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tv   U.S. Senate Set for Showdown Over Filibuster Rules Changes as Gorsuch...  CSPAN  April 5, 2017 4:00pm-6:01pm EDT

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but pt people who know him best, the people out in colorado, republicans, democrats, they believe he is well qualified and should be confirmed, that he deserves an up-or-down vote. people like democratic governor bill ritter. he believes that judge gorsuch should have an up-or-down vote and be confirmed. and again, this is apparently some people find judge gorsuch so unreasonable or so unfit to serve on the high court, they might find it hard to believe that in 2008 -- the 2008 cochair of the democratic national convention is supporting judge gorsuch's confirmation. jim lyons, close friend, attorney of president bill clinton, supports the confirmation of judge gorsuch. they know his record. they've reviewed the cases that the opposition has stated that they find so egregious.
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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? because we knee because judge -- weigh mow that because judge gorsuch's credentials, his academic background, his history, his temperament, his qualifications, his ratings show that he is more than able to serve and deserves to serve on the supreme court. but there is certainly a difference of philosophies that has been presented here, a difference of philosophies that some people believe that a judge shouldn't just be a judge who follows the law or who rules and makes a decision based on where the law takes them but people who believe that a judge somehow has to be maybe a focus group of
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opinion or policy preferences, that a judge should be somebody who puts their thumb on the scale of justice to reach an outcome that's preferred by a political party. that's not what our founders had in mind when they wrote the constitution. that's not what justice is about. judge gorsuch believes that you take an opinion -- you take a decision where the law takes you, where the law leads you, guardian of the constitution. he understands the separation of powers. but apparently that's not good enough for some. they want and activist judge, but i hope that -- i hope that over the next several hours, the next few days that our colleagues will come to realize those who know him best believe that he is qualified, that deservedeserves an up-or-down v. that a judge who votes 99% of the time in the majority agrees with them. mr. president, i thank you for your time today and look forward to our conversations as we confirm judge gorsuch at the end
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of this we believe. a senator: mr. president? the presiding officer: the senator from rhode island. mr. reed: thank you mr. president, very much. 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 one of those moments. the next supreme court justice will break the 4-4 deadlock that has constrained the court since the passing of judge scalia and this body's unprecedented refusal to act on chief justice merrick garland's nomination to fill that vacancy during president obama's second term. before discussion the pending nominee's merits, we must consider this nomination in its historical context. chief justice garland was arguably one of the most qualified nominees to the supreme court in generations.
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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 in 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, frankly, was disgraceful. rejecting the treatment of chief judge garland, i met with judge neil gorsuch and shared a thoughtful conversation. i find 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 inconsistence and ideological rigid did i. nothing of 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'm deeply concerned that granting him a lifetime aat the same time to be a final -- that
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granting him a lifetime appointment to be a final decision, would tip the power to the powerful at the expense of the working people and the powerless. therefore, not support his nomination to be 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 many to the streak of 5-4 decisions of the roberts court that was 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 off 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 during my time in this body. it is not enough for a nominee to display intellectual gifts it or to possess a textbook understanding of american history and jurisprudence.
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judicial decision making at the supreme court is not an assembly line or mechanical aapplication of the law will resolve. 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 holland fiske stone laid the foundation for this model of judiciary review. he wrote that judges must enforce the specific text of the constitution, but he went further urging judges to apply stricter scrutiny he to the laws that impede the effective operation of government and channels of participation. judges should likewise demand the most compelling justification for laws that single out powerless, discrete and insulate minorities. these lay the groundwork for modern constitutional law as we have understood it since the
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warren court. these are the decisions that struck down race and gender segregation, proclaimed the rule of one person, one vote,en shrined 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 various names: textualism, strict contextualism and so forth. it is an ideological prism to
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disguise discretion, expand the law without benefits to benefit powerful majority groups and restrict the law for 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 5-4 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 5-4 to give for-profit corporations religious rights to opt out of providing
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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 unemployment discrimination. and in citizens units, 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 corporate political expenditures, and we are only now being able 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.
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judge gorsuch's record strongly i.g.s that he would contribute -- suggests that he would contribute to the pro--corporate yearnsation of the court. the very same business groups who spent $7 million in dark money, anonymous 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 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, then establish precedentprecedents that will ge future decisions. the opinion-writing process is not intended to be an arena for judges to pursue self-sesqui or ideological ends. that is why i am deeply concerned about judge gorsuch's clear willingness on the tenth circuit to go beyond precedent and the facts of the case before
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him to advance arguments designed to bend law to his ideology. in riddle v. hicker looper, 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 is 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 farthest for unprecedent when doing so would protect agencies. in confirmation process has introduced many to a relatively obscure doctrine of law called chevron deference. the chevron case stands for the essentially uncontested
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proposition that when someone sues a federal agency, 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 judge -- justice scalia acknowledged the sound reasoning behind the chevron case. judge gorsuch would seemingly return us to the old days when powerful companies can pollute the environment, scam their cuss mess and discriminate against their employees as long as they could pay enough lawyers to get the right judge on the federal
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agency. 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 being dids of chevron -- decades of chevron precedent should be overturned. again, it is highly u. unusual after you've written pentagon majority opinion deciding the case that you would then step assigned write sort of a separate epistle advancing your ideas. he wrote in language in this concurrence that is familiar with those of us in the political branch of government but out of the ordinary for a federal judge. he compared federal agencies to a tyrannical king and a behemoth and laid out his constitutional theory for challenging chevron on 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
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his willingness to break with press -- press denied and contort the law to benefit the powerful and preferred interests. my colleagues on the judiciary committee spent a great deal of time and effort questioning judge gorsuch in trying to illicit responses about his basic judicial philosophy. unfortunately, his answer answee largely nonresponsive and failed to address many of our concerns about his record. judge gorsuch's record of writing shows that he believes judges should always interpret the constitution and other laws from the perspective of those who first drafted the laws, regardless of how the world looks today. the founding fathers, however, did not leave us a blueprint to answer every new question of law, nor did the delegates to the constitution convention demand that all future judges be originalists. the laws and values of 1789 would shock and alienate, as
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they should, many americans today, particularly women and racial and other minority groups. worse yet, a judge attempting to resolve a case this aas if it were the 18th, 19th and even 20th century may unwittingly use that to interject into the case the judge's own view of how the government ought to worth the hobby lobby is ideological inconsistency at work to the detriment of americans. the case ceshed 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 contraception to over in this case 23,000 employees on grounds 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 governments shall not
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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 the claim of a religious right to consume the drug on grounds that the constitution permits some burdens on rling religion e aim of the law is secular and generally applicable. when congress debated rfra in 1993, the house and senate report show explicitly that congress' aim was only to overturn the smith court's decision in smith and require courts considering rfra cases to look to free -- prior to smith for guidance. those are the quotes from the court. no supreme court prior to this time had ever granted a corporation religious rights and nothing in rfra's legislative
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history suggested congress' 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 an employee's own consciences an. he relied on an 1871 law which provided that in certain circumstances, congress' use of the term person could also mean businesses unless the context indicates otherwise. this reference to context meant judge gorsuch had to discredit -- the 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
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law in untold circumstances. and let's just explore for a moment judge gorsuch's belief that judges should always give meaning to the original intent of the law's draftsman. in this case what is a corporation? how does it operate? in 1787 there were roughly six nonbank corporations in america and their powers were restricted in the wake of colonialist experience with the practice of the crown and royal english corporations. around the time that the congress passed the act, corporations were harshly regulated by law to achieve 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 enactivity that was not -- enactivity that was not explicitly enumerated in their corporate charters and a real
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person to sue to render a corporation's action illegal if it were not expressly in furtherance of the corporate business' mission. the idea that a corporation in this context could have and exercise fundamental religious rights much less that its religion should excuse it for applying dually enacted laws would have been outrageous for the framers and the congress. judge gorsuch should have known the historical nature of his decisions. we have yet to see the full scope of consequences of the division of a near unlimited right of corporation to opt out of our laws, but we can imagine the harmful choices and further difficult litigation on this point that may lie ahead. i have for one 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
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process. for as much as judge gorsuch's record shows he's willing to entertain new or arcane legal theories to reach a better outcome for corporations and the powerful, it is also clear he will go to no such lengths to vindicate the rights of minority, the disabled or workers. one example highlighted during judge gorsuch's confirmation hearing is his records on lawsuits over 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 the special individual needs. in the it thousand 8 case -- 2008 case popularly referred to as the luke p. case, judge gorsuch ruled against an autistic child who sought reimbursement for a specialized school because their son was not making appropriate progress in the public school. in denying the parents relief, judge gorsuch reinterpreted the idea to require that public schools need only provide de
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minimus 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 precedence for future cases that effect i'll advice rated 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 justices did not mince words when it came to judge gorsuch's lower bar for schools. he said that june gorsuch's model would -- judge gorsuch's model would hardly provide an education at all for children with disabilities and, quote, receiving instruction aimed so low would be taunt mount to sitting idly awaiting the time when they were old enough to drop out, closed quote.
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this rebuke of his view of the law in the middle of his confirmation hearing was yet another reminder that this nominee is outside of the judicial mainstream. but judge gorsuch is not just restricted to the reading of the law in the educational context. in transient trucking v. the review board, a majority of the tenth circuit eowe a truck driver was wrongfully fired 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 life-saving help rather than freezing to death. again and again judge gorsuch's record shows he's very capable
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but either unable or unwilling 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 right, because we know majority rule sometimes gets it wrong, particularly when it comes to the rights of the minority. that is what makes the qualifications for the supreme court fundamentally different from any other state or federal 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, it 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
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the values and willingness to be the last resort for the powerless when the system fails. it must be able to make unpopular decisions and side against majority. they must be be able to reject the president when the established way of doing things no longer state of guards the fundamental protections of which every american is entitled. they must do this for the least and the most 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 the nomination with seriousness and a sense of responsibility. a thoughtful reading of his work as an advocate and judge, however, reveal that he has a consistent predisposition to favor corporations and the powerful over human beings and the powerless. to be sure there's nothing inherently wrong when a corps or a landlord or an employer or a president of the united states
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wins a case in the 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 the 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 urge my colleagues to do the same. and with that, mr. president, i would yield the floor. a senator: mr. president? the presiding officer: the senator from new mexico. a senator: thank you, mr. president. thank you for the recognition. we have many important
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responsibilities as u.s. senators. mr. udall: we often have to make very difficult decisions and deciding to vote against cloture and confirmation for judge gorsuch has been a tough decision. since coming to the senate, i've 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 u.s. senators, especially for nominees to our nation's highest court. and i believe with holding -- 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.
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that was the group of 14 senators who forged a compromise in 2005. three of them are still in the united states 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 and i quote here. 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. end quote. i think that's a good standard. to only filibuster a nominee under extraordinary circumstances. unfortunately, in my evaluation of judge gorsuch's nomination to
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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 one year at that point to serve in his term. and 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, quote, probably won't do that because this appointment is about the election, end quote. but president obama did do it.
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judge garland is not just a fine jurist. he's 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. he even got -- and he never got a vote which was a disgrace. and 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've been very open that i believe the senate has become dysfunctional, but what the majority did last year was
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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, and i quote in full, quote, 1 of my proudest moments was when i told obama, you will not fill the supreme court vacancy, end quote. that is a violation of the u.s. constitution's requirement that the senate provide advice and consent, and 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
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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, put bipartisanship and fairness first, and put aside the bitter partisan fighting that has divided the congress and our nation. mr. president, there's also a pragmatic reason for president trump to appoint judge garland to the next seat. president trump needs to ask himself, does he want 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 it is not his vacancy to fill?
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that's the absurd standard that leader mcconnell has established. if the republican majority is dead set on changings 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 rules that president trump only gets 3 years a point justices. we could do this with a simple standing order. if the majority leader believed president obama should only have 3 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's fair is pavemen fair.
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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 is 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 would also ask unanimous consent to include the text of my standing order in the record at the end of my remarks. the presiding officer: without objection. mr. udall: thank you, mr. president. unfortunately, judge garland's unacceptable treatment isn't the only concern that guides my decision to vote against judge
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gorsuch. like many things with 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 the transition. and, most critically, that the f.b.i. and department of justice are investigating whether the president and his associates coordinated or conspired with the russian government to interfere with the presidential election.
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and an investigation that began last july is likely to continue for months. if the president or his close advisors 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's 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 daysing a -- 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
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influence on the election are reasons enough to vote against judge gorsuch. but there's 1 more critical issue: the nominee himself. i have met with judge gorsuch. i have 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. it's 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 are critical for me. his position on the rights of working mothers, whether women
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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 he tailed to convince me -- 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 and freedom of speech and religion. the f.b.i. is investigating his campaign, and he faces scrutiny about whether his company is benefiting from his office. all of these issues could well become in front of and before the supreme court. it's more important now than ever before that we have are a neutral, clear-minded justice sit on the bench. after carefully considering all these issues, i cannot support
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judge gorsuch's confirmation. it is not an easy decision, but i believe it is the right 1 for our country. with that, i yield the floor, mr. president. mr. peters: mr. president? the presiding officer: the senator? michigan. mr. peters: thank you, 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 3 coequal branches of government. each branch is intended to serve as a check on the other 2. this leaves our courts as the last line of defense against an administration that is committed to expanding of the already vast
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power provided to the executive. we have seen this play out over the last two months, as president trump has twice rolled out an unconstitutional travel ban to have federal courts -- and had federal courts stop its implementation. the president's reaction was telling. he lashed out at the, quote, so-called judge and urged his twitter followers to blame not only the judge who stayed the travel ban but the entire federal court system should an attack occur. judge gorsuch wants us to know that he found these attacks on the judiciary, and i quote, disheartening. he told me as much when we met in my office. he made a point in using the same language in meetings with a number of my colleagues. personally, i would say that these attacks on the judicial branch are much more than
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disheartening. they are appalling, and i would say that they are dangerous to our democratic republic. judge gorsuch is, by all accounts, and in my personal opinion, a good man. but as i have reviewed judge gorsuch's record and previous rulings are i have to say that i find them disheartening. i find it disheartening that he regularly sided against everyday american rights, including women's reproductive rights, workers' rights and civil rights. i find it disheartening that instead of allowing women access to basic health care, judge gorsuch authored a concurring decision that argued that corporations have the religious beliefs. 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
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corporation at church. corporations do not have religious beliefs. to say otherwise defies common sense. judge gorsuch's ruling and subsequent supreme court decision in burwell v burwell vy lobby stores a dangerous step backwards for women's health. this ruling puts corporations before people and could leave women in michigan and across the country without access to essential health care services. this decision is a step backwards for women, and it is instead a step forward for the growing power that corporations have in this country. courts not only serve as a check against powerful executive branch, they are supposed to put individuals on a level playing field against large, powerful corporations. and i am disheartened that judge gorsuch was the only tenth circuit judge to rule against a
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detroit truck driver who was unfairly fired for not staying in his disabled trailer while after waiting hours in dangerously cold western. in a 2-1 decision in trans am trucking v. d.o.l., judge gorsuch ruled that trans am trucking was in the right when they fired alphonse maddin for - for walking away from his disabled semi-instead of risking death by hyper thermia. i am also disheartened by his ruling for disabled students. in the douglas county school district, judge gorsuch ruled that schools only need to provide meager accommodations to satisfy the individuals with disabilities in education act. during judge gorsuch's confirmation hearing, the supreme court handed down a decision that ruled against his
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position unanimously, even the most conservative judges on the court overruled him. chief justice john roberts wrote powerfully, and i quote, 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 health care or a truck driver who simply wants to make it home safely at the end of his shift, i am disheartened by judge gorsuch' often fails to take into account the human face behind each case. the 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
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than individuals. and it is millions are spent by the corporate elite to support 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. mr. president, 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 can't 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. and they would tell you that all children deserve a chance at a quality education.
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mr. president, 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. mao more than ever, we need the supreme court to be our nation's north star, not a weather vane that responds to rapidly shifting political winds. serving on the supreme court requires more than an education, and more than a pleasant demeanor. a supreme court 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 the mainstream michigan values and i
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urge my colleagues to join me in opposing his nomination. mr. nelson: would the senator yield? mr. peters: i will yield. mr. nelson: i want to thank the senator for yielding. this senator wants to state i will vote no on the motion for cloture and no on the confirmation and i ask consent that i be -- insert a statement in the record. the presiding officer: without objection. mr. nelson: thank you. mr. peters: i yield the floor. a senator: mr. president? the presiding officer: the senator from maryland. mr. van hollen: thank you, mr. president. i rise to speak about one of the most important responsibilities we have here in the united states senate, considering the president's nominee to the supreme court. it's a vote with consequences that will far outlast this presidential administration. it's a vote with implications that will outlast all of our time here in the senate.
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it will certainly be one of the most consequential decisions each of us makes. that's because any one of the nine individuals named to the supreme court with the lifetime appointment can change the course of our nation. in just the past few years, we've seen that. we witnessed a series of 5-4 decisions that changed the trajectory of our society. decisions that gutted section 5 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 voters. the 5-4 citizens united decision that overturned the law of the land and lots of supreme court precedent in order to empower corporations to spend unlimited sums of money in support of candidates for public office,
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corroding the fabric of our democracy. 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. decisions 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. mr. president, the decision of a single supreme court justice can indeed change the trajectory, 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's true. i have one question for them.
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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, mr. president, one of the most qualified and mainstream nominees in our history languished without even a hearing. many senators refused even for 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
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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 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's 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
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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, quote, betrayed the department of justice. he went on to say that if any future harm occurs, it's the fault of the courts and called them obstructionists for not bending to his will. they're 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 seen as an impartial administrator of justice, someone who does not have a set political ideology. unfortunately, mr. president, 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
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consistently time and again sides with powerful corporate interests against the rights of workers, consumers and individuals. when he had an opportunity during the hearing to explain that bias, he chose instead to evade the questions and answer with platitudes, not substance. while he's 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 pocket their rights. -- to protect their rights. in one opinion judge gorsuch was the only judge who thought that transam trucking company was right whether they fired a driver whose only offense was finding safety when the heat in his truck broke down in subzero temperatures, and he gaen to show signs -- began to show signs of her therm ya. the driver -- hypothermia. the driver said he could not feel his lower body and his fingers became numb and experienced slurred speech while
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waiting hours for his company. judge gorsuch was the only judge who thought federal regulations protected the trucking company and not the truck driver trying to avoid freezing to death. it makes me doubt that judge gorsuch considers the real world consequences of his ruling. judge gorsuch also sided against working people and defended powerful corporations in his opinion in hobby lobby. there 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 working americans. he was the architect of an opinion that severely limited a woman's access to basic reproductive health care. in yet another ruling judge gorsuch prevented an autistic child, an autistic child, mr. president, from getting a proper public school education. his opinion on the individuals
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with disabilities education act severely limited the options for parents of children with disabilities and the quality of public school education in their reach. 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 8-0. 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, quote, for children with disabilities receiving instruction that aims so low would be tauntamoumt to sitting idly waiting for the time they are old enough to drop out. that's what the court said. fortunately for children with disabilities and their families
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and 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 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's much more in line of 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, mr. president, judge gorsuch is not in the main scream. 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 reproductive choice and someone
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who would have the support of n. rnchtsz a. -- n.r.a. he then subcontracted the nomination out to rieng wing conservative groups like the heritage foundation and the federalist society. he asked to compile a list of nominees who they liked. neil gorsuch was on that list. so it should be no surprise that analysis that appeared in "the new york times" concluded that neil gorsuch would be the second most conservative member of the current supreme court. analysis in "the washington post" concluded he would be the most right wing member of the court. and once president trump selected neil gorsuch, the right hng wing money machine went into action. since that money money has flooded our airwaves, more than $10 million spent in support of this nomination. never before has our country witnessed a multimillion dollar campaign for the supreme court.
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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. mr. president, there's a better way. typically the white house will consult with members of both party, republicans and democrats, before settling on a nominee. this time that courtesy was not extended to democrats. if it had, we could be talking today about a bipartisan nomin 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. mr. president, our nation's independent judiciary is under attack. our president demonizes judges whenever he feels challenged and
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now special interest groups have begun funding millions of dollars into a campaign reducing our solemn constitutional duty to -- slick campaign ads. that's why we need a new nominee, one who has the support of 60 members of this chamber. mr. president, 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. a senator: mr. president? the presiding officer: the senator from new york. mrs. gillibrand: one of the most constitutional duties we as senators have is to decide whether a supreme court nominee is the right person for the job. when we make this decision, we should always consider what is
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best for the people of this country. three branches of government were created to serve the peop people. so no matter what we do, whether it's here in the senate, whether it's in the white house or whether it's 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 for 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 was one of the biggest distortions of our
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sacred principled individual rights i've ever seen. 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 -- the presiding officer: the democrats' time has expired. mrs. gillibrand: i request an additional minute. the presiding officer: without objection. mrs. gillibrand: there will be thousands of families who will be directly affected by the decision the supreme court makes in the next few years. even the right to speech. 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
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gorsuch's record does 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 p him special -- 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 -- 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. thank you, mr. president. the presiding officer: the senator from alaska. mr.sullivan: mr. president, i too would like to spend some time talking about the confirmation and the upcoming vote on judge neil gorsuch.
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and, as many of my colleagues have noted, this is one of the most important responsibilities that we have in this body to confirm the next supreme court justice. mr. president, as you -- as you noted in remarks you gave a few days ago about judge gorsuch, he is an exceptionally well qualified candidate for the u.s. supreme court. let me go briefly into his bio. he, first of all, has a sterling academic reputation and credentials. he graduated from columbia, harvard, oxford. he clerked for two supreme court justices. he worked at the justice department. very importantly, mr. president, we're not hearing a lot of about it from our colleagues on the other side. he was unanimously confirmed for a u.s. court of appeals job for the and tenth circuit in 2006. senators, such as, hillary clinton, barack obama, joe biden
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all voted for him as well as many members of the body that we now serve in who are still serving. many of my colleagues on the other side of the aisle. mr. president, he is a westerner, and you know right now that the u.s. supreme court, with the possible exception of justice kennedy, has no westerners, and that's very important. geographical diversity on the court. right now, p my colleague -- right now, my colleague, senator murkowski pointed out that the supreme court has justices who spent almost their entire lives in the boston, d.c., new york corridor. that's not america. that doesn't represent the whole country. judges in the western states focus on issues like native american law, lands issues, oil and gas issues, very important, certainly for my state of
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alaska, to have a judge with those kinds of background. mr. president, it's more than the facts on the page that make judge gorsuch such a strong candidate for the high court. during the senate judiciary committee hearings last week, his temperament was also tested and his judicial philosophy was articulated, and 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's the congress -- it's the congress of the united states, not the judiciary, that makes our laws, and he performed exceptionally well. he answered question after question with consistency and displayed a legal philosophy
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well within the mainstream of judicial thought within the united states. now, mr. president, as you know, it's not just members of this body who are talking about judge gorsuch and how well qualified he is, but 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 these quotes. this is from an editorial from the chicago tribune. quote, 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, quote, after two days of often hostile hearings, supreme court nominee neil gorsuch is proving himself an even-tempered deeply
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knowledgeable nominee who should be confirmed by the united states senate. thethe "denver post" said that judge gorsuch has the open-mindedness necessary to make him a marvelous addition to the supreme court. "u.s.a. today", their editorial board declared gorsuch merits confirmation. this supreme court nominee is qualified within the broad judicial mainstream of america. in fact, mr. president, we looked to see if there is any major paper across the country or commentators who are opposed to judge gorsuch's nomination. it was hard top find any. it was hard to find any in any part of the country. two former chief judges of the tenth circuit court of appeals, both appointed by different presidents from different parties associated, judge gorsuch represents the best of
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the traditional -- judicial tradition in our country. one board of the member of the liberal constitutional society who said he supports democratic candidates and progressive causes said, quote, there is no principled reason to vote no on judge gorsuch's confirmation. he received the highest rating from the american bar association. and, mr. president, it's not just the a.b.a. there is a long, 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 climb, the list goes on and on and on. so, mr. president, given the broad-based support from the left, from the right, from the
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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've been listening to see what they are saying. i've been listening to the speeches. and it seems that some of my colleagues are focused on this vague notion of vagueness. literally, vagueness .if you 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 you know, mr. president, nominees typically are not expected to say how he or she would rule on
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future cases. and judicial nominees, whether appointed by democrat or republican presidents, have said this repeatedly. let me provide a quote from a prior nomination hearing by one of our current supreme court justices. she stated, quote, 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 with would reason on such questions, i would be acting injudiciously. that was justice ruth bader ginsberg, what she told the senate judiciary committee in 1993. she continued, a judge sworn to decide impartially can offer no
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forecasts, no hints, for that would show disregard for a particular case, it would display disdain for the entire judicial process. many have called this the ginsberg standard, ones that justices have followed in the judiciary committee during confirmation hearings and one that judge gorsuch also followed. in 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, he stated, quote, i would have walked out of the room. so, mr. president, 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. now, the second reason the
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vagueness standards of many of my colleagues on the other side of the aisle in their opposition to judge gorsuch is unconvincing is it ignores the fact that this is a judge with a record. they say that he's vague, we're not sure what his views are. judge gorsuch has decided roughly 2,700 cases, over 800 of which he authored. there's nothing vague about that. 97% of the time 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 thousands of pages of decisions in his own words. there's nothing vague about it. my colleagues can challenge him on his mountain of legal
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opinions, but, please, with all due respect, let's drop the facade that opposing him because of vagueness and they don't know what the issues are is not an art that has -- art that has -- argument that has much merit. despite widespread of claim from a broad spectrum of liberals and conservatives and despite his record on the court of appeals for the tenth circuit, my colleagues on other side of the aisle want to filibuster judge gorsuch's nomination. what does this mean? the language, i admit, can be confusing, cloture, filibuster, 60-vote threshold. in plain english what is really going on? well, it means that the minority leader right now wants to prevent the senate from having
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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'll just filibuster him. i've been watching a number of my colleagues come to the floor and talk about what they are planning on doing, and essentially the minority leader has essentially been saying, hey, we all do this. we're all guilty. nothing new here. this is just a little bit of pay back. this is how this place operates. in many ways these arts are almost -- arguments are cavalier in what they are about to do, but we shouldn't buy that. mr. president, i've been in the senate only two years, a mere blink of an eye compared to others, and i missed a lot of
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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 is important to understand as we debate the gorsuch nomination. first, there's never been a partisan g.i. filibuster of a nw president's nominee of the supreme court. never. 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 ginsberg in 1993 and stephen breyer in 1994 and president obama, with his first-term nominees, sonia sotomayor in 2009 and elana
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kagan in 2010. all got up-or-down vote. and, third, there has never been a 60-vote requirement for any justice on the supreme court during a confirmation process in the u.s. senate -- never. let me go through the votes of the current supreme court justices. justice kennedy, 97-0 ; justice thomas 52-48 ; justice ginsberg 94-3, justice breyer 87-9 ; chief justice -- justice alito 5 #-42, justice sotomayor 58 to 21, justice kagan, 63 to 27.
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note that two of the current members of the supreme court were confirmed by fewer than 60 votes. bottom line, there has never been a 60-vote requirement in the united states senate or a partisan filibuster of a supreme court nominee during a president's first term. never. and here's 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 united states supreme court. republicans in the senate and candidate and now president trump told the american people there's an open seat on the u.s. supreme court. this is an important issue. let the people decide. 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
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believed should nominate our next supreme court justice and whether they wanted the court to acts a a super legislator, interpreting a living constitution. or whether they wanted a justice in the mold of justice scalia with a more modest view of how the courts should view its station and 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. so despite all this, an extremely well-qualified nominee in a national election that focused on who should fill the vacancy of the supreme court, it appears that the minority leader of the united states senate is going to ignore the will of the
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american people and senate precedent dating back to our nation's founding by leading a filibuster against judge neil gorsuch. mr. president, we shouldn't allow this to happen, and we won't. i hope that my colleagues who are contemplating this will change their minds. because in going forward with this filibuster, who are they really punishing? they're punishing the american people as well as undermining the traditions of this body, a body with rules crafted carefully over the last two centuries. mr. president, as i mentioned, we need to work together in this body. in my two years in the senate, i've tried hard to work with my colleagues on bipartisan issues. i've also tried hard to show all
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of 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 united states 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 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 executive authority under the antiquities act but before i do i want to compliment
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the distinguished senator from alaska for his cogent remarks on the floor. he's right on. he's one of the great new additions to this body, and he ought to be listened to. and i personally respect him and appreciate the words that he said here today. 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
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two catastrophic monument designations. these designations remain 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. so 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 , quote, historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest. unquote. the antiquities act was
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a well-intentioned response to a serious problem, the looting and destruction of cultural and archeological 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 appliepped as intended. applied as intended. rather it has been abused, exploited and distorted beyond all recognition. it has been hijacked by past presidents not to preserve archeological features but to satisfy special interests and to advance a radical political agenda all at the expense of states rights. by citing 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. mr. president, 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've strayed off course.
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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, quote, not very much. the bill provides it shall be the smallest area necessary for the care and maintenance of the objects to be preserved. unquote. the smallest area necessary, mr. president. 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 heed say
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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'd 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 an 'tis 'tis act more than 100 years ago, congress did not -- antiquities act more than 100 years ago congress did not seek to 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
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special landmarks such as the unique national arch or the site of old cliff dwellings. yet today when it comes to the an tick 'tis act there is a -- 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 lame duck 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 delegation and the will of his own constituents when he declared the bears ears 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. and if that's not enough, consider that
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utah's second most recent national monument, the grand he is -- grand staircase escalante is 1.9 million acres. when president clinton declaird it more than 20 years ago, i remember standing on this very floor speaking out then just as i'm speaking out now. words back then are just as applicable today. i said, quote, 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.
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unquote. 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, quote, buy your leave from utahans this 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 survival. just like bear's 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 the president was never meant to set aside millions of acres
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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, quote, 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. unquote. mr. president, that was more than 20 years ago. in the intervening period nothing has changed. bear's ears was grand staircase all over again. when president obama declared the bear's ears national monument in the twilight hours of his presidency, he ignored the years of work that utah's congressional delegation had spent fighting to pass legislation to protect the region via a fair
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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 interests of utah and cast aside the will of the people all in favor of a top-down unilateral approach meant to satisfy the demands of far-left interest groups. mr. president, 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 did 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've fought to check the abuse of executive power under
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the antiquities act. as far 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, i wrote a bill prohibiting any further extension or establishment of national monuments in utah without express authorization from congress. most recently, i've been working closely 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 told secretary zinke that my support for his
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nomination would largely be part of this cows. in this effort i was eager to support his confirmation. i probably would have supported it any way because he's a fine man, but i -- i'm really pleased that he agreed with me on the injustices that have occurred in utah. just two 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 and 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
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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's at stake here. i was really buoyed up by my conversations with him in the oval office. in all of my years in public service, i have never seen a president so committed so eager to reining in the federal government and fix the damage done by these overbearing monument designations. we are fortunate to have the white house on our side in the fight for local control. mr. president, there are many areas in this country that merit protection, and 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's why for decades now i have vehemently opposed
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unilateral actions to restrict the use of entire landscapes without even the charade of a public process. and using the antiquities act to protect our public lands, we must set a new precedent of collaboration and trust between the states and the government. i look forward to working with president trump to establish this new precedent. now, mr. president, i turn to another matter of pressing importance, the confirmation of judge neil gorsuch to be a justice on the united states supreme court. i've been in a lot of these battles over the years, and i have to say this one bothers me as much as any battle that we've had. in early january of this year the democratic leader issued a warning to then-president-elect donald trump regarding the president-elects anticipation of -- the democratic leader was already threatening the soon to
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be president to either pick a, quote, mainstream and independent, unquote, nominee or the democrats would oppose the president-elect's choice, quote, with everything we have, unquote. well, mr. president, 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 man extreme and independent judge, he is easily one of the finest and most qualified nominees to the supreme court that i have ever seen. his selection was also the result of the most transparent supreme court nomination process in american history. president trump and hillary clinton month made the supreme court a centerpiece of their campaigns and spoke at lentsz about the type of -- length about the type of judge they would appoint to replace justice scalia.
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candidate trump made the pledge that he would nominate someone from a list of judges. this gave the american people the opportunity to vet the list and 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 the list of condition dates -- candidates. when the president nominated neil gorsuch from that list to be his nominee, he kept his promise to the american people, and that's who i expected him to select at that time. judge gorsuch's temperament and philosophy -- of the more than 2,700 cases that judge gorsuch has participated in on the tenth circuit, 97% of them were decided unanimously. judge gorsuch voted unanimously
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with that court 99% of the time even though the majority were democrats and in those 1% of the cases in which judge gorsuch dissented, he did so with almost the 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 solicitors general neal katyal who said that judge gorsuch is committed to the rule of law and the judiciary's independent and a man who i respect, neal katyal. judge gorsuch was appointed under four different presidents as, quote, highly respected and admired by his colleagues appointed by presidents of both parties and law clerks of all political stripes, unquote. and the american bar association
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gave judge gorsuch its highest rating of well-qualified to be an associate justice on the supreme court. now, i think we can all agree that this is a far cry from the profile of a -- of an extreme or activist judge. it's a far cry from that. and 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 mainstream. 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 experience, a person you captain help but respect. he's been educated at some of the best schools in the world and excelled at every stage of his career. he has served with character,
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courage, and integrity for more than -- 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. and, after seeing the judge 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 democrats' best efforts before and during the hearings to distort his record, he demonstrated time and again that his judicial philosophy is to imparringly interpret and apply the law -- impartially interpret and apply the law and the constitution wherever it might take him. now, mr. president, 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
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history, that has never happened before. three supreme court nominees have faced filibusters in our nation's history. the first abe fortas faced a filibuster after there was concern about his background. the second and third, william rehnquist and samuel alito endured partisan filibusters by democrats who disagreed with this nominees. for the yas lacked a -- fort fortas -- the filibusters against rehnquist and alito failed. rehnquist and alito enjoyed majority support and both were confirmed. that was a different senate at the time. there was a lot more open-mindedness about the
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qualifications of these judges and -- and their right to sit on the bench. mr. president, i regret to say that we are likely to add a fourth filibuster to the supreme court nominee, neil gorsuch. like justices rehnquist and alito, judge gorsuch enjoys clear majority support. like justices rehnquist an alito, judge gorsuch faces opposition from senate democrats who don't like his judicial philosophy. and why i'll 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 ends. unlike justices rehnquist an -- and alito judge gorsuch will not 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 describe -- subscribe to their
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views on hot button social issues should be allow to serve on the united states supreme court. never. never in the history of this body, mr. president, has the senate allowed a partisan minority to defeat a supreme court nomination for which there is a clear majority support. the only successful filibuster of a supreme court nominee in our nation's history was bipartisan and involved an ethically compromised nominee, abe fortas who resigned from the bench shortly after his nomination rather than face impeachment for serious conflict of 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.
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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 whose been following the confirmation wars for more than the last five seconds. my democratic colleagues will no doubt shout to the hill top. there are some who are standing up here too, but they will shout to the hill tops 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 the democrats' unprecedented obstruction that the republicans are undermining this institution's ideals.
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mr. president, when the american people hear these claims, when they hear senate democrats argue that republican should respond to their unprecedented obstruction by allowing a nomination with clear majority support to fail, they should recognize these arts for what -- arts for -- arguments for what they are, hypocrisy. the fact of the matter is we're only in this situation forced to choose between rewarding democrats obstructionism and changing the senate rules because of democrats and the campaign they've waged against qualified judicial nominees for the past 30 years. every single escalation of the confirmation wars, mr. president, 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, mr. president. i've been here through all of
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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 who 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 did their best to turn a good and decent man into some sort of monster. in their campaign against robert bork, senate democrats sewed seeds of destruction that are coming to full fruition. next came clarence thomas. my democratic colleagues learned from their bork experience that fabrications and misreputations
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can bring down even the most qualified nominee and so they set to work on judge thomas. not satisfied merely with denigrating judge thomas' professional qualifications they set about to destroy him personally as well. i've been in the senate 40 -- i'm in my 41st year, mr. president, and never in all my time have i seen a lower moment than the way senate democrats treated clarence thomas. no baseless allegation, no 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 42-48 margin. thankfully, mr. president, after the thomas ordeal, we stepped back from the break. when bill clinton became president and had two supreme court vacancies early in his
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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 pass back for our fair treatment of president clinton's nominees? they filibustered president george w. bush's nominees. i've used the word "unprecedented" mr. president and described democrats' expected filibuster of judge gorsuch. well, what democrats did to president bush's judicial nominees was also unprecedented. for the first time in history senate democrats successfully filibustered ten court of appeals nominees. these were nominees, mr. president, with majority support in this body. these are 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.
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for the first time in history, senate democrats created an effectual 60-vote threshold for judicial nominees. remember, when clarence thomas was confirmed with only 52 votes, that 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, mr. president, 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's notable about justice alito is he received fewer than 60 votes for confirmation. he overcame the filibuster
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because 19 senate democrats voted to end debate on his nomination even though only four audibly voted for confirmation. 15 senate democrats, that is, 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. so what happens when barack obama became president and republicans had an opportunity for payback? did they filibuster sonia sotomayor and elena kagan? of course not. indeed many republicans voted against justice sotomayor and against justice kagan. but no republican tried to prevent their nominations from coming to a vote. once again senate democrats escalated the confirmation wars
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and senate republicans chose not to reciprocate. and 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 was really something. it was the democrats who ten years earlier for the first time in senate history began the practice of filibustering court of appeals 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 ten years prior. democrats raised the effectual confirmation threshold to 60 votes by instigating filibusters to block republican nominees and then lowered it back down to 50
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votes to push through democratic nominees. and they did so after only seven failed cloture votes. 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, democrats now expect republicans to throw up our hands and allow them to block judge gorsuch, an unquestionably qualified nominee with broad support across the legal community and the country as a whole. enough, mr. president.
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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 are the ones who created an effectual 60-vote threshold for judicial nominees. they were the ones who then undid that threshold to suit 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. mr. president, to put the matter bluntly, my republican colleagues and i are fed up with these democrat 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
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ours. i regret deeply the point we've arrived at, mr. president. i'm an institutionalist. i love the senate and what it represents. i actually love my democratic colleagues, and they know it. i've been very fair to them through the years. i intend to continue to be. i value debate, and i honor bipartisanship. but 30 years ago my democratic colleagues set 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. dissent. if democrats will filibuster a person like judge gorsuch, they will filibuster anyone. anyone. who holds to the judicial values republicans embrace. neil gorsuch is as good as they come. if he's not good enough for
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democrats, no one will be. democrats demand that republicans choose a nominee they will choose if they held the white house. but 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 has in all likelihood the issue that -- 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'm not happy that we are where we are, mr. president, but i can say without reservation that we're here because of what democrats have done over the
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past 30 years to poison the confirmation process. i will vote 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, because i refuse to reward democrats for 30 years of bad faith in blocking, stalling, and smearing republican nominees. enough, mr. president. enough. mr. president, 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 near going to have -- when they're going to have nominees before this body. i kind of hope that doesn't happen, but i think it's bound to happen. and when they do, i hope that my
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fellow republicans won't treat their nominees the way they're treating ours. it's vulnerable, it's abysmal and it's wrong. and i think it's 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 have tremendous respect for federal court judges. mainly the judges in pittsburgh were all democrats. the judges in utah, a number of them were democrats, some republicans. but i've got to say that they were good judges, and i was very proud to be able to try cases in front of them. and all i can say is that in all my years of working on the judiciary committee, of trying cases before i came here, having
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an a.v. rating, the highest rating granted to attorneys for legal ethics and ability in both pittsburgh and in utah, i have to say that i'm really 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. mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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a senator: mr. president. the presiding officer: the senator from connecticut. mr. blumenthal: thank you, mr. president. i ask that the quorum call be lifted. the presiding officer: without objection. mr. blumenthal: thank you, mr. president. 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 last few weeks the director of the f.b.i. has confirmed that his agency is investigating ties
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between president trump's associates and russian meddling in our recent election. the urgent need for an impartial investigation and the possibility of the supreme court 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 threatened. when the story of this constitutional crisis is writt written, i believe that the heroes will be an independent judiciary and a free press.


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