American people: There is an open seat 
on the U.S. Supreme Court. This is an important issue. Let the people 
  And they did. Polls show that millions of Americans ended up voting 
for President Trump and against Hillary Clinton based, at least in 
part, on which candidate they believed should nominate our next Supreme 
Court Justice and whether they wanted the Court to act as a 
superlegislature, interpreting a living Constitution, or whether they 
wanted a Justice in the mold of Justice Scalia, with a more modest view 
of how the Court should view its station in our constitutional order.
  The American people, including my constituents, spoke loudly in 
November on this issue of the U.S. Supreme Court by voting against 
Hillary Clinton and for Donald Trump. And to his credit, President 
Trump kept his word on this important issue by putting forward an 
extremely well-qualified candidate who will be a worthy successor to 
Justice Scalia.
  Despite all this--an extremely well-qualified nominee and a national 
election that focused on who should fill the vacancy of the Supreme 
Court--it appears that the minority leader of the Senate is going to 
ignore the will of the American people and set a precedent dating back 
to our Nation's founding by leading a filibuster against Judge Neil 
Gorsuch. We shouldn't allow this to happen, and we won't.
  I hope my colleagues who are contemplating this will change their 
minds because in going forward with this filibuster, who are they 
really punishing? They are punishing the American people, as well as 
undermining the traditions of this body--a body with rules crafted 
carefully over the last two centuries.
  As I mentioned, we need to work together in this body. In my 2 years 
in the Senate, I have tried hard to work with my colleagues on 
bipartisan issues. I have also tried hard to show all my colleagues the 
respect they deserve as duly elected Senators of this important body. 
Whatever the outcome of this vote on Judge Gorsuch, I certainly want to 
make clear that we need to continue respectfully working across the 
aisle for the sake of our Nation, and we need to rebuild trust in the 
Senate. But at the same time, I believe strongly that Judge Gorsuch 
deserves to get an up-or-down vote. I certainly encourage my colleagues 
to bring that vote forward and to confirm this exceptionally well-
qualified candidate to be our next Supreme Court Justice. And the 
American people deserve as much, as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today to speak out against the abuse 
of the Executive authority. Before I do, I want to compliment the 
distinguished Senator from Alaska for his cogent remarks here today on 
the floor. He is one of the great new additions to this body, and he 
ought to be listened to. I personally respect him and appreciate the 
words he said here today.

                            Antiquities Act

  Mr. President, I rise today to speak out against the abuse of 
Executive authority under the Antiquities Act.
  Over the last two decades, past Presidents have exploited the law in 
the extreme, using it as a pretext to enact some of the most egregious 
land grabs in our Nation's history. My home State of Utah has been hit 
especially hard by this Federal overreach. Time and again, Presidents 
have abused their power under the Antiquities Act to proclaim massive 
monument designations--to lock away millions of acres of public land.
  My State has fallen victim to not one but two catastrophic monument 
designations. These designations were made unilaterally, without any 
input whatever from our congressional delegation or even the local 
Utahans whose lives would be directly affected by such decisions. 
Rather than advancing the important cause of conservation, these 
national monuments have come to symbolize Washington at its worst.
  How did we get here? How did a century-old law, which is intended to 
give Presidents only limited authority to designate special landmarks, 
become a blunt instrument for Executive overreach? In answering this 
question, some background is necessary.
  In 1906, Congress passed the Antiquities Act, which granted the 
President limited authority to establish national monuments to protect 
areas containing ``historic landmarks, historic and prehistoric 
structures, and other objects of historic or scientific interest.'' The 
Antiquities Act was a well-intentioned response to a serious problem: 
the looting and destruction of cultural and archaeological sites.
  When applied as intended, the law has been indispensable in 
preserving our Nation's rich cultural heritage. But the law has not 
always been applied as intended; rather, it has been abused, exploited, 
and distorted beyond all recognition. It has been hijacked by past 
Presidents not to preserve archaeological features but to satisfy 
special interests and to advance a radical political agenda--all at the 
expense of States' rights.

[[Page S2339]]

  By signing their authority under the Antiquities Act, past Presidents 
have seized millions of acres of public land, violating both the spirit 
and arguably the letter of the law. We need only look at the history of 
the Antiquities Act and its enactment to see how far we have come and 
how far we have strayed off course.
  As with any law, congressional intent is key. On this point, I would 
like to refer to the House Congressional Record dated June 5, 1906. 
When asked how much land would be taken off the market in the Western 
States by passage of the Antiquities Act, Congressman John Lacey, the 
bill's lead sponsor, gave a simple response: ``Not very much.''
  The bill provides that it shall be the ``smallest area necessary for 
the care and maintenance of the objects to be preserved.'' ``The 
smallest area necessary.'' These words are damning in light of recent 
monument designations which, far from regulating the smallest area 
necessary, have sought to restrict the largest area possible. I wonder 
what Congressman Lacey would say today if he could see how his bill has 
been manipulated for extreme partisan ends. I wonder what he would say 
if he could see how his legislation has been exploited by past 
Presidents to lock up entire sections of State land--all without 
congressional approval. And I wonder what he would say about the two 
most recent monuments designated in Utah: Bears Ears and the Grand 
Staircase-Escalante monuments. Together, these two monuments encompass 
3.25 million acres--an area roughly the size of the State of 
Connecticut. To say that Congressman Lacey and his colleagues would be 
disappointed is an understatement.
  In passing the Antiquities Act more than 100 years ago, Congress did 
not intend to cede undo authority to the executive branch, and they 
certainly did not intend for future Presidents to proclaim the massive 
land grabs of the recent past. They intended to give Presidents only 
limited authority to designate special landmarks, such as the unique 
national arch or the site of old cliff dwellings. Yet today, when it 
comes to the Antiquities Act, there is a shocking disparity between 
what Congress intended and what has actually happened.
  As a case in point, look no further than my home State of Utah, where 
President Obama's last-minute, lameduck monument designation at Bears 
Ears is wreaking havoc on the local population. In the parting shot of 
his Presidency, President Obama defied the entire Utah congressional 
delegation and the will of his own constituents when he declared the 
Bears Ears a national monument. With the stroke of a pen, he locked 
away an astonishing 1.35 million acres--a geographic area larger than 
the total acreage of all five of Utah's national parks combined.
  If that is not enough, consider that Utah's second most recent 
national monument, the Grand Staircase-Escalante, spans 1.9 million 
acres. That is an area double the size of all of Utah's national parks 
combined. When President Clinton proclaimed the Grand Staircase-
Escalante a national monument more than 20 years ago, I remember 
standing on this very floor and speaking out then, just as I am 
speaking out now. My words back then are just as applicable today. I 

       While the 1906 Antiquities Act may indeed give the 
     President the literal authority to take this action, it is 
     quite clear to me that in using this authority, he is 
     violating the spirit of U.S. environmental laws. Real damage 
     has been done here. The failure even to consult prior to 
     making this decision should be considered devastating to 
     representative democracy.

  To this day, the Grand Staircase proclamation remains among the most 
flagrant abuses of Presidential power I have ever seen. Without so much 
as a ``by your leave'' from Utahans, this unilateral action cut off 
access to millions of acres of land, suffocating economic development 
and uprooting the lives of thousands of Utahans who relied on the 
region's resources for their very survival. And just like Bears Ears, 
this designation came with no input from Utah's Governor, the Utah 
congressional delegation, or even local communities.
  The Grand Staircase monument designation exemplified Executive 
overreach of the worst kind. Even Democrats were stunned by this 
shocking power grab, and many of them conceded to me privately when I 
was then shouting publicly that the President was never meant to set 
aside millions of acres through the Antiquities Act.
  Even the San Francisco Chronicle--by no means a conservative 
newspaper--panned President Clinton's Grand Staircase proclamation. In 
1996, the editorial board stated:

       The question is whether a decision of such magnitude should 
     be carried out by Executive order. We think not. This may 
     well be a worthy idea, but it deserves a fair hearing. It 
     deserves to go through public deliberations, as slow and 
     messy as democracy may be, to fully air the concerns.

  That was more than 20 years ago. In the intervening period, nothing 
has changed. Bears Ears was Grand Staircase all over again. When 
President Obama declared the Bears Ears a national monument in the 
twilight hours of his Presidency, he ignored the years of work Utah's 
congressional delegation had spent fighting to pass legislation to 
protect the region via a fair and open process. He ignored the State 
legislature and the Governor. He ignored the stakeholders and even 
local Utahans who were all working together to find a workable 
solution. He ignored the best interest of Utah and cast aside the will 
of the people, all in favor of the top-down unilateral approach meant 
to satisfy the demands of far-left interest groups. This is Executive 
hubris at its worst. It was never supposed to be this way.
  Congress, not the President, is solely responsible under the 
Constitution for the management of property and land within the Federal 
domain. Only through passage of the Antiquities Act can Congress grant 
authority to the President to make limited monument designations. 
Congress entrusted the executive branch with narrow authority, but the 
executive branch has violated that trust time and time again.
  For years, I have fought to check the abuse of Executive power under 
the Antiquities Act. As far as back as 1997, in the aftermath of the 
Grand Staircase proclamation, I introduced legislation requiring an act 
of Congress before the President could establish any national monument 
of more than 5,000 acres. As early as last year, in anticipation of the 
eminent Bears Ears debacle, I wrote a bill prohibiting any further 
extension or establishment of national monuments in Utah without 
express authorization from Congress.
  Most recently, I have been working closely with the Trump 
administration from day one to right the wrongs of previous 
administrations. Within days of his nomination, I indicated to 
Secretary Ryan Zinke that undoing the harm caused by the Bears Ears and 
Grand Staircase monument designations was among my top priorities.
  In a private meeting in my office, I even told Secretary Zinke that 
my support for his nomination would depend largely on his commitment to 
this cause. After gaining assurances from Secretary Zinke that he would 
work with us in this effort, I was eager to support his confirmation. I 
probably would have supported it anyway because he is a fine man. But I 
am really pleased that he agreed with me on the injustices that have 
occurred in Utah.
  Just 2 weeks later, I found myself in the Oval Office where I engaged 
President Trump for over an hour on a wide-ranging discussion that 
focused specifically on the public lands issue. I have to say that I 
was amazed at the President's willingness to help. He listened intently 
as I relayed the fears and frustrations of thousands in our State who 
have been personally hurt by the Bears Ears and Grand Staircase 
monument designations.
  I explained the urgency of addressing these devastating measures. I 
asked for his help in doing so. I was encouraged that, unlike his 
predecessor, President Trump actually took the time to listen and 
understand the heavy toll of such overreaching actions. Our President 
even assured me that he stands ready to work with us to fix this 
disaster. More than any of his predecessors, President Trump 
understands what is at stake here.
  I was really buoyed up by the conversation with him in the Oval 
Office. Indeed, in all my years of public service, I have never seen a 
President so committed to reigning in the Federal Government and so 
eager to fix the damage done by these overbearing monument 
designations. We are fortunate now to have the White House at our side 
in the fight for local control.

[[Page S2340]]

  There are many areas in this country that merit protection. I welcome 
the opportunity to work with my colleagues to further that cause. But 
the process to determine how best to protect these areas is equally 
important. That is why, for decades now, I have vehemently opposed 
unilateral actions to restrict the use of entire landscapes without 
even the charade of a public process.
  Using the Antiquities Act to protect our public lands, we must set a 
new precedent of collaboration and trust between the States and the 
Federal Government. I look forward to working with President Trump to 
establish this new precedent.
  Mr President. I will turn to another matter of pressing importance, 
the confirmation of Judge Neil Gorsuch to be a Justice on the U.S. 
Supreme Court. I have been in a lot of these battles over the years. I 
have to say, this one bothers me as much as any battle we have had.
  In early January of this year, the Democratic leader issued a warning 
to then-President-Elect Donald Trump regarding the President-elect's 
anticipated selection of a Supreme Court nominee. Even before President 
Trump took the oath of office, the Democratic leader was already 
threatening the soon-to-be-President to either pick a ``mainstream and 
independent'' nominee or the Democrats would oppose the President-
elect's choice ``with everything we have.''
  Well, President Trump did exactly what the Democratic leader asked 
when he nominated Judge Neil Gorsuch to the Supreme Court. Not only is 
Judge Gorsuch a mainstream and independent judge, he is easily one of 
the finest and most qualified nominees to the High Court that I have 
seen in all my 40 years in the Senate. His selection was also the 
result of the most transparent Supreme Court nomination process in 
American history.
  President Trump and Hillary Clinton both made the Supreme Court a 
centerpiece of their campaigns and spoke at length about the type of 
judge they would appoint to replace Justice Scalia. Candidate Trump 
even made the novel pledge to nominate someone from a list of judges 
his campaign released to the public. This gave the American people the 
opportunity to vet the list and to discuss more generally the proper 
role of judges in our system of governance.
  When the American people elected Donald Trump to be our next 
President, they ratified his list of candidates. When President Trump 
subsequently selected Neil Gorsuch from that list to be his nominee, he 
kept his promise to the American people. That is who I expected him to 
select at that time.
  Judge Gorsuch's judicial record on the Tenth Circuit paints a clear 
picture of the judge's judicial temperament and philosophy. Of the more 
than 2,700 cases Judge Gorsuch has participated in on the Tenth 
Circuit, 97 percent of them were decided unanimously. Judge Gorsuch 
voted with the majority on that court 99 percent of the time, even 
though the majority were Democrats.
  In the 1 percent of the cases in which Judge Gorsuch dissented, he 
did so with almost the same frequency, whether the majority opinion was 
written by a judge nominated by a Republican or a Democrat President. 
Additionally, Judge Gorsuch has gained bipartisan support, including 
from President Obama's former Solicitor General, Neal Katyal, a man 
whom I respect, said that Judge Gorsuch is committed to the rule of law 
and the judiciary's independence.
  Judge Gorsuch was described by six former Solicitors General 
appointed under four different Presidents as, ``highly respected'' and 
``admired by his colleagues appointed by Presidents of both parties and 
law clerks of all political stripes.''

  The American Bar Association gave Judge Gorsuch its highest rating of 
``well qualified'' to be an Associate Justice on the Supreme Court. I 
think we can all agree that this is a far cry from the profile of an 
extreme or activist judge. It is a far cry from that. That needs to be 
pointed out. I want to know how anyone can, while keeping a straight 
face, honestly make the case that Judge Gorsuch is anything but 
  In reality, quite the opposite is true. Judge Gorsuch is exactly the 
kind of judge we need on the Supreme Court. He is an impartial, 
thoughtful man with tremendous judicial experience, a person that you 
can't help but respect. He has been educated at some of the best 
schools in the world and has excelled at every stage of his career.
  He has served with character, courage, and integrity for more than a 
decade on the Federal bench. It would be hard to even imagine a better, 
more suitable choice for the Supreme Court than Judge Gorsuch. After 
seeing the judge sit through several grueling days of confirmation 
hearings and nearly 20 hours of questioning before the Senate Judiciary 
Committee, my confidence in Judge Gorsuch has only been solidified.
  Despite the Democrat's best efforts before and during the hearings to 
distort his record, he demonstrated time and again that his judicial 
philosophy is to impartially interpret and apply the law and the 
Constitution wherever it might take him.
  Now we are about to witness something unprecedented in the history of 
our Nation. The partisan minority is going to block a vote on a Supreme 
Court nominee. In all of the Senate's 228-year history, that has never 
happened before. Three Supreme Court nominees have faced filibusters in 
our Nation's history. The first, Abe Fortas, faced a bipartisan 
filibuster by Senators of both parties concerned about Fortas's 
questionable ethics background.
  The second and third, William Rehnquist and Samuel Alito, endured 
partisan filibusters by Democrats who disagreed with these nominee's 
judicial philosophies. The filibuster against Fortas succeeded, in 
part, because Fortas lacked a clear majority support, and, in part, 
because he was ethically compromised. The filibusters against Rehnquist 
and Alito, by contrast, failed. Rehnquist and Alito both enjoyed clear 
majority support and both were confirmed. But that was a different 
Senate at the time. There was a lot more open mindedness about the 
qualifications of these judges and their right to sit on the bench.
  I regret to say that we are likely to add a fourth filibustered 
Supreme Court nominee, Neil Gorsuch. Like Justices Rehnquist and Alito, 
Judge Gorsuch enjoys clear majority support. Like Justices Rehnquist 
and Alito, Judge Gorsuch faces opposition from Senate Democrats who 
don't like his judicial philosophy. Why, I will never understand. In 
particular, they object that Judge Gorsuch takes the law as he finds 
it, rather than trying to bend the law toward liberal social ends.
  Unlike Justice Rehnquist and Alito, however, Judge Gorsuch is 
apparently not going to clear the 60-vote threshold for cloture. This 
is because Senate Democrats, with only a few exceptions, have concluded 
that no nominee who does not subscribe to their views of hot-button 
social issues should be allowed to serve on the Supreme Court. Never, 
never, in the history of this body has the Senate allowed a partisan 
minority to defeat a Supreme Court nomination for which there is clear 
majority support.
  The only successful filibuster of a Supreme Court nominee in our 
Nation's history was bipartisan, and it involved an ethically 
compromised nominee, Abe Fortas, who resigned from the bench shortly 
after his nomination failed rather than face impeachment for serious 
conflict-of-interest violations. Those circumstances are not even 
remotely comparable to the situation we face today.
  The filibuster of Judge Gorsuch, should it go forward, will be 
entirely partisan. It will have nothing to do with Judge Gorsuch's 
ethics or character, which are above reproach, and it will occur in the 
face of clear majority support for the nominee.
  Senate Democrats' decision to block Judge Gorsuch should come as no 
surprise to anyone who has been following the confirmation wars for 
more than the last 5 seconds. My Democratic colleagues will no doubt 
shout to the hilltops--some of them. There are some that are standing 
up here too. But they will shout to the hilltops that Republicans are 
ruining the Senate if we decide to put a stop to their unprecedented 
obstruction of this nominee.
  They will no doubt cry that the 60-vote threshold for cloture on 
Supreme Court nominees is sacrosanct and that by putting an end to 
Democrats' unprecedented obstruction, Republicans are somehow 
undermining this institution's ideals.

[[Page S2341]]

  When the American people hear these claims, when they hear Senate 
Democrats argue that Republicans should respond to their unprecedented 
obstruction by allowing a nomination with clear majority support to 
fail, they should recognize these arguments for what they are: 
hypocrisy. The fact is, we are only in this situation, forced to choose 
between rewarding Democrat obstructionism and changing the Senate's 
rules, because of Democrats and the campaign they have waged against 
qualified judicial nominees for the past 30 years.
  Every single escalation of the confirmation wars can be laid at the 
feet of Democrats. This is a simple truth, and nothing my colleagues on 
the other side of the aisle can say can change it. I speak from 
experience. I have been here for through all of it. I was here in 1987 
when Democrats started the confirmation wars with their disgraceful 
treatment of Robert Bork, one of the greatest lawyers in the country 
and a person who was supremely qualified to be on the Supreme Court.
  I remember vividly the day the late Senator from Massachusetts came 
to this floor and smeared Judge Bork as a man would somehow turn back 
the clock to darker days in our Nation's past. I have to say, Senate 
Democrats twisted Judge Bork's words, misrepresented his record, and in 
sum, did their best to turn a good and decent man into some sort of a 
  In their scorched-earth campaign against Robert Bork, Senate 
Democrats sowed seeds of destruction that are coming now to full 
  Next came Clarence Thomas. My Democratic colleagues learned from 
their Bork experience that fabrications and misinterpretations can 
bring down even the most qualified nominee, so they set to work on 
Judge Thomas. Not satisfied merely with denigrating Judge Thomas's 
professional qualifications, they set out to destroy him personally as 
  I have been in the Senate for 41 years, and never in all my time have 
I seen a lower moment than the way the Senate Democrats treated 
Clarence Thomas. No baseless allegation, no lurid lie was too low for 
my Democratic colleagues' attention. To his great credit, Judge Thomas 
endured this slander with dignity and respect and was confirmed by a 
slim 52-to-48 margin.
  Thankfully, after the Thomas ordeal, we stepped back from the brink. 
When Bill Clinton became President and had two Supreme Court vacancies 
early in his term, Senate Republicans did not play tit for tat. 
Instead, we gave Justices Ginsburg and Breyer fair hearings and 
confirmed them overwhelmingly. And how did Senate Democrats pay us back 
for our fair treatment of President Clinton's nominees? They 
filibustered President George W. Bush's nominees.
  I have used the word ``unprecedented'' to describe Democrats' 
expected filibuster of Judge Gorsuch. Well, what the Democrats did to 
President Bush's judicial nominees was also unprecedented. For the 
first time in history, Senate Democrats successfully filibustered 10 
court of appeals nominees. These were nominees with majority support in 
this body. These were nominees who would have been confirmed had they 
gotten an up-or-down vote. I cannot overstate how dramatic a change 
this was to Senate norms and procedures. For the first time in history, 
Senate Democrats created an effectual 60-vote threshold for judicial 
nominees. Remember that Clarence Thomas was confirmed with only 52 
votes. Had Senate Democrats filibustered his nomination, it would have 
been defeated. But they didn't because partisan filibusters of nominees 
with majority support were simply not in the accepted playbook. What 
Senate Democrats did during George W. Bush's Presidency changed the 
Senate forever.
  Next up was Samuel Alito. Like Chief Justice Rehnquist, Justice Alito 
faced a partisan filibuster by Senate Democrats. Like Chief Justice 
Rehnquist, he overcame that filibuster. But what is notable about 
Justice Alito is he received fewer than 60 votes for confirmation. He 
overcame the filibuster because 19 Senate Democrats voted to end debate 
on his nomination even though only 4 ultimately voted for confirmation. 
Fifteen Senate Democrats chose not to filibuster Justice Alito even 
though they opposed his nomination because they recognized that 
filibustering a Supreme Court nominee with clear majority support had 
no precedent in this body's norms or history.
  What happened when Barack Obama became President and Republicans had 
an opportunity for payback? Did they filibuster Sonya Sotomayor and 
Elena Kagan? Of course not. Indeed, many Republicans voted against 
Justice Sotomayor and Justice Kagan, but no Republican tried to prevent 
their nominations from coming to a vote. Once again, Senate Democrats 
escalated confirmation wars, and Senate Republicans chose not to 
  How did Democrats pay us back for our restraint on Justices Sotomayor 
and Kagan? They nuked the filibuster for lower court nominees. The 
irony of this move is really something. It was the Democrats who, 10 
years earlier, for the first time in Senate history, began the practice 
of filibustering courts of appeal judges in an effort to stop President 
Bush's nominees. When Senate Republicans then had the gall not to roll 
over for President Obama once the shoe was on the other foot, Democrats 
simply changed the rules back to what they were in practice 10 years 
prior. Democrats, that is, raised the effectual confirmation threshold 
to 60 votes by instigating filibusters to block Republican nominees and 
then lowered it back down to 50 votes to push through Democratic 
nominees. They did so after only seven failed cloture votes. The 
Republicans, by contrast, endured 20 failed cloture votes during 
President Bush's term and never changed the rules.
  That brings us to today. Having Borked Judge Bork, smeared Justice 
Thomas, instigated the filibuster for lower court nominees when it was 
in their interest, filibustered Justice Alito, and then eliminated the 
filibuster for lower court nominees when it was in their interest, 
Senate Democrats now expect Republicans to drop our hands and allow 
them to block Judge Gorsuch--an unquestionably qualified nominee with 
broad support from across the legal community and the country as a 
  Enough, Mr. President. Enough.
  We have let our Democratic colleagues get away with their games for 
too long. They were for the filibuster before they were against it 
before they were for it. They were the ones who created an effectual 
60-vote threshold for judicial nominees. They were the ones who then 
undid that threshold to assist their short-term political interests 
when they were in power. They are the ones who now, for the first time 
in history, are seeking to block a Supreme Court nominee with clear 
majority support.

  To put the matter bluntly, my Republican colleagues and I are fed up 
with these Democratic Party antics. We will no longer be bound by their 
games and petty partisanship. We will no longer allow them to dictate 
the terms of debate in ways that always advantage their side and always 
disadvantage ours.
  I regret deeply the point we have arrived at. I am an 
institutionalist. I love the Senate and what it represents. I love my 
Democratic colleagues, and they know it. I have been very fair to them 
through the years, and I continue to be. I value debate, and I honor 
bipartisanship. But 30 years ago, my Democratic colleagues sent us down 
this path, and they have done nothing in the years since to turn us 
from this course. To the contrary, they have only hastened our descent.
  If Democrats will filibuster a person like Judge Gorsuch, they will 
filibuster anyone--anyone--who holds to the traditional judicial values 
Republicans embrace. Neil Gorsuch is as good as they come. If he is not 
good enough for Democrats, no one will be.
  Democrats demand that Republicans choose a nominee they would choose 
if they held the White House, when that has never been the standard for 
Supreme Court nominees and defies all logic and common sense. They 
demand the power to veto President Trump's choice even though the 
Supreme Court was, in all likelihood, the issue that won him the 
election. And I believe that. And they demand that Republicans keep the 
rules sacrosanct when they have changed the rules and changed the rules 
and changed the rules.
  I am not happy that we are where we are, but I can say without 

[[Page S2342]]

that we are here because of what Democrats have done over the past 30 
years to poison the confirmation process.
  I am about to change the rules if necessary to put Neil Gorsuch on 
the Supreme Court. I won't be happy about that, but I will do it 
because Judge Gorsuch deserves confirmation and because I refuse to 
reward Democrats for 30 years of bad faith in blocking, stalling, and 
smearing Republican nominees.
  Enough, Mr. President. Enough.
  I hope my colleagues will come to their senses and realize that we 
ought to be working to support people of the quality of Judge Neil 
Gorsuch. There will come a time when they are going to have nominees 
before this body--I kind of hope that doesn't happen, but I think it is 
bound to happen--and when they do, I hope my fellow Republicans won't 
treat their nominees the way they are treating ours. It is abominable, 
it is abysmal, it is wrong, and I think it is time for everybody in 
this country to know that.
  Mr. President, I used to try cases in Federal court, in Pittsburgh 
and in Utah. I had tremendous respect for Federal court judges. Mainly 
the judges in Pittsburgh were all Democrat. The judges in Utah more 
often were Democrats, some Republicans. But I have got to say that they 
were good judges, and I was very proud to be able to present my cases 
in front of them.
  All I can say is that in all my years of working on the Judiciary 
Committee, trying cases before I came here, having an AB rating, the 
highest rating that Martindale-Hubble grants to attorneys for ability 
in both Pittsburgh and Utah, I have to say that I am very disturbed by 
the arguments made against Judge Gorsuch, and I have to say that I 
don't think you can find a better more qualified person to be on the 
Supreme Court.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Tillis). The clerk will call the roll.
  The senior assistant legislative 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. Without objection, it is so ordered.
  Mr. BLUMENTHAL. Mr. President, we will vote today and tomorrow on the 
Supreme Court nominee, Neil Gorsuch, in the midst of a looming 
constitutional crisis. Only in the past few weeks, the Director of the 
FBI has confirmed that his agency is investigating ties between 
President Trump's associates and Russian meddling in our recent 
  The urgent need for an impartial investigation and the possibility of 
the Supreme Court's having to rule on a subpoena directed to the 
President of the United States is very real. The repeat of United 
States v. Nixon is far from idle speculation. The independence of our 
judicial branch has never been more important. It has never been more 
  When the story of this constitutional crisis is written, I believe 
that the heroes will be an independent judiciary and a free press. An 
independent judiciary is the bulwark against overreaching and 
autocratic tyranny, and the free press has uncovered much of the facts 
that have prompted the FBI investigation and, I hope, eventually--
sooner rather than later--an independent prosecutor because only a 
special prosecutor can bring criminal charges that will hold 
accountable wrongdoers who have broken our criminal laws.
  In this constitutional crisis, respect for an independent judiciary 
is more important than ever before, but it is threatened by forces that 
are powerful and undeniable. It was threatened first by the denial to 
Merrick Garland of a hearing and a vote, relying on an invented 
principle found nowhere in the Constitution that the President of the 
United States--then Barack Obama--somehow lost his power to appoint 
Justices during the fourth year of his term. That act of political 
expediency demeaned this institution, the U.S. Senate, and it also 
disrespected our judiciary. It dragged the Supreme Court into the 
partisan mire that has caused such drastic dysfunction in this branch 
of government.
  President Trump demonstrated his own disrespect for the judiciary 
through his constant, repeated, relentless attacks, calling one member 
of the bench a ``so-called judge'' simply because he ruled against him 
and struck down on constitutional grounds President Trump's illegal 
travel ban--really a Muslim ban. His demeaning and disparaging comments 
have attempted to shake the foundation of respect for judicial rulings 
that have held him accountable and potentially every President 
accountable to the American people, along with the Senate and the House 
of Representatives. He has attempted to convince his audience that 
judges who rule against him are not only wrong but illegitimate--in one 
case, because of a judge's ethnic heritage.
  I would have thought that there would have been bipartisan shock and 
outrage at such suggestions, but the silence across the aisle has been 
deafening. Such a campaign by the Executive against the judicial branch 
would be extraordinarily disturbing regardless of the circumstances but 
particularly so now in the midst of this constitutional challenge.
  President Trump's disrespect for the judiciary was emphasized, as 
well, by how he selected his nominee for the Court and how he 
established a litmus test for that nominee. He proudly proclaimed that 
litmus test, declaring on multiple occasions that his nominee would 
automatically overturn Roe v. Wade and strike down gun violence 
prevention measures. He outsourced that selection process to extreme 
rightwing groups, like the Heritage Foundation, choosing from their 
list, from their preapproved selectees. Against this backdrop, 
President Trump nominated Neil Gorsuch to the Supreme Court.
  I want to make clear that despite my outrage about what happened to 
Merrick Garland, which was far worse than a filibuster--one of my 
colleagues has termed it the ``filibuster of all filibusters''--and 
despite my deep concern over a nomination from a President who so 
disrespects the judicial branch, I was prepared to give Judge Gorsuch a 
fair hearing. I believe my colleagues on the Judiciary Committee and I 
provided that hearing, and we will provide a vote.
  I strongly believe that during this process, Judge Gorsuch had a 
special obligation to be forthcoming. I want to be clear that that is 
not opining on cases or controversies that may come before him or 
issues that may be before his Court if he is confirmed. Unlike prior 
nominees, he absolutely refused to say whether he agreed with core 
principles and precedents, well-established and long-accepted decisions 
of the Supreme Court that embody and enshrine principles that the 
American people have accepted and that they expect the Supreme Court to 
  There is no tradition of a Supreme Court nominee's refusing to answer 
every question posed to him as Neil Gorsuch did, even questions about 
iconic cases. Justice Kennedy and Chief Justice Roberts answered 
unambiguously that they believed that Brown v. Board of Education was 
rightly decided. Justice Roberts also said of the decision in Griswold 
v. Connecticut: ``I agree with the Griswold Court's conclusion.'' On 
the related case of Eisenstadt v. Baird, Justice Alito said: ``I do 
agree with the result in Eisenstadt.'' Such statements do not prejudice 
any litigants or prejudge any cases; instead, they provided Senators 
and, more importantly, the American people with the confidence that 
these Justices adhere to long-settled legal principles that have formed 
the basis of critically important cases that came afterward. How far 
these principles may extend is a live issue, but their underlying 
legitimacy is not and should not be.

  Unfortunately, at his hearing, Judge Gorsuch would tell us only that 
Griswold and Eisenstadt were precedents--or decisions--of the Court, 
and he doubled down on his evasiveness in response to written questions 
that were submitted just last week. There was no reason for him to 
diverge from the kinds of answers that were provided by Justice Roberts 
and Justice Alito unless he, unlike them, disagreed with the reasoning 
that was used in these cases.
  These cases go to the core of the right to privacy and equal 
treatment under the rule of law. The constitutional right to privacy 
underlies not

[[Page S2343]]

just the rights of couples to use contraception, which was the issue in 
Griswold and Eisenstadt, but the right of women to control their own 
bodies, as established in Roe v. Wade, and couples of different races 
to marry, as established in Loving v. Virginia, or the right of same-
sex couples to equal treatment, as established in Lawrence v. Texas and 
Obergefell v. Hodges. Justice Brandeis, in one of the original privacy 
decisions, called this right to privacy ``the right to be left alone,'' 
and it is a core constitutional principle that Chief Justice Roberts 
endorsed as well.
  If Judge Gorsuch does not believe in this fundamental right or equal 
protection under the rule of law, the American people deserve to know 
it. Unfortunately, his continued evasion of my questions and those of 
others tells a different story. I am left with the inescapable 
conclusion that Judge Gorsuch passed the Trump litmus test--an 
automatically anti-choice, pro-gun conservative and an acolyte of hard-
right special interests who screened and selected his name. Yet I am 
equally and maybe more concerned by Judge Gorsuch's approach to cases 
dealing with worker safety and consumer rights, issues relating to 
clean air and water and the fundamental role of the public sector in 
protecting individuals and putting their rights above corporate 
  The important concerns my colleagues and I have raised have been 
caricatured by some Senate Republicans to a belief that judges should 
always rule for sympathetic plaintiffs, and that is simply not so. The 
TransAm Trucking case, which has been discussed at length on the floor 
and in committee, is of concern not because of the individual but 
because of the reasoning he used. He relied on a handpicked dictionary 
definition to rule against a worker who left his truck as he was under 
threat of grave physical peril and perhaps death, and he distorted the 
meaning of the statute, leaving aside basic common sense and feeling. 
He called Congress's declared statutory purpose--protecting health and 
safety--too ``ephemeral and generic'' to provide an interpretive guide. 
That is how he characterized our purpose here in protecting the safety 
of workers. This approach shows that Judge Gorsuch looks for guidance 
not in the words that Congress has chosen but in his own dictionary. 
And it may not even be Webster's; it may be the dictionary that is in 
his head or is in the heads of the rightwing groups who screened and 
proposed his name.
  Then there is Judge Gorsuch's open hostility to the Chevron doctrine, 
which is a term that was likely meaningless and incomprehensible to 
most Americans before these proceedings and may be again after we are 
done. Yet it is a profoundly important principle of law that 
essentially stands against judicial activism--the very defect that many 
of our Republican colleagues believe is too characteristic of the 
courts today.
  The structure of our government depends on the flexibility of these 
agencies that protect the purity of our drinking water, the safety of 
workers on construction sites, the integrity of our financial markets, 
and much, much more, so that it may do its job and enforce rules and 
laws that provide not only protection for ordinary people, everyday 
Americans, but also a level playing field for the good guys who want to 
do the right thing, and they are the majority of businesses in this 
  The proposed abandoning of the Chevron doctrine that Judge Gorsuch 
supports would eviscerate the enforcement of these basic rules that 
protect workers and consumers--people who drink water in their homes 
and breathe the air and go to work every day and expect to come home 
safely, as well as people who invest their money in a way that is 
protected against fraud.
  As Emily Bazelon and Eric Posner wrote this Sunday in the New York 

       Judge Gorsuch is skeptical that Congress can use broadly 
     written laws to delegate authority to agencies in the first 
     place. That can only mean 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 

  I ask unanimous consent that the article be 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 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, issued 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

[[Page S2344]]

     meaning of an 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. BLUMENTHAL. His philosophy represents the height of activism, 
because it would allow courts to substitute their policy judgments for 
agency expertise. Abandoning the Chevron doctrine and the principles it 
represents invokes a desire to destroy a broad array of rules that 
protect critical rights. One such rule was issued by the Occupational 
Safety and Health Administration in the aftermath of a Connecticut 
tragedy at L'Ambiance Plaza decades ago when a collapse killed 28 
workers in Bridgeport, CT. The rule prohibiting the use of the lift 
slab construction technique that led to L'Ambiance's collapse has now 
saved the lives of others. But would it have survived a review by Judge 
Gorsuch? My fear is that he would have struck it down and substituted 
the activist instinct of a judge instead--protecting the corporations 
that might use it.
  Today we still know very little about Judge Gorsuch's core beliefs 
because he evaded so many questions. But here is what we do know. We 
know that the man who hired him has said he passes his rightwing litmus 
test. We know that conservative organizations have spent millions of 
dollars on the prospect that he will move American law dramatically to 
the right. And we know that he will not answer questions that his 
Republican-appointed predecessors answered about core tenets of 
American jurisprudence. In short, he has left us with substantial 
  Let me conclude on this note--that doubt. Important and critical 
doubt that should preclude us from confirming him today leaves women 
wondering how long they will have autonomy over their healthcare 
decisions, same-sex couples questioning whether they might be denied 
the right to marry the person they love, workers and consumers doubting 
their rights, and Americans fearing the Court will abandon protections 
of privacy, equality, and the rule of law.
  That is why I cannot support this nomination and why I urge my 
colleagues to support a filibuster to block it.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.

            Unanimous Consent Agreement--Executive Calendar

  Mr. McCONNELL. Mr. President, I ask unanimous consent that following 
leader remarks on Monday, April 24, the Senate proceed to executive 
session for consideration of Calendar No. 31, the nomination of Sonny 
Perdue to be Secretary of Agriculture. I further ask that the time 
until 5:30 p.m. be equally divided in the usual form and that at 5:30 
p.m., the Senate vote on confirmation with no intervening action or 
debate, and that if confirmed, the President be immediately notified of 
the Senate's action.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for 
up to 20 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                             Climate Change

  Mr. WHITEHOUSE. Mr. President, this is my 163rd ``Time to Wake Up'' 
speech. I persist in the hope that one day these little water drops 
will ultimately cut through the stone of fossil fuel intransigence.
  Last week our new President, Donald Trump, announced an Executive 
order aiming to wipe out many of his predecessors' climate change 
measures. So I would like to take some time this evening to examine his 
Executive order--which is, in many respects, a sham--and show how very 
far away it is from the actual wishes of the American people.
  So to set the scene, exactly as the big polluters wanted, the Trump 
Executive order purports to roll back climate protections. It seeks to 
change rules for how industry controls methane leaks from natural gas 
extraction and to lift a ban on new coal leases on our Federal lands. 
It signals an effort to unwind the Clean Power Plan, which has helped 
put us on track to sharply reduce carbon emissions over the next 
decade. Typical for this insider-friendly administration, it is a 
polluter's wish list, but terrible for the American people--sad, as the 
President would say.
  President Trump promises that this will revitalize the coal industry, 
but it won't. Appalachian coal is being crushed in the market by 
Wyoming coal, and cheap natural gas is crushing both Appalachian coal 
and Wyoming coal, and ever-cheaper renewables are catching up on them 
all. So like so much of what this Oval Office does, this was political 
theatrics, not real policy.
  The Clean Power Plan is going nowhere because America is not, despite 
Trump's best efforts, a banana republic. The administrative agencies 
that Trump directed to stop taking action on climate change are 
actually obliged to follow the law, and they will be held to the law. 
Under the Administrative Procedures Act, these agencies have to follow 
real facts, not conjure up ``alternative facts'' from the fever swamp 
of the Breitbart imagination. Their record and their decisions will be 
reviewed by courts--not ``so-called'' courts, real courts. 
Administrative agencies cannot make decisions that are, to use the 
standard of administrative law, arbitrary and capricious. This is an 
Oval Office that lives by being arbitrary and capricious, but 
administrative agencies cannot be, or their work will be thrown out in 

[[Page S2345]]

  The question of carbon dioxide as a pollutant has been settled by the 
U.S. Supreme Court. Even Administrator Pruitt seems to recognize the 
folly of trying to undo the EPA carbon dioxide endangerment finding. So 
we have, as a matter of law, a dangerous pollutant, and under the law, 
it must be regulated. So this performance of the Trump Show is a waste 
of time because ultimately lawyers and courts will give the law--the 
law--the final say.

  Courts are actually pretty good places for addressing climate change. 
It is very hard for the lies that are at the heart of climate denial to 
withstand judicial scrutiny. Smelly conflicts of interest can be 
exposed, and administrators with those smelly conflicts can be removed 
or recused. Judges aren't supposed to be influenced by campaign 
contributions or political threats. The law, and real facts, not 
alternative facts, prevail.
  In litigation like the cases in New York and Oregon, the fossil fuel 
industry will face discovery, testimony, and cross-examination. Lawyers 
and courts will ultimately force things back on track. In the meantime, 
this Trump show makes losers of the American people. The Clean Power 
Plan is a reasonable approach to confronting our carbon problem. It 
gives States flexibility, and it would save American families $85 a 
year on energy costs once fully implemented. Good luck making a better 
  I represent Rhode Island, a downwind State prone to air pollution 
from out-of-State smokestacks. We are also a coastal State, where 
rising seas driven by climate change threaten our coastal towns. I am 
sure the Presiding Officer can sympathize with the risk to coastal 
communities as the sea levels rise.
  Just this past week, our Providence Journal had a story that said 
there are seven water treatment plants that are in danger of inundation 
in a 100-year storm, which, of course, is becoming more and more likely 
each year. So for Rhode Island, reducing carbon pollution and other 
greenhouse gases is part of preserving the map of the State we love and 
protecting the health of our people.
  We need EPA, because our State environmental agency can't regulate 
out-of-State pollution. That brings me to the man standing next to the 
President as he signed this order, EPA Administrator Scott Pruitt. He 
is a man who built his career raising money from the industry, and for 
years lent his badge of office to the industry-enabled legal assault on 
the Clean Power Plan. As you might imagine, he beamed as President 
Trump passed him the pen used to sign the Executive order.
  Years ago, in Central and South America, fruit company puppets ruled 
banana republics. They wore ostentatious uniforms and enjoyed the 
trappings of power, but it was the fruit company backers who really 
called the shots. That is why banana republics are called banana 
republics. The fossil fuel industry is well on its way to try to turn 
America into a banana republic, but it won't work. It is a stain upon 
the Senate that Pruitt actually got through the Senate without ever 
having to disclose who funded his political dark money operation. That 
is a first. That is a first. The Republican majority would not have 
those questions answered because they were so eager to shove this 
fossil fuel operative into the Administrator's seat at EPA. 
Inconvenient questions like that wouldn't get answered in banana 
republics, either.
  While fossil fuel interests have been calling the shots in 
Washington, the American people have been of an entirely different 
mind. Let me show several polls that have come out over the past few 
weeks documenting public concern about climate change.
  The Gallup poll shown here found that 71 percent of the American 
people believe climate change is happening--71 percent. Seventy-one 
percent trust scientists that, in fact, climate change is happening; 68 
percent believe that global warming is caused by human activities; 62 
percent believe we are already feeling the effects of climate change in 
our lives; and 45 percent worry a great deal--worry a great deal--about 
global warming.
  A recent poll indicates that climate change is the top worry for 66 
percent of Democrats.
  Yale's program on Climate Change Communication recently launched an 
extensive interactive map. It was featured recently in the New York 
Times. It shows that Americans all over the country overwhelmingly 
believe that climate change is real and support a variety of actions to 
address it. So let's start with what Americans believe. Seventy percent 
believe that global warming is happening, and 53 percent believe it is 
caused mostly by human activities. Most scientists think that global 
warming is happening--that is a near majority--and 71 percent trust 
scientists about global warming. That, by the way, compares to 9 
percent of the Republican Senate caucus when we called a vote on the 
issue last Congress. So if we are looking for who is out of step here, 
it is the Republican Senate caucus that is very out of step with the 
  And when you go on to solutions, 82 percent of Americans want 
research into renewable energy sources; 75 percent want to regulate 
CO2 as a pollutant; and 69 percent want to set strict 
CO2 limits on existing coal-fired powerplants.
  Actually, the Clean Power Plan was a good deal softer than strict 
CO2 limits, and even then, 69 percent of Americans support 
it, and 66 percent of Americans support requiring utilities to produce 
20 percent of their electricity from renewable sources.
  So my colleagues from Republican States might think this data is 
representative of people living in their districts, that this is being 
biased by concern from blue States. Well, here is a State-by-State 
look. So these are all the States. The colors reflect the percentage of 
Americans who think that climate change is happening. The break point 
from blue to tan is the 50-percent break point. So in every single 
State in the Union, no matter how red, a majority of Americans 
understand that climate change is happening. How that 50 percent ends 
up being 9 percent on the Senate floor is a story that I have told in 
other speeches. But we will see that at 45 percent, it is just pale 
blue. There is not a bit of pale blue anywhere. The entire country is 
above 50 percent.
  So the next item this allows us to look at is Americans who support 
funding for research into renewables. Now, the lowest color here is the 
kind of deep orange and that comes in at 75 percent. That is the lowest 
point of any State in wanting support funding for research into 
renewables--75 percent--and it goes all the way up into the 90s.
  For renewable research in coal country, we see 82 percent support in 
Wyoming; 81 percent support in West Virginia; 79 percent support in 
Kentucky; and the same in the oil patch--79 percent of Texans support 
renewables. Despite this support, President Trump recently proposed 
massive cuts, showing once again that the Trump show is not the America 
show even in fossil fuel States.
  The support for carbon dioxide limits on existing coal-fired plants 
is also widespread. In all 50 States--in all 435 red, blue, and purple 
congressional districts--there is majority support, every single place. 
So what did President Trump and the fossil fuel operative at EPA do in 
the face of this? Signed this silly Executive order purporting to undo 
the Clean Power Plan.
  Yale's map allows us to do some interesting stuff. It is interactive, 
so we can zoom in. Let's take a quick zoom in Oklahoma, Administrator 
Pruitt's home State.
  As we can see, in every congressional district, a majority of 
Oklahomans believe climate change is happening, trust climate 
scientists about climate change, support regulating carbon dioxide as a 
pollutant, and support setting strict carbon dioxide limits on existing 
coal-fired powerplants--even in Oklahoma.
  So who is Scott Pruitt representing? Because he is certainly not 
representing any State in the country, any congressional district in 
the country, certainly not representing Oklahoma or any congressional 
district in Oklahoma.
  Interestingly, not too long ago, President Trump and his children 
were on the same page as those majorities of Oklahomans and Americans. 
I have shown this before: In 2009, Donald, Ivanka, Donald Junior, and 
Eric Trump supported meaningful and effective measures--in an ad in the 
New York Times to fight climate change--calling

[[Page S2346]]

climate change ``scientifically irrefutable'' and warning that its 
consequences would be ``catastrophic and irreversible.'' So 7 years 
ago, the entire Trump family recognized that climate change was based 
on scientifically irrefutable evidence and had catastrophic 
irreversible consequences.
  Despite the popularity of getting something done on climate change in 
every single congressional district in the country, we do nothing. What 
is up with that, if not politics--fossil fuel industry politics? The 
most voracious special interest in American politics, the fossil fuel 
industry, has captured the Trump show, installed its flunkies at the 
EPA, and hopes to unwind environmental and public health safeguards 
that the public supports.
  So I have to keep asking the fossil fuel guys: How do you think this 
ends? Are you delusional enough to believe that you can defeat real 
science and ignore both the laws of nature and the will of the American 
  It is bonkers. It is political power run amuck.
  We have a chance to push back a little bit. Scientists will be 
marching in Washington, DC, and around the country on April 22 to 
reject the phony-baloney alternative facts of President Trump. Please 
join them wherever you can. The following weekend, people from around 
the country are coming to DC--April 29--for the People's Climate March. 
I was in the People's Climate March in September 2014 with more than 
400,000 other concerned Americans, and it was a heartening and 
energizing experience. So mark your calendars for April 22 and for 
April 29, and come to DC or to the satellite marches being held around 
the country.
  As these maps have shown, you are not alone in seeking climate 
action. Every single congressional district in the country wants 
climate action. It is only the death grip of the fossil fuel industry 
on this building that prevents that from happening.
  So help make these the last days of denial by this dirty industry and 
its rightwing climate denial fanatics. As days and months slip by, we 
lose precious time to address both the harm to Mother Earth of climate 
change and the harm to America of being made ridiculous around the 
world by our obeisance to the fossil fuel industry. We are supposed to 
be the city on the hill, not fossil fuel's banana republic.
  It is time for America to begin leading again on climate. It is time 
to wake up.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. BENNET. Mr. President, our founders knew that ``while history 
does not repeat, it does rhyme.'' That is why they mined the politics 
of ancient Greece and Rome for lessons about the promise and the perils 
of self-government. In their wisdom, they placed those lessons at the 
heart of the American political experiment. Two hundred thirty years 
later, that experiment has exceeded their wildest hopes, in no small 
part because generation after generation of Americans--including 
elected officials, including Members of this body--understood that our 
government is far more than the sum of our laws or the letter of our 
Constitution. Our system is also held together by rules, written and 
unwritten, that help elected officials resolve their differences 
without unleashing a downward spiral of recrimination that could 
endanger the Republic itself.
  They understood, for example, that while civility, compromise, and 
cooperation are not required by law, laws cannot pass without them. 
They recognized that while the majority may have the power to rule on 
its own, it should not trample over the minority. They understood that, 
at some point, partisanship should give way to patriotism.
  Throughout history, including moments far more difficult than our 
own, these principles were the quiet guardrails of our politics, 
keeping dysfunction at bay. But in recent years, we have begun tearing 
these guardrails down, and in doing so, we risk the revenge of history 
by ignoring it.
  There is a tendency around here to think that our problems are unique 
and that the consequences of our actions are fleeting.
  Some 2,400 years ago, the ancient history of Korsia was consumed by 
civil war. According to Thucydides, both sides spared ``no means,'' he 
wrote, ``in their struggles for ascendancy. . . . In their acts of 
vengeance they went to even greater lengths, not stopping at what 
justice or the good of the state demanded, but making the party caprice 
of the moment their own standard.''
  As the civil war intensified, both sides struggled to end it because 
``there was neither promise to be depended upon nor oath that could 
command respect; but all parties dwelling rather in their calculation 
upon the hopelessness of a permanent state of things, were more intent 
upon self-defence than capable of confidence.''
  The Founders read Thucydides. They knew that once factions cross the 
line, once they violate tradition in an escalating retaliation, it 
becomes very hard to turn back.
  James Madison in particular understood the peril of faction. He wrote 
how people with ``a zeal for different opinions concerning religion, 
concerning government, and many other points'' have ``divided mankind 
into parties, inflamed them with mutual animosity, and rendered them 
much more disposed to vex and oppress each other than to cooperate for 
their common good.''
  They also feared that, once in power, majority factions would abuse 
that power to run roughshod over the minority. In a country with such 
diverse beliefs and traditions, doing so could threaten the very 
stability of the Republic.
  For these reasons, the Founders embedded checks in the design of our 
government. That is why in the Senate we represent entire states, not 
gerrymandered districts. Colorado, for example, has roughly equal 
numbers of Democrats, Republicans, and Independents. That is why the 
Senate gives smaller States disproportionate representation, with 
Colorado receiving the same votes as California.
  That is why traditions of the Senate hand the minority tools to 
encourage consensus between political parties. The filibuster is one of 
those tools, and it has been used for good and for ill throughout our 
history. By requiring the consent of 60 Senators to proceed on key 
votes, the filibuster ensures that the legislation we pass and the 
nominations we approve reflect at least a modest level of consensus. 
The filibuster is meant as a tool of last resort, but in recent years 
it has become yet another weapon in our endless partisan warfare. It 
was not always that way.
  From George Washington to George W. Bush, the filibuster was used 
just 68 times against Presidential nominees. But during just the first 
5 years of the Obama administration, Republicans used the filibuster 79 
times against his nominees. That was my first term in the Senate, and 
at that time, I saw the filibuster the way many Americans still do--as 
an undemocratic tool for delay and gridlock. So in 2013, after 
unprecedented Republican obstruction of highly qualified nominees, I 
voted with the Democratic majority to end the 60-vote threshold for 
most Presidential nominations, invoking what is known as the nuclear 
  Although Republicans were wrong to abuse the rules, Democrats were 
wrong to change them. Even as we changed the rules, however, we made a 
point to retain the filibuster for Supreme Court nominations, 
recognizing their profound influence on our country's laws.
  Last year, dysfunction in the Senate reached a new low when Senator 
McConnell denied Judge Merrick Garland, President Obama's nominee for 
the vacancy left by the late Justice Scalia, the courtesy of even a 
hearing, to say nothing of a vote. That was an offense to the 
traditions of this body and our Constitution.
  I recognize that it is impossible to separate politics from the 
courts, but at the same time, we must not allow the judiciary--and 
especially the Supreme Court--to become a pure extension of our 
partisan elections and politics. Alexander Hamilton wrote that 
``liberty can have nothing to fear from the judiciary alone, but would 
have everything to fear from its union with either of the other 
departments.'' Continuing, he wrote that because of ``the natural 
feebleness of the judiciary, it is in continual jeopardy of being 
overpowered, awed, or influenced by its co-ordinate branches.''
  Our actions over the last few years--and I would say over the last 
few days--jeopardize not only the Senate,

[[Page S2347]]

but also the judiciary. Today, some of my colleagues plan to filibuster 
President Trump's Supreme Court nominee, Judge Neil Gorsuch. The 
Republican leadership has responded by threatening to invoke the 
nuclear option, which would eliminate for all time the 60-vote 
threshold for Supreme Court nominees and allow them to confirm Judge 
Gorsuch with the narrowest partisan majority. This is precisely the 
outcome our Founders feared, when lifetime appointments to our highest 
Court, which touches every aspect of American life, become just another 
partisan exercise. We must not go down this road.
  This President may have several more opportunities to nominate a 
Supreme Court Justice during his term. If that happens, Republicans 
would face enormous pressure to nominate an extreme candidate, knowing 
that they could confirm them without a single Democratic vote--indeed, 
that they would be expected to confirm them without a single Democratic 
vote. And to those who believe that President Trump could not nominate 
someone more outside the mainstream than Judge Gorsuch, I would say to 
just look at some of President Trump's Cabinet nominees, some of whom 
are among the least qualified and most radical ever confirmed by this 
body. By the way, under the change to the rules that we made, it is the 
first Cabinet to be confirmed requiring just 51 and not 60 votes.
  Not to put too fine a point on it, but if you don't like the ring of 
Judge Gorsuch, how do you feel about Justice Pruitt, who doesn't 
believe in climate change, or Justice Sessions, who has a record of 
opposing civil rights and equality? If we continue down this path, both 
of those could be confirmed with a slim majority vote.
  With respect to Judge Gorsuch, I am proud he is from Colorado. But I 
am concerned by his judicial approach, which too often seems to rely on 
the narrowest interpretation of the law with little appreciation for 
its context. In particular, I believe he has far too much confidence in 
the original meaning of the words in legislation or, for that matter, 
even the Constitution. Having worked on legislation for nearly a decade 
now, I know these words, so often written in the dead of night in 
meager attempts to let everybody go home, cannot be explained without 
reference to the legislative context or human history or lawmakers' 
intent. Sometimes a comma really does end up in the wrong place.
  Although I have reservations about his approach to the law, I do not 
have reservations about his qualifications for the Court. He is a 
committed and honorable public servant, and that is why so many members 
of the Colorado bar and bench support his nomination. Qualified 
nominees deserve an up-or-down vote. That is the tradition of this 
body. How members vote is a matter of conscience for each of us.
  For all of these reasons, and in the hope of preserving the 
minority's voice in our government, which so many generations before us 
have done, I will oppose efforts to filibuster this nomination. If we 
go down this road, we will undermine the minority's ability to check 
this administration and all those who follow.
  Today we have a President who does not appreciate the separation of 
powers and who has made unprecedented attacks on the free press and the 
judiciary. The country needs an empowered Senate minority right now, 
more than ever. More than that, the country needs a Senate that can 
forge a consensus about our future, rather than carrying on the bitter 
and tired divisions of the past. I know it can be hard. I have been 
here long enough to know it can be hard for both sides to see beyond 
the partisan tactics of the moment. Lawmakers will never lack for an 
excuse to break with custom or change the rules to their benefit. They 
may even argue, as some recently have, that the damage is not that 
bad--that everything can continue on as normal.
  We should know better than that. Our Founders certainly did. They 
would recognize our path today in the currents of history. The Roman 
Republic endured for nearly 500 years, but it was brought low by events 
that should seem eerily familiar to people in this Chamber.
  In 60 BCE, the Roman Senate was consumed by a controversial land 
reform initiative. One side was led by a Senator named Cato; the other, 
Julius Caesar. To stop land reform and other initiatives, Cato employed 
delay tactics similar to the filibuster, freezing the Roman Senate for 
months. While the action was within the rules, it broke with Senate 
custom. Caesar vowed to press forward. Cato's allies responded by 
declaring a religious holiday for the rest of the legislative calendar, 
stopping the reform effort in its tracks.
  In a further break with precedent, Caesar bypassed the Senate and 
took the bill to the people's assembly for approval. Furious, Cato's 
allies boycotted the government and postponed the next election by 3 
months. While Caesar eventually triumphed, the incident intensified a 
cascade of recrimination that the Roman Senate struggled to escape. 
Legislative strikes, delayed elections, and believe it or not, 
shutdowns grew in frequency. Manufactured crises became routine.
  As the dysfunction grew, the Senate became increasingly irrelevant, 
as power flowed to Caesar and military leaders. Even as Senators 
recognized the danger, they failed to correct course. Too much damage 
had been done. Centuries-long custom had been broken. Trust among 
Senators had eroded. Confidence in the body collapsed.
  As dysfunction in the Senate rose, so did popular calls for a 
strongman to clean up the mess. Within a decade, Caesar crossed the 
Rubicon with an army, and the Republic soon gave way to tyranny. It 
would take 1,300 years for another large Republic to emerge--this time 
in the United States of America.
  Unlike us, our Founders knew this history as well as their own. But 
they could not guarantee that we would heed its lessons. That is why 
they built institutions to check the worst impulses of faction, to help 
us navigate profoundly consequential decisions--like confirmations for 
the Supreme Court--without tearing each other apart. But the Founders 
also placed their faith in the willingness of elected officials to 
resist the lure of narrow interests or passions of the moment and rise 
up to defend their institutions and our traditions, especially in hard 
times. We must not betray their faith.
  With each escalating crisis, we damage not just the Senate, but the 
Republic. The Rubicon may be far, but with each rule and custom broken, 
we draw nearer. Choices on both sides have brought us to this low 
point, but I have faith that we can choose--and we should choose--a 
different path. We can choose to step back from the brink to find 
common ground, to fulfill our obligation in the time we are serving 
here to sustain the American experiment for the next century and 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN. Mr. President, I always appreciate the remarks--the well-
thought-through remarks of my colleague, and the history lesson putting 
it into context is always so important and something we should do more 
of in this body.
  I thank Senator Bennet for his words.
  The Supreme Court, as we know, has tremendous influence over the 
lives of our country, the lives of Ohioans, my State, and the lives of 
so many. Nominees must defend the rights of all Americans to make their 
own healthcare decisions, to collectively bargain for safe workplaces 
and fair pay, and to be protected from discrimination and Wall Street 
  Unfortunately, Judge Gorsuch is simply not that nominee. His record 
is clear. He has ruled that corporations are people. I am not a lawyer, 
but I understand that it is a relatively recent concept in American 
jurisprudence to equate corporations with people. When you do that, you 
simply give corporations more rights than individuals have. When you 
come from that position, it means that judges repeatedly rule to choose 
corporations over workers; they choose polluters over communities; they 
choose Wall Street over consumer protections; they choose special 
interest money over our citizens. We have seen too much of that in this 
  We have seen a decline of the middle class, in part because the 
Federal judiciary is choosing corporations over

[[Page S2348]]

workers. If chosen, polluters over communities; if chosen, Wall Street 
over consumer protections; if chosen, special interest money over 
citizens--that is the Court we have seen in far too many 5-to-4 
decisions, as Senator Whitehouse has pointed out so effectively on this 
  The misguided idea that corporations are people is far outside the 
mainstream of what most Ohioans believe. It may work for graduates of 
Harvard and Yale Law School. Interestingly, if Judge Gorsuch is 
approved, all nine of the Supreme Court Justices will have attended 
Harvard or Yale Law School. I don't know what is wrong with Ohio State 
or the University of Toledo or Akron University or University of 
Cincinnati or Case Western or Michigan or Chicago or anywhere else. 
That is whom Presidents have chosen; those are the people we seem to 
  But this view that corporations are people simply doesn't wash with 
the American people. It is how we got rules that allow Wall Street 
banks and hedge funds to wreak havoc on ordinary working people and 
ordinary working families, with no consequences.
  Judge Gorsuch himself has argued against the rights of working 
Americans to band together to hold Wall Street and corporations 
accountable. He ruled against children with autism. He ruled against 
students with disabilities. We have a President in the White House who 
makes fun of disabled people. Now, we are going to put a Justice on the 
Court who rules against students with disabilities. We have a Secretary 
of Education who barely knew what IDEA was--the provision of the law 
that guarantees disabled students an education.
  Why we are moving in this direction, I think, amazes most people in 
this country, whether you have a disabled person in your family or not. 
His views of protecting students with disabilities are so outside the 
mainstream that last month, the Supreme Court unanimously rejected his 
  A boy with autism, Luke, wasn't making progress in school, and it was 
recommended that he be placed in a residential program. An impartial 
hearing officer and two different judges agreed. But Judge Gorsuch 
disagreed. He said that, as long as a student with a learning 
disability is making ``merely . . . more than de minimus'' progress in 
his or her education, the school district didn't have to do anything 
else. Think of that. That student, he counts a little bit, but he 
really doesn't count that much. He doesn't count as a full human being 
with full rights and full citizenship in this country.
  If your disabled child is getting more than nothing, I guess that is 
good enough, according to Judge Gorsuch. Luckily, this Supreme Court, 
as conservative as it usually is, overturned Judge Gorsuch's precedent 
that denied a real education to students like Luke. Again, they 
overturned him unanimously. Chief Justice Roberts noted that a student 
offered an educational program providing merely more than de minimus 
progress from year to year--this is Justice Roberts, a very 
conservative Chief Justice--can hardly be said to have been offered an 
education at all.
  In other words, what Judge Gorsuch thinks and thought about this case 
was that doing only a little bit for this student was meeting the 
obligation of this civilized society that we are proud of. Fortunately, 
the eight members of the Supreme Court--four Republican conservative 
nominees, four more moderate to liberal nominees from the Democrats--
unanimously came together and disagreed with Judge Gorsuch.
  But think about what can happen the next time. If an Ohio family has 
a child with a learning disability and struggles with that school 
system, they won't find sympathy from Justice Gorsuch. In fact, forget 
sympathy. They can't count on him to protect their child under the law.
  Take a look at the case of Alphonse Maddin, the truckdriver from 
Michigan. He was hauling meat through Illinois when he stopped to 
refuel. His brakes froze. He was stranded. He called for help, for a 
company repair unit. He waited for hours for help. He nearly froze to 
death. He couldn't feel his legs. It was 14-degrees below zero in the 
truck. He needed to get to shelter or risk losing his limbs or worse.
  But his company fired him. They claimed he abandoned his cargo. Mr. 
Maddin later returned to get the cargo and completed his job. But it 
just did not matter to the company. To the company, the cargo was more 
important than Mr. Maddin's life. To Judge Gorsuch, that company's 
interests were more important than Mr. Maddin, more important than his 
health, more important than his life.
  Imagine that. That is what we mean when we say he puts corporations 
ahead of workers. At the beginning, you remember I said there is this 
relatively new idea in American jurisprudence that corporations are 
individuals and people are corporations. When you say that, it means 
that you side with corporations over workers. You side with polluters 
over communities. You side with Wall Street over consumer protections. 
You side with big, dark money from billionaires in Citizens United over 
  Take a look at the case of a mother who had leukemia and had to take 
time off for treatment. After the treatment was over, her doctors 
advised her not to return to work quite yet. There was a flu epidemic. 
Her immune system was compromised from chemotherapy. But her employer 
told her she needed to show up within a week or they would fire her 
despite 15 years of dedicated service. Guess who Judge Gorsuch sided 
with? It was not the worker suffering from cancer, who had dedicated a 
decade and a half of her life to her employer and who wanted to return 
to work, but she simply was advised against it by her doctor.
  This woman's daughter, Katherine, said that when Judge Gorsuch issued 
his ruling, ``he didn't even think about the impact that this had on 
our family.'' She said his ruling ``set the precedent that a company's 
needs come before workers like her mother.''
  At a time when Americans work longer and harder than ever before, 
when we devalue work in this country, when workers' wages--for huge 
percentages of workers in this country--are stagnant, when people work 
longer and harder with less and less to show for it, the last thing we 
need to do is elevate someone who sees workers as nothing more than a 
cost to be minimized.
  That is what is at stake here. We are talking about putting someone 
on the Court who wants to give corporations special rights, but he has 
a record of ignoring the rights of ordinary citizens, choosing 
corporations over people, saying that corporations are, in fact, 
people. That means that he is almost always, in his cases, choosing 
corporations over workers, choosing polluters over communities.
  Judge Gorsuch's record makes clear that he would turn back the clock 
on a woman's right to make her own healthcare decisions, or LBGT 
rights, or clean air and clean water, or safe food and medicine.
  That is what is at stake here. If the Senate does not reject his 
nomination, the decisions Judge Gorsuch hands down will haunt our 
Nation for generations. My opposition to this nominee has nothing to do 
with what has occurred in the Senate over the past 8 years, as 
despicable as it has been. It has everything to do with what could 
happen over the next 100.
  This is about our children and our grandchildren. Seven of the eight 
current justices have met the 60-vote benchmark. In other words, seven 
of the eight justices on the Court right now were fairminded enough and 
centrist enough and agreeable enough that far more than 60 Senators--
people in both parties--came together to confirm those nominees.
  With so much at stake, it is up to Judge Gorsuch to earn the votes of 
60 Members of this body. I do not believe someone who fundamentally 
wants to give and has given corporations more rights than individual 
citizens has earned that broad support. The solution is not to change 
the rules; it is to change the nominee.
  That is what we mean by advice and consent. The American people need 
a Supreme Court Justice who looks out for the interests of all 
Americans, not just the 1 percent, not just the most powerful, not just 
the most privileged. That is why I oppose Judge Gorsuch's confirmation 
to the U.S. Supreme Court.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. PORTMAN. Mr. President, I spoke on the Neil Gorsuch nomination

[[Page S2349]]

last week, and I intend to speak on it again tomorrow. Let me just say 
that I support Neil Gorsuch as the nominee to the Supreme Court. He is 
a good man. He is a mainstream jurist, incredibly qualified. I am happy 
to strongly support him for the Court.

                            Opioid Epidemic

  Tonight, Mr. President, I want to talk about another issue, one that 
I hope can continue to bring us together here in this body and also 
bring our country together. I rise today to talk about what a lot of 
experts say is the worst drug crisis in the history of our great 
country--the worst. It is the opioid epidemic. This is the addiction to 
heroin, prescription drugs, synthetic heroins like fentanyl. The newest 
threat, this synthetic fentanyl, is coming into our communities from 
other countries, particularly China.
  There are laboratories in China where evil scientists are putting 
together these concoctions and sending them through the U.S. mail 
system into our communities.
  China is doing it on a scale that is devastating to our communities. 
As a result, I have urged President Trump to prioritize this issue in 
his meeting with President Xi in Florida later this week. China has 
banned one synthetic form of heroin, carfentanil, recently, but there 
is a lot more to do. I am urging President Trump to make it clear to 
President Xi that we will do everything we need to do to keep this 
poison out of our communities.
  This epidemic is affecting every single one of the States represented 
here in this body. I know the Presiding Officer knows that because I 
know he has been involved in his own State. It is affecting your home 
town, whoever you are and wherever you are in the United States. 
Unfortunately, it is affecting people you probably know.
  Every day we are now losing 144 Americans to drug overdoses, most of 
which are from overdoses of opioids. That is one American life lost 
every 12 minutes. That will be about the length of this speech. Look at 
your watch. In the next hour, five Americans will die of a drug 
  I have been working on this issue for a long time. I first got 
involved over 20 years ago when I was in the House of Representatives 
and a constituent came to me because her son had died of a combination 
of smoking dope and huffing gasoline. She came to me and said: What are 
you doing about it?
  I was ready. I talked to her about the fact that we had $15 billion 
devoted to interdicting drugs and incarcerating people and so on.
  She said: What are you doing to help me and my community? I have gone 
to my church. They are in denial. I have gone to the school, and they 
say it is not a problem here. I have gone to my neighbors, and they 
won't come together and talk about it.
  So we got involved in this issue, and I set up our own community 
coalition back in my home town of Cincinnati and chaired that for 9 
years. I am still very involved with that group, but I also got 
involved with legislation to try to do things to actually reduce the 
demand for drugs, because that is so important.
  Here we are again. The crisis we had then was mostly crack cocaine, 
marijuana. Then it was methamphetamines, bath salts. But I have never 
seen anything like this. This is the worst. If you don't think it is 
the worst drug crisis we have ever faced, then think about this. Look 
at this chart of drug overdose deaths in America.
  Drug overdoses are now the leading cause of accidental death--the 
leading cause--in my home State of Ohio, and probably in your State and 
in our country. This is from 2015, the most recent year for which we 
have complete data. Nearly two-thirds of the deaths were because of the 
prescription painkiller heroin-fentanyl issue, or synthetic forms of 
  Drug overdoses are not now just the leading cause of death. Overdoses 
kill more Americans than guns do. This next chart will show that, 
according to the Centers for Disease Control and Prevention, more 
Americans died from drug overdoses in 2015 than died from HIV/AIDS at 
the height of that epidemic. The peak of the AIDS epidemic was 1995. 
This is 2015 with regard to drug overdoses.
  According to an article in the New York Times, more than four times 
as many people are dying every day from this epidemic than were dying 
at the peak of the crack epidemic. In the last 3 years, more Americans 
have died of drug overdoses than died in the Vietnam war.
  Unfortunately, we have reasons to believe that this crisis is getting 
worse, not better. According to recent figures, fatal overdoses due to 
prescription painkillers, heroin, or synthetic heroin in 2016 alone 
went up 26 percent in Connecticut, 35 percent in Delaware, and 39 
percent in Maine. During the first three quarters of 2016, deaths from 
overdoses in Maryland increased 62 percent. In Ohio they increased 20 
percent the last 2 years in a row.
  So we have seen this huge spike here in deaths from overdoses, 
starting in about 2010 and going up. This is with regard to heroin. 
This is with regard to non-methadone synthetic opioids--in other words, 
fentanyl, carfentanil, U4, and other synthetic heroins.
  This is a crisis. It is one that, unfortunately, is affecting every 
single community--whether you are in an urban, suburban, or rural 
community, whether you are young or old, regardless of your walk in 

  The issue, of course, is much bigger than just the tragedy of 
overdose deaths. It is also about people whose lives have gotten off 
track because of these drugs and because of the addiction. There are 
200,000 people in Ohio alone who are living with an addiction to these 
drugs. By the way, if you are addicted, you are much more likely to be 
committing crimes, fraud, and theft to pay for that habit.
  In my State of Ohio--and I will bet in your State--the No. 1 cause of 
crime is opioids. A lot of these people have lost a job or can't get a 
job. I talked to some business folks over the weekend in Ohio who 
talked about regulations and taxes. They said: You know, this drug 
issue is affecting every single one of us. We can't get people to pass 
a drug test. We have employees who are now addicted to prescription 
drugs or heroin and their absenteeism and inability to come to work is 
affecting our economy.
  So this is something that is affecting all of us. Of course, many 
have broken relationships with their families and their loved ones. I 
cannot tell you the number of people who have told me, and I have 
probably met with 1,000 addicts or recovering addicts over the last few 
years. I can't tell you how many people have told me: Drugs became 
everything, and I pushed my family out, and pushed my friends out, and 
pushed my job away, and it left me in a situation where I was broken.
  But living without hope is something that we can deal with, because 
there are ways for us to get people into treatment and to get people 
into recovery to help them. We are in a crisis. Some have asked me: 
Well, how did we get here? That is usually a good start to this: How do 
we get out of it? How did we get here is complicated. But according to 
the Centers for Disease Control and Preventions, those who are addicted 
to prescription painkillers are 40 times more likely to be addicted to 
  Let me look at this a different way. Four out of five heroin addicts 
started with prescription drugs. So this issue of prescription drugs, 
overprescribing, is a huge part of how this happened in the first 
place. Increasingly, what we have seen in all of our States is 
addiction starting with these drugs and then switching to cheaper and 
more accessible heroin, and then switching again to sometimes more 
powerful forms of heroin like carfentanil, maybe 30 to 50 times more 
powerful than heroin. That is what is taking so many lives at such an 
alarming pace. The epidemic started with overprescribing. The United 
States uses more prescription pain killers than any other country in 
the world. It is not even close. Look at these numbers here. This is 
the daily opioid dose for over a million people. Look at the United 
States as compared to every other country in the world.
  This is using 2014 data, and the numbers may have gotten better 
because of the work being done to cut back on painkillers. But 
according to the American Society of Interventional Pain Physicians, we 
consume nearly 70 percent in this country--5 percent of the world's 
population and nearly 70 percent of the world's painkillers.
  In 2012, that number was 75 percent. It is still not even close on a 
per-person basis. For every American, there are 50

[[Page S2350]]

pain pills in this country, and second place is Canada with 30 pain 
  According to the National Institute on Drug Abuse, painkiller 
prescription sales nearly quadrupled from just 1999 to 2014. That 
number finally peaked in 2012, by the way, and since then has come down 
slightly. In 2012, there were more prescriptions for painkillers in 
Ohio than there were people in Ohio. There were more prescriptions for 
painkillers--not pills, prescriptions--than there were people in Ohio. 
By the way, that was also true in 11 other States.
  Fortunately in Ohio, we have made some progress under the leadership 
of Governor Kasich, Lieutenant Governor Taylor, Attorney General 
DeWine, and the State legislature. They have taken some important steps 
to cut back on painkiller prescriptions. We have cut them back by about 
one-fifth, about 20 percent since they peaked in 2012, but that number 
is still way too high. According to the Ohio Board of Pharmacy, 631 
million pain pills were prescribed to Ohioans last year. We are also 
still dealing with the consequences of a lot of the addictions that got 
started in 2011, 2010, or before.
  The number of prescriptions has risen, just as the addiction to 
opioids has risen. Drug cartels have followed this prescription drug 
epidemic, bringing in heroin. Those drug cartels flooded my State and 
probably a lot flooded a lot of your States with this cheaper, more 
accessible heroin, now synthetic heroin.
  According to the National Institute on Drug Abuse, Mexican heroin 
production alone increased sixfold in just 4 years--from eight metric 
tons in 2005 to 50 metric tons in 2009. That number is now 70 metric 
tons, and it just keeps rising.
  According to the Office of National Drug Control Policy, here in this 
country, Mexican opium poppy planting increased by 64 percent just from 
2014 to 2015. So it is getting worse, not better.
  According to the Congressional Research Service, virtually all of the 
heroin produced in Mexico is consumed here in the United States of 
  According to the Centers for Disease Control and Prevention, heroin 
use among young people has doubled in the last decade, among young 
people 18 to 25 years old.
  This affects all of us. It knows no ZIP Code. It certainly knows no 
walk of life.
  Since 2010, heroin overdose deaths have doubled among Hispanic 
Americans, African Americans, Native Americans, and Whites.
  A lot of the people who are addicted to prescription drugs have 
switched to heroin instead. Now we are seeing that heroin addicts are 
switching also, even if they don't know they are doing it. They are 
switching to fentanyl and carfentanil. Again, it could be up to 50 
times more powerful than heroin. Sometimes they don't know it because 
the traffickers are sprinkling the fentanyl in other drugs--heroin, of 
course, but also, we know now, cocaine. They are mixing it with 
marijuana, mixing it with other drugs, and not letting people know.
  We had a 14-year-old girl recently die in Dayton, OH. She was with 
her friends, snorting what she was told was heroin. She had done it 
before. But this was fentanyl, and it killed her instantly.
  More than 1,000 Ohioans were killed by fentanyl in 2015--more than 
double the previous year and more than 10 times the number in 2013. In 
Cleveland, for example, there have been more overdoses from fentanyl in 
the past 10 months than there had been in the past 10 years. In 
Columbus, there have already been half as many fentanyl overdoses in 
the first 3 months of this year as there were all of last year. This is 
why I say fentanyl is the new risk, the new danger.
  As one father who lost his son to an overdose told me: Every time you 
engage in taking drugs, you are playing Russian roulette because you 
don't know what is in it.
  In my hometown of Cincinnati, fentanyl deaths now surpass heroin 
deaths. Drug overdose deaths in Cincinnati increased by 40 percent from 
2014 to 2015. Over that same timeframe, in just 1 year, heroin 
overdoses increased 12 percent, while fentanyl overdose deaths 
increased 153 percent. These numbers are very disturbing. They are 
discouraging, too, because it seems like we just can't turn the tide. 
It is easy to feel as though we just can't do anything, that we are 
paralyzed, but there is actually a lot we can do to help, and we can 
and should.
  Here in the Senate, we have already taken some very important steps 
in the last year. About 9 months ago, we passed legislation called the 
Comprehensive Addiction and Recovery Act, CARA. Last year, we passed 
the 21st Century Cures Act. Those two together provide much more 
funding for this issue. The Cures Act alone is $500 million more this 
year going back to the States to provide funding primarily for 
treatment for this increase in overdose deaths. There will be $500 
million authorized again next year. We have to be sure that gets into 
the appropriations bill.
  We also have seen, I think much more importantly in a way, through 
the Comprehensive Addiction and Recovery Act--separate legislation--
that we are beginning to fund directly programs that work. We spent 3 
years looking around the country and had five conferences here in 
Washington, DC. We brought experts in from all over the country who 
told us what the best practices were. What is the best prevention 
technique that is working? How do we get kids not to make these 
decisions? What is the best thing that is happening in terms of 
treatment, and then longer term recovery, what works and what doesn't 
work. Is medication-assisted treatment better? Is it better? Does it 
rely more on longer term recovery? Have they had more success there?
  All of this has led us to put together this legislation, the 
Comprehensive Addiction and Recovery Act, that actually funds programs 
like drug courts that are working around the country. They take people, 
diverting them from prison, and say: As long as you stay clean, you can 
stay out of jail, because you are a user, you are not a pusher. But you 
have to stay clean.
  Then they provide them alternatives, including using drugs that 
reduce the cravings. If you reduce the craving for opioids, that is 
proving to be very, very successful in some cases. Dimitrol is the drug 
they use mostly in Ohio to do that. There are some great examples of 
people who have gone through the drug court process who have now been 
clean for a few years. They are back to work. They are back with their 
families. They are back as contributing members of society. So there is 
hope. We have seen how it can work.
  CARA is the first legislation Congress ever passed to promote long-
term recovery. Why? Because we have looked around the country and had 
experts here. We figured out that the treatment programs are important, 
and before that, the detox program is important. But what is leading to 
more success is longer term recovery programs.
  As an example, think about being in detox for a week and then maybe a 
couple weeks in a treatment program and then going into a sober housing 
arrangement where you have regular meetings, where you are getting 
support from fellow recovering addicts. That seems to work longer. You 
are there. It seems to work better for most Americans.
  Unfortunately, we do not have all of CARA's legislation fully 
implemented yet. Only three of its eight programs have been 
implemented. It has been a while. It has been about 9 months. It is 
time to push all of those programs.
  I pushed the Obama administration on this. I am now pushing the Trump 
administration. Last week, I was delighted that the Trump 
administration announced the creation of a commission on the opioid 
epidemic, led by New Jersey Governor Chris Christie, who has a real 
passion for this issue. I commend the President and Governor Christie 
for their commitment to making progress on the issue. Their leadership 
and their partnership with Congress will make a difference.
  Today I talked to General Kelly, the new Secretary of Homeland 
Security. He is going to be on the commission. He said they are going 
to report about the problem within 90 days. We know a lot about the 
problem. We also have to be sure we are seeing some action.
  What I would suggest today is that the administration work hard to 
implement the remaining five CARA grant programs that are not yet up 
and running. For example, it has been 8 months, almost 9 months, since 

[[Page S2351]]

was signed into law. Yet we still don't have the grant for naloxone up 
and running. Our States and local communities need this Narcan on the 
street to save people's lives, because this is a miracle drug that 
reverses the effects of an overdose, but we also need to get more 
training for some of our first responders so they can administer it 
more effectively, which is particularly more important right now with 
this new drug, the fentanyl, the synthetic drug coming in, because 
synthetic heroin requires sometimes not one, not two but four or five 
uses of Narcan--maybe more--to save someone's life. So our first 
responders are asking for this help.
  We still don't have the grant for medication-assisted treatment up 
and running. We still don't have the grant for pregnant and postpartum 
women's treatment providers up and running. This will help to ensure we 
have fewer babies who are born with this addiction. Let's get going on 
  For all of us here in Congress, let's be sure that we fully fund 
CARA. It is $182 million a year, every year, in addition to what we 
were spending on opioids. We need to be sure that funding is there, 
that these programs are working, and that our communities begin to get 
more of the help they need. These evidence-based programs that work are 
what we ought to be supporting, and that is exactly what the 
legislation does.
  I thank Vice President Pence, who was in Ohio on Saturday. It was a 
meeting about the economic issues we faced as a country. He talked 
about tax reform and regulations and skills training, but he also 
talked about this issue. I think it is important that we are all 
talking about this issue back home and raising awareness hopefully to 
save lives, to keep people from going down this path but also to ensure 
that our fellow citizens know the importance of Congress and State 
legislatures and local communities getting engaged with it all. 
Everyone must get involved.

  I was in Youngstown, OH, on Friday, and I held a roundtable at the 
Neil Kennedy Recovery Center. This is one of the first programs of its 
kind in the country. It started in the late 1940s. It focused more at 
that time on alcoholism. Executive Director Carolyn Givens was there 
with her staff. They are incredibly compassionate people. She told me a 
lot of stories.
  I was able to meet with some of the recovering addicts at the center. 
One told me his name was Michael. He told me that center saved his 
life. It saved his life. This is a guy who worked for years at utility 
companies. He is a skilled worker. He got involved with prescription 
drugs because of an accident or an injury, and then he ended up moving 
to heroin, which was cheaper and more accessible. Then he found his 
life spinning out of control. Now he is there, and he is getting back 
on track.
  Everybody, by the way, at the roundtable who was there--the staff and 
community leaders who were involved--they all said: Get this 
legislation implemented. We need it.
  On Friday afternoon, I went to Cleveland and toured the St. Vincent 
Charity Medical Center with addiction specialist Dr. Ted Parren. What 
an amazing guy he is. This is in a hospital setting where they have a 
detox unit and a treatment center, which is very unusual. I think it is 
the only one of its kind in Cleveland, and it is one of a few in the 
country where, within a hospital setting, these people are getting 
everything they need. It is a very comprehensive approach. They deal 
with mental health issues, of course, but also other physical issues 
people have, and it is helpful to have it all together there at that 
center. I thank the sisters for what they are doing because they are 
supporting this, and sometimes it is quite expensive to have a 
treatment program. At St. Vincent's, they are doing an awesome job.
  Everyone there told me the same thing that I hear across Ohio--that 
their services have, unfortunately, never been in greater demand. They 
have a waiting list. They say the situation is getting worse, not 
better. I think that is true in your State, too, because according to 
the Substance Abuse and Mental Health Administration, SAMHSA, 9 out of 
10 of the 22 million Americans who are suffering from addiction are not 
getting the treatment they need--9 out of 10. CARA and the Cures Act 
will help change that.
  People need to change that in their own hearts. They need to step 
forward and seek the treatment they need. We need to take away the 
stigma of addiction because it is an illness. We need to treat it as an 
illness because that would help people come forward, admit they have a 
problem, and get the treatment they need. Their families and their 
communities are desperate for that to happen. CARA and Cures will help 
change all that.
  I applaud my colleagues here, Republican and Democrat alike, for 
moving forward on this legislation over the last year, but there is a 
lot more work to do. We should continue to address the underlying issue 
of overprescribing. It started this epidemic in the first place. We 
talked about the number of prescriptions that are still out there.
  Last week, I joined with my colleague Senator Amy Klobuchar to 
introduce bipartisan legislation called the Prescription Drug 
Monitoring Act to keep better track of prescription painkillers, keep 
them out of the wrong hands, and identify an addiction as early as 
possible so that it can be treated.
  This goes to the pharmacist. You will have to report when someone 
gets a pain pill prescription. They have to put it on the Prescription 
Drug Monitoring Program.
  It goes to doctors. They have to be sure that when they are 
prescribing medication, that that is part of the drug monitoring 
program. They have to access the drug monitoring program before they 
give a prescription to be sure the person isn't filling the 
prescription with them that they have already filled somewhere else. 
Unfortunately, there is a lot of that abuse still out there. Sometimes 
it is across State lines, which is why Federal legislation is required. 
Our legislation requires that States work better together to ensure 
that the Prescription Drug Monitoring Programs are talking to each 
  By the way, if people don't do this under our legislation--the 
pharmacists, the doctors, and the States--then they have their Federal 
funding pulled back that we talked about earlier on the CARA 
  If you see a sign of addiction starting, our legislation requires 
that you let the patient's doctor know that so we can begin to identify 
the people who have an addiction and get them the treatment they need.
  I think this is going to be a good bill because it will lead to a 
smarter and more effective use of taxpayer dollars, and more 
importantly, of course, it is going to prevent a lot of new addictions 
from starting in the first place. That, of course, would save lives.
  Congress can also do something else that is really important, and 
that is to give law enforcement better tools to be able to keep some of 
this poison out of our communities. So the prevention and the treatment 
and the recovery and Narcan for our first responders--they are all very 
important, but let's also keep some of this out. Let's do a better job 
of stopping the heroin at the southern border. Let's do a better job of 
stopping the fentanyl, which is this new synthetic heroin we are 
talking about that is causing so many overdoses and deaths. Let's do a 
better job of keeping that out.
  This should be a no-brainer, in my view, because it is coming in 
through the U.S. mail system. We know this. All the studies show this. 
Most of these synthetic drugs are being made in labs in China, and they 
are shipped by mail to traffickers in the United States, sometimes to 
Mexico as well. Typically that is done through the Postal Service. Why? 
Because the private carriers like UPS or FedEx or DHL and others 
require, when you ship something, that you have advance information 
provided to the Customs and Border Protection and to others as to where 
the package is from, what is in it, where it is going. The post office 
doesn't require that. Is it any wonder that traffickers are using the 
Postal Service rather than one of these private carriers?

  Law enforcement came to us and told us that they could use this 
data--it is electronic data provided up front--because that would 
enable them to determine the suspect packages. Of the millions of 
packages that come into our country, they have to know how to find that 
needle in the haystack. That is why they want the ability to find these

[[Page S2352]]

packages, to scan these packages, and to be able to stop some of this 
poison that is coming into our communities.
  The legislation we have with regard to this issue is called the STOP 
Act. I recently introduced it again this year with Senator Klobuchar, 
Senator Rubio, Senator Hassan, and many others here in the Chamber. It 
is a bipartisan bill, called the Synthetic Trafficking and Overdose 
Prevention Act, or the STOP Act. It closes this loophole we talked 
about within the Postal Service and requires the post office to obtain 
advanced electronic data on packages before they cross our borders, 
just like the private carriers have to do.
  It is not a new idea, by the way. In 2002, Congress placed this 
requirement on private carriers. That is when it started. It also 
required that the post office review this and look into this. So, in 
2002, this Congress was smart enough to say: This seems to make sense. 
Let's require the post office to look into it. We have seen the 
results. The results are that traffickers stay away from the private 
carriers because they know they can use the Postal Service and get away 
with it.
  Traffickers are lacing the heroin on the streets of America with 
these synthetic drugs to make them stronger and more addictive. They 
are getting more people addicted. Fentanyl is also so powerful that it 
only takes a couple of milligrams--the equivalent of a pinch of salt--
to kill you. They say that three flakes can kill you. The fact that 
heroin is now being laced with fentanyl, of course, makes it much more 
likely for you not only to have an overdose, because of the strength of 
this synthetic heroin, but also that you will die from that overdose. 
Again, it is much harder to use Narcan and to begin to save lives by 
using that and to reverse the effects of the overdose.
  So the STOP Act, to me, again, is something that we definitely ought 
to do in this Chamber. It would restrict the supply of these dangerous 
drugs, raise the prices of these drugs, and would make them harder to 
get. That is going to save lives.
  Support for the STOP Act is growing. Our bill has now been endorsed 
by the Fraternal Order of Police and by the Major County Sheriffs of 
America. They are convinced that this tool will work. Last Friday, I 
was in Columbus, OH. I met with Franklin County deputy sheriff Rick 
Minerd, also the deputy chief of the Columbus Police, Mike Woods. We 
had the Cincinnati and Columbus directors of the Customs and Border 
Patrol--the chiefs--there to talk about it, and we had the Drug 
Enforcement Agency's special agents in charge there with us. We also 
had people who were on the investigative side of the Customs and Border 
Patrol. The deputy attorney general of Ohio was there, Steve Schumaker, 
and others. All of these law enforcement people said: Give us this 
legislation. It is a tool that we need.
  We had a hearing today on the Homeland Security and Governmental 
Affairs Committee, and General Kelly was there. He is the new Secretary 
of Homeland Security. He agreed with me that the STOP Act would ``help 
[Customs] officers target illegal shipments . . . reduce the ability 
for the post office to be used for the illicit shopping of all kinds of 
contraband . . . [and] be helpful to be able to identify packages'' of 
synthetic drugs. He is right. We need the administration's help and 
push for this legislation as well. Let's get this done.
  President Trump, by the way, endorsed this idea last year when he 
said during the campaign:

       We will close the shipping loopholes to China that others 
     are exploiting to send dangerous drugs across our borders and 
     into the hands of our own Postal Service. These traffickers 
     use loopholes in the Postal Service to mail fentanyl and 
     other drugs to users and dealers in the United States. [The] 
     Trump administration will crack down on this abuse and give 
     law enforcement the tools they need to accomplish this 

  Let's get it done.
  Again, I have asked President Trump to raise this issue with 
President Xi Jinping because China can do a lot more to try to shut 
down these laboratories in China, to try to stop some of the materials 
that are coming into the laboratories that make up this fentanyl. By 
the way, it is in China's interest to do so.
  I have received information recently that there is leakage. What does 
that mean? That means that some of this fentanyl is going out to the 
countryside, to the suburbs of China, and to the cities of China, and 
it is affecting their population.
  This legislation already has a companion bill in the House. So this 
is not an issue in which the Senate can act and then we cannot get it 
through the process because we cannot get it through the House and the 
Senate. Pat Tiberi and Richard Neal have introduced companion 
legislation--Tiberi, a Republican from Ohio, and Neal, a Democrat from 
Massachusetts. It is bipartisan. It is the kind of legislation that 
should draw bipartisan support, and we should get it done.
  Is it a silver bullet? No, we do not have a silver bullet. There is 
not one silver bullet. There is a comprehensive approach here, and 
these two bills that I have talked about are new steps that we should 
  I urge my colleagues to continue to support the CARA legislation. 
Let's provide full funding. Let's support the Cures legislation in the 
upcoming appropriations process. Let's continue to engage the good 
folks back home who are trying, at the tip of the spear, to do all that 
they can in terms of providing better treatment opportunities and 
longer term recoveries and who are going into our schools and talking 
about prevention so as to do all we can to keep people from going into 
that funnel of addiction.
  Let's pass this legislation. Join us in keeping better track of 
painkiller prescriptions so that potentially addictive drugs do not end 
up in the wrong hands and so that addictions get treated early. That 
legislation is important.
  Join me and join the 10 other Senators in pushing back against 
poisonous synthetic heroin, which is coming into our communities, by 
supporting the STOP Act as a cosponsor so that we can get this bill to 
the floor and get it to the President for his signature.
  I believe these two pieces of legislation, if allowed on the floor, 
will pass overwhelmingly. I believe the President would sign them. Most 
importantly, I believe they would begin to save lives in the 
communities we all represent.
  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. DAINES. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.