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tv   U.S. Senate Set for Showdown Over Filibuster Rules Changes as Gorsuch...  CSPAN  April 5, 2017 8:00pm-10:01pm EDT

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i'm concerned with his rulings that fail to protect children and students with disabilities in schools. and i'm worried that he will limit access to critical health care for women. and he's not a mainstream candidate. i can't support a nominee who i believe is disconnected from the challenges faced by families in michigan and across america every day. one important example that relates directly to someone from michigan that judge gorsuch has ruled on, people from michigan have been hurt by judge gorsuch's narrow judicial philosophy. in 2009, a michigan truck driver named alphonse maddin was trying to complete a shipment, driving all night and his brakes froze in subzero temperatures, which
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we have, and the heater in his cab broke as well. he called his company to report the issue and waited for help to arrive. while he was waiting for hours in the freezing subzero temperatures, he realized he was having trouble breathing and his body was going numb. he called his company to report that he needed to get somewhere warm, but they told him he needed to either wait for the repair person or drag his trailer, even though the brakes were frozen. worried he might freeze to death, he finally unhitched the trailer from his truck. mr. maddin drove off to seek help, returning in just 15 minutes with assistance. he did what any of us faced with a life-threatening situation would do. a week later, mr. maddin was fired from his job even though
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he was transparent with his actions and completed his delivery. he completed his delivery, despite the issues caused by his frozen brakes and the broken heater. two different entities within the department of labor ruled that what the trucking company did was illegal and that mr. maddin was protected under federal law because his life was in danger. thankfully, a majority of the tenth circuit judges agreed judge gorsuch, however, disagreed, arguing the law did not protect workers who drove away to avoid freezing to death. according to judge gorsuch's interpretation, mr. maddin would have had to choose between his job and his life, and what is
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deeply concerning to me is that when he was asked about this at his nomination hearing, what he would have done, he said he really hadn't thought about it. judges should think about what's happening to people in situations as they are ruling in a fair and impartial way. this does not look like the ruling of a mainstream nominee. his rulings don't only affect michigan workers. i'm very concerned about judge gorsuch's rulings on legal protections for individuals with disabilities. we passed the individuals with disabilities act to make sure that children with disabilities got the education they deserved and that the education would be free and available to all children. so in luke, a young boy from colorado, was not able to receive the education he needed
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from his public school, his parents were able to enroll him in a private residential program specializing in children with autism that was more suitable for his needs so he could get where he needed for his development. his parents applied to the school district for reimbursement, as was appropriate, but the school district refused. his parents went to court and an administrative judge and a district judge both ruled that the school did not provide luke with the necessary education to meet the needs that idea requires. however, judge gorsuch ruled in favor of the school district, saying that all the school district had to do was provide an education that was more than
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just the bare minimum, just the bare minimum. he set a very low bar for luke and for students like luke, like my nephew barry. just to show how disconnected judge gorsuch is from the lives of everyday americans, look at the supreme court ruling that occurred at the same time as judge gorsuch's confirmation hearings. in a different case on the very same issue, the supreme court challenged and rejected the standard in interpretation that judge gorsuch believes should be provided for children and students with disabilities. they unanimously rejected the standard that he approved. this is not the view of a mainstream nominee. this is not the view of a
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mainstream nominee. i'm also deeply concerned about judge gorsuch's opinions and how they could affect women's access to health care. in the tenth circuit's hobby lobby decision, judge gorsuch endorsed the idea that corporations can deny their employees access to essential health care services, including birth control. his concurring opinion suggested that he supported that notion that for for-profit corporations, that they have the right to deny women insurance coverage or any form of contraception that an employer disagrees with. this is both alarming and unacceptable, and it once again shows how disconnected judge gorsuch is from what women in
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michigan and around the country experience. judge gorsuch did not recognize the impact of denying coverage to women employees and their families and putting those decisions in the hands of their employers. women in michigan should not have to pay higher costs for health care than men, and they should not be denied essential health care services, and these dangerous interpretations will continue to take us down the path of permitting and protecting discrimination by corporations and institutions over the rights of workers and consumers. again, not a mainstream nominee. and when it comes to supporting women, not just in health care but in the workplace, judge gorsuch has had some extremely troubling rulings. in 2003, a woman named betty
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pinkerton experienced several instances of disgusting sexual harassment from a male supervisor at the colorado department of transportation. every time she made it clear that his comments were not acceptable in any way, they continued over the course of months. she went to her office's civil rights staff and submitted a written complaint and he was removed as her supervisor. she was fired about a week later. she sued. but judge gorsuch upheld a ruling that claims she waited too long, she waited too long to report harassment and believed that pinkerton's filing was, quote, performance based. how often do we hear that in these situations? despite not being able to
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produce any real evidence that this was the case, he ruled that she couldn't go to trial and present her case in front of a jury. so when it comes to protecting women in the workplace, we know that judge gorsuch has come up short. this is not a mainstream position and not acceptable, in my judgment, for any supreme court nominee, not acceptable to what i want to see happen for people in michigan. i want to end my speech on the importance of consensus because that's what we should do here. that's how we get things done. for decades, we have confirmed our supreme court nominees with consultation and consensus. we have said -- and i think it's the right thing -- that we should have to have more than just a simple majority to confirm judges, the highest
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court in the land, a lifetime appointment, that it makes sense that we come together to do that, and in fact for seven of the eight current united states supreme court on the bench today, they received 60 votes or more somewhere in their process. both president bush's and president obama's nominees as well, those now on the court. president clinton, president bush, president obama talked to senators from both parties about their picks to get input as to who would likely be supported and not supported. this did not happen with judge gorsuch. president trump had a list chosen by very narrow special interests and did not ask opinions of key people on our side of the aisle as to what
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would make sense to get the consensus to get 60 votes. i do not believe judge gorsuch will be fair and impartial, giving a fair shot to the workers and families in michigan as well as around the country, and my test is very much about what is best for the people i represent in michigan. who will be fair and impartial and give them a fair shot. because i do not believe he can do that, i cannot support his nomination. he is not the right choice for this vacancy. we can come together. i would urge my colleagues to go back to the drawing board, bring in a consensus mainstream nominee. in the past, we have basically had a practical rule of saying if the nominee can get -- cannot
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get 60 votes, we'd change the nominee. we don't change the rules. and it's extremely concerning that that would not be the approach at this time. i would urge that we come together, get a mainstream nominee and be able to work together to get this done. thank you, mr. president. a senator: mr. president. the presiding officer: the senator from pennsylvania. mr. casey: thank you, mr. president. i rise this evening to speak about the nomination of judge gorsuch to be an associate justice of the united states supreme court. every member of the united states senate has an obligation to review this nomination thoroughly and to make a determination. i believe that the advise and consent duty of a united states senator, certainly in my case when i make decisions about any judge for confirmation but
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especially one decision for the supreme court, has to be a decision that's grounded in a review of a number of considerations. i think they are genuinely the same no matter who the nominee is, but sometimes they can carry. i think in this case, there are probably additional considerations that i weighed. of course, you want to look at someone's -- the nominees, i should say, their character and their integrity, certainly their temperament, judicial temperament. someone can be very capable as a judge and very learned in the law but may not have the temperament or the integrity. i don't think there is any question there is nothing in the record that indicates that judge gorsuch doesn't have the experience or the character, the integrity to do this job and to do it with the kind of temperament we have a right to expect from any judge. i also believe at the same time, though, that you have to do a review of the cases that were
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decided by the nominee, in this case a judge, a judge on the tenth circuit court of appeals. a very similar kind of job that the supreme court, supreme court justice does. you're reviewing cases on an appellate court, in judge goure's case the tenth circuit. not the supreme court but still appellate court decisions. part of that inquiry, i believe, is a review or an assessment really of this individual's judicial philosophy, and that's where i will spend most of my time tonight and also talk about the rule change that might be upon us. but while reading judge gorsuch's opinions, i developed very serious concerns about his rigid judicial philosophy. judge gorsuch's opinions indicate in my judgment an
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extremely conservative judicial approach. this leads him to come down disproportionately on the side of powerful interests and against workers in many cases, consumers in other cases, a cause for particular concern at a time when the supreme court itself under chief justice roberts has become an even more -- or i should say an ever-more reliable ally to big corporations. a major study published by the minnesota law review in 2013 found that the four conservative justices currently sitting on the report are among the sixth-most business friendly supreme court justices since is the -- 1946. a review by the constitutional accountability center shows the consequences of the court's corporate tilt finding that the
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chamber of commerce, the national chamber of commerce, has had a success rate of 69% in cases before the roberts court, a significant increase over previous courts. these are cases of serious importance to everyday americans, cases involving rules for consumer contracts, challenges to regulations, ensuring fair play in labor standards, attempts by consumers to hold companies accountable for product safety, and much more. another concern that i have about his nomination is that at some point in the campaign of last year, the republican nominee was given a list of names from which he should choose, were he to be elected president. i would hope that there'd be a list of names that any president would consider beyond what were
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told in published results was just 21 names developed by organizations on the far right, and that -- that fact alone causes me great concern. that the president is only permitted, according to this arrangement, this understanding, only permitted to consider a list of 21 names that those organizations developed. the record of this judge indicates also that he would only exacerbate the problem that i pointed to with regard to the corporate tilt of the current roberts court. and in my judgment, by doing so, would further stack the deck against ordinary workers and families. it starts with his basic judicial philosophy. he employed the narrowest possible reading of federal law and shows extreme skepticism,
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even hostility, toward executive agencies. or what some might call administrative agencies, agencies that carry out -- carry out the law in areas like labor or consumer protections and the like. many have expressed concerns about his opinion in the hobby lobby case, where a judge gorsuch endorse the idea that owners of four-property -- of for-profit corporations can assert corporate religious liberty rights, opening the door potentially to widespread discrimination against lgbt americans and other americans as well. but a variety of other cases are equally illustrative of judge gorsuch's troubling approach to the law. just to give you a few examples, one case involved the tragic death of a trench hand who was
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electrocuted while working as part of an excavation crime the court reviewed a ruling by the department of labor punishing the mining company for fail to provide proper -- for failing to provide proper safety training for the worker. judge gorsuch mocked the rules as nothing more than a delfic declaration and he concluded that the agency was wrong to penalize the worker following his death. fortunately, a majority disagreed and affirmed the department of labor's ruling. another case involved a truck driver who was stranded on the side of the road at night in subzero temperatures. with the brakes on his trailer frozen and the heater in his cab broken, he called dispatch for help multiple times, but after hours -- hours -- of waiting in
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the freezing cold, this truck driver was having trouble breathing and his for send a feet were number. worried about his safety, he unhitched his trailer, drove the truck away, and then later the company fired him for abandoning the trailer. three different authorities within the department of labor ruled against the company. judge gorsuch disagreed, parsing a federal statute to argue the driver was not protected in his decision to drive away, despite the risk of freezing to death if he stayed put. again, fortunately, the majority of the court disagreed and the fej circuit -- on the tenth circuit describing the judge's labored interpretation of the statute as, quote, curious, unquote and ruling in favor of the truck driver. i have a basic disagreement with judge gorsuch's rulings
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regarding the legal protections for individuals with disabilities and especially students with disabilities. in one case he ruled against parents who believe their autistic child was not receiving an adequate education at his public school. a hearing officer, an administrative law judges and a united states district court all found in favor of the family, ruling that they were entitled to reimbursement for tuition at a residential program tailored for children with autism judge gorsuch reversed the rulings and instead articulated an extremely narrow interpretation of federal law. this particular federal law, that protects students with disabilities, the idea law, the individuals with disabilities and education act. in 2004, congress amended the
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idea, in part based upon findingfindings that its implic, quote, has been impeded by low expectations, unquote. nevertheless, judge gorsuch ruled that because the student in this case made some progres progress -- some progress -- in public school, even though he could not generalize his learning to settings outside of school, which is the goal of the individualindividuals with disas education act, the family, the judge believed, was not entitled to tuition reimbursement. so that happened a number of years ago, that decision. just so happens that the united states supreme court, the current court with only eight members, voted 8-0 against the basic position that judge gorsuch had n. that education case. different case but the same question about, what is the duty
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owed by a school district to a child with a senate that ruling happened -- with a disability? that ruling happened to be announced during the week that judge gorsuch was in front of the judiciary committee. in fact, on one of the very days he was in front of the committee. so when a unanimous court disagreed with his approach to those kinds of cases involving children with disabilities in a public school. so these cases and others are illustrative of a broader trend in the judge's jurisprudence. whether it is a case involving an employee seeking redress for workplace discrimination, hospital taft of staff fighting for back pay after an unlawful reduction in work hours, or a victim of improper conduct by a medical device company looking for justice, justice gorsuch -- judge gorsuch, i should say, his approach produces rulings disconnected from the lived
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experience of those they impact. so therefore after review of his cases, many of his cases, after consideration of his judicial philosophy, and after a review as well of the current state of this court, especially the corporate tilt of this current roberts court, i have concluded that i could not support judge gorsuch's nomination to the supreme court. i wanted toed a some comments -- i wanted to add some comments before concluding tonight about what this vote may mean to the senate and the rules of the senate. it's my belief -- others, of course, disagree. but it's my belief that if you seek to become an associate justice on the most powerful court in the world, you ought to be able to garner the support of at least 60 members of the united states senate.
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if your nomination to the court is the subject of such consensus, you are ought to be able to get 60 votes in the united states senate. if your nomination is seen as a -- or both your nomination and your judicial philosophy is seen as such a mainstream nomination, you ought to be able to get 60 votes. despite that, it's a point in time when we're having a debate about how we arrived at this question of a potential change in the rules. i believe that the reason we got here is because of substantial and unyielding obstruction by republicans in the united states senate over a number of years. just consider this: from the founding of our nation through preapplies first term
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when senate republicans were in the not the motion to cut off debate has proceed on 14 times. vice president times in the total history of the united states senate, the minority forced the majority to file cloture. of all the presidents before president obama combined, cloture only needed tock filed on 68 of these nominations. but in president obama's first term before republicans took the majority in the senate, republicans refused to consent to vote and forced the democratic to file cloture on 79 nominations. so over 50% of all the cloture motions ever filed on nominations in the history of the united states senate. so half of them -- half of tho those -- half of those cloture petitions filed just in the last couple of years. that doesn't even include what i
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think was an outrageous obstruction that continued once republicans took the majority, culminating, of course, in their refusal to consider judge garland's nomination. so judge garland of the district of columbia circuit, the chief judge who had great support, i think on both sides of the aisle, judge garland got no meetings -- or maybe a few meetings, no vote and not even a hearing before the judiciary committee. according to the congressional research service, president obama is the only one of the five most recent presidents whose first term was marked by nominations that languished for over half a year on average. also in his first term, he was the only president of the first five under whom the district court vacancies increased unaccompanied by the creation of
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new judgeships to meet the demand. during president obama's first term, they waited an average of 60 days longer for confirmation than the presidents of george washington bush. i think the evidence is overwhelming. obstruction reached historic levels under president obama. so we are here at this point and we have to make a decision. my vote will be to insist on 60 votes. therefore, voting no on cloture and also voting no on the nomination of judge -- on the nomination of judge gorsuch. and, mr. president, with that, i would yield the floor.
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ms. klobuchar: mr. president? the presiding officer: the senator from minnesota. ms. klobuchar: mr. president, i come to the floor to join my colleagues in speaking on the nomination of judge neil gorsuch to serve as an associate justice on the supreme court. as you know, senators have a solemn obligation to advise and consent on a president's nominee for the supreme court, and i take that obligation very seriously. my goal during the hearing as a member of the committee was to understand the judge's view on the law and his judicial record and his philosophy. we needed to know what kind of justice he would be and what that would mean for americans. although many cases decided by the lower courts are less complicated, even though some of them are complicated, many of them are more straightforward than the ones that come before
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the supreme court. the cases that go before the supreme court are the hardest cases. they involve the most complicate complicated legal gray areas. i had heard my colleagues many times talk about some of the unanimous decisions that the judge was involved in. i know that. when i look at the kind of cases that come before the supreme court, those are different kinds of cases. as i looked over the judge's record, i tried to focus on situations where he faced hard cases like those he might decide as a supreme court justice. in my mind, the question was this. what would jowr do if he was appointed to the supreme court? what kind of philosophy would he have? in difficult cases, one judicial approach is to try to find consensus by ruling on the narrowest possible grounds. judge merrick garland who was nominated last year was known and praised for that approach by
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senators on both sides of the aisle. congress actually provides a helpful analogy. when democrats and republicans pass legislation, we try to find common ground. we often have different views, but we do find areas of consensus. sometimes that ground is narrow, but we can find agreement and then come together. in reviewing the judge's record, i saw that he often took a different approach, one where he often tried to go a step farther than the consensus opinion, sometimes really farther than the consensus opinion by suggesting a provocative change in the law are making a broader ideological leap which i felt was not consistent with the precedent and was not consistent with the kind of philosophy of a judge that regardless of their political beliefs, i didn't expect to agree with everything he said or how he answered the questions, but what i saw was a strikingly different philosophy. many of the judge's opinions
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presented opportunities for narrow judicial consensus, but the judge decided more than the case in front of him. that is what concerns me if he were to be confirmed to the supreme court where he would have to decide the toughest cases and hardest legal question facing our country. so after thorough examination and consideration of his answers and the record, i decided not to vote in favor of the judge's nomination. his judicial approach and his record on critical cases, including the rights of children with disabilities, campaign finance and preserving health and safety protections, have led me to conclude that i cannot support his nomination to the supreme court. now, let me make this clear. again, i didn't expect to agree with every opinion he wrote or everything he said, and i certainly did appreciate the introductions of the presiding officer as well as senator bennet and the support he had from colorado. that meant something to me.
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but then when i looked at the record, what i saw time and time again was a judge who truly demonstrated the contrast between a narrow consensus-based approach and a more far-reaching one. one area where the judge has gone farther to issue broad rulings that would have profound consequences on people's lives is in the case he decided on children with disabilities. during the hearing, because this case had been decided by the supreme court right before i got to ask questions, i asked a lot of questions about this case on the idea or the -- also known as the individuals with disabilities education act. the idea was passed to ensure that students with disabilities are supported in school, and in my state 124,000 children rely on this critical protection. i occupy the senate seat once held by minnesota's own hubert humphrey, someone who of course was never at a loss for words. in fact, this very desk that i'm
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standing behind was a desk that hubert humphrey signed and used. he delivered a speech 40 years ago, and one line of that speech is just as appropriate today as it was back then. he said, quote, the moral test of government is how that government treats those who are in the dawn of life. the children, those who are in the twilight of life, the elderly and those who are in the shadows of life, the needy, the sick and the disabled. the supreme court has honored that principle. on the day of the judge's hearing, the supreme court in an 8-0 unanimous decision ruled against the narrowest interpretation of the idea embraced by judge gorsuch, an interpretation that limited the educational opportunities of children with disabilities. i couldn't agree with the 8-0 decision more. all children, particularly those with disabilities, deserve the
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tools they need to succeed in life, and every justice on the supreme court has the duty to protect these kids. so when the supreme court ruled that morning and overturned the standard that the judge had embraced in this tenth circuit case, i asked him about his, quote, merely more than de minimus, end quote, standard that he wrote into that opinion back in 2006. in explaining his ruling, the judge said that he was bound by precedent to use the narrow standard that he used in that case. he cited a 1996 case from the tenth circuit, his circuit that he said he was bound to follow. now, he wasn't on the court back in 1996, but when he did the case in 2006, he used that 1996 case. so i looked back at that case, since during the hearing and at the judiciary committee business meeting earlier this week, my
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republican colleagues repeated those words. they said that the judge was bound by precedent to use his narrow merely more than de minimus standard that had in fact been rejected by the supreme court just this past month. so i looked to see if in fact that was true. was he truly bound by precedent, because that's pretty important to me. there have been a number of decisions where he has gone much further than he needed to, where he in my mind has abandoned precedent, and i thought well here we have a case that's fresh right before us and he has said that he was simply following the precedent, that he had no choice at all. here's what i found. while the 1996 case made a number of findings and concluded that the school district satisfied the requirement in the idea statute of providing an appropriate education, the case never actually turned on the standard that the judge said he was bound by, that the judge said was precedent.
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here's why. the 1996 case only mentioned the de minimus standard once. it was a passing reference. even in that mention, the de minimus language is from a different circuit. it was from the third circuit. and in that 1996 case that he claimed that he was bound by and that my republican colleagues keep mentioning that he was bound by, there was no discussion about whether the benefits provided for the high school students satisfied that standard. the case simply did not turn on the de minimus language. i know this seems in the weeds, but the court in 1996 never relied on the de minimus standard to reach the result that it did. and was that enough? no. in the one passing mention in the 1996 case which was not binding, the language actually says, i quote, more than de minimus. but the judge went out of his way to add the word merely to
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that standard which had never even been there before in the case that was binding on him to begin with. so he changed it and said merely more than de minimus, that that's all the kind of education a kid with disabilities in that school district in colorado would have to get. this is like if you say more than empty, the gas tank is more than empty, which means it could be a lot more than empty, adding merely closer to empty. you just say it's merely more than empty. the addition of a single word made it more difficult for children with disabilities to get help at school. that's why it's hard for me to understand why the judge said that the merely more than de minimus standard was binding when he wrote that opinion in 2006. he was not he added the word merely and then in fact he used a standard that didn't even decide that 1996 case that was from a different circuit.
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when interpreting the idea, the judge once again went a step further instead of deciding the case on a narrow ground. that matters because decisions like this have a dramatic impact on the lives of children and families, which is exactly what justice roberts noted when he wrote the opinion 8-0 rejecting the standard that was the one that judge gorsuch had used. i have heard from families in my state, and so many of them tell me how idea has made a real difference to them. my mom taught second grade until she was 70 years old in the minnesota public schools, and i know from her how much she worked with those kids with disabilities and how much she cared about them. here's an example i just learned about from my state. a mom from watertown, minnesota, told me about her son who was worn with down syndrome. she is so thankful for idea because this protection ensures that he can have everyday life
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experiences. idea allows her son to be fully integrated with the rest of the students in his school, and as a result has made many friends and built a strong social network. when she asked her son whether he likes school, he always said in resounding voice yes. those are the stakes of this legal debate. second, i wanted to focus on campaign finance. in my view, one of the most troubling court decisions in recent years is citizens united. since citizens united, dark money has been spent in extraordinary sums, adding up to an estimated $800 million in just the past six years. this continues to have an outside influence on our politics, distorting our representative democracy and hurting in my mind campaigns on both sides of the aisle. now, how did this apply to the judge? it applies to the judge because in an opinion that he wrote that is very relevant to this area of the law. in that case, which is called
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the riddle v. hickenlooper, a narrow case about how campaign finance law applied to certain kinds of contributions in colorado about a major party or not major party, the judge again decided that a narrow consensus decision was not enough. in part of that decision, but then he went out of his way to write a second concurring opinion to suggest that the court should in fact apply strict scrutiny to laws restricting campaign contributions. if the supreme court adopted the approach in the judge's opinion, it would compromise the few remaining finance protections that are still on the books and that would make it even more difficult for congress to pass future reforms. the notion that congress has little or no role in setting reasonable campaign finance is in direct contradiction with where the american people are. in recent polls, over three quarters of americans have said that we need sweeping new laws
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to reduce the influence of money in politics. while polls may not be a judge's problem and should not be a judge's problem, democracy is. when unlimited, undisclosed money floods our campaigns, it drowns out the people's voices. it undermines our elections and shakes the public's trust in the process. my colleagues and i repeatedly asked the judge about his views on campaign finance laws and public disclosure requirements. he declined to tell us what the proper legal standard would be for evaluating campaign finance laws. he also would not give us a real sense of his views on public disclosure of campaign contributions, although a majority of current justices support this. during our exchange on campaign finance, i was reminded of justice scalia's support for greater public disclosure and his comments on that topic. justice scalia said requiring people to stand up in public for their political acts fosters
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civic courage, without which democracy is doomed. for my part, i do not look forward to a society which, thanks to the supreme court, campaigns anonymously and even exercises a direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. justice scalia added this does not resemble the home of the brave. the most striking example of a judge choosing not to decide a case merely based op the facts was one last year in which he wrote the opinion and then wrote a concurrence to his own opinion. now, as i noted, at the judiciary hearing, it is better to write a concurrence to our own opinion than writing a dissent to your own opinion, but still he felt compelled to write a concurrence to what was an opinion that he wrote, and mostly judges are happy when they get their peers to agree to
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a decision, but in this case he went a step further. in gutierrez, the name of the case, the judge went beyond the facts to suggest overturning the long-established precedent of chevron. chevron is a 33-year-old supreme court case that ensures the most complex regulatory decisions are made by the experts who are best equipped to handle them. not by judges or lawyers without any relevant technical knowledge. justice scalia again embraced the chevron dock turin and it has been used in more than 13,500 decisions. chevron ensures that federal health, safety and education rules stay on the books. these rules protect everyone from the hard-earned pension of an hourly minnesota grocery store worker to the clean water in their great lakes to the difference between life and death for minnesota iron ore workers. the judge's approach would have
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titanic real-world implications on the daily lives of americans. when the judge wrote an opinion that suggested it might be time to, quote, face the behemoth, he suggested a change in the law that would jeopardize countless rules, compromise important protections and create widespread uncertainty in our laws.i asked the judge about the uncertainty that would result from overturk chevron. i asked what he would replace it with. i didn't get a direct response. the judge even said that he, quote, didn't know what all the consequences would be, end quote, and that he, quote, wasn't thinking about being a supreme court justice, end quote, when he was writing the decision. so what does all of this mean? it means that the judge has repeatedly gone beyond the facts of the case, issuing separate concurrences with far-reaching effects or, as in the disability decision, writing opinions with profound consequences.
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when i read these opinions, i'm reminded of justice byron white, who i know justice gorsuch clerked for. justice byron was a justice focused on eliminate case in front of i here is a quote, time and again justice white avoided brought theoretical basis for a decision when a narrow-backed specific rationale would suffice. there is a reason we have judges to apply the law to the facts of a case. it is because answers aren't always as clear as we would like them to be. and sometimes there is more than one reasonable interpretation of the law. the cases that get to the supreme court are not the ones where everyone agreed at the lower-court level. her they're the really hard cases. it is that discretion in making those decision-makers it so critical that justices interpret the law evenly, without fear or favor and with the humility to
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recognize the gravity of the office, to respect the role of the judiciary, and to understand the impact of their decisions on people's lives. as i look back at the judge's record and his answers in the hearing, i'm again remanded that it wasn't a law professor or a federal jurist who was helped by a court's reliance on chevron in interpreting a labor department rule. it was an hourly minnesota grocery store worker that got to keep his hard-earned pension after the eighth circuit court relied on chevron. and when the court stripped away the rules -- the supreme court stripped away the rules had a n. that citizens united case that opened the door to unlimited super pac spending, it was not the campaign financiers or the ad men who get paid to write thesards that were hurt, it was the grandma in lanesboro, minnesota, who actually thought it mattered when she sent her senator a $sod campaign
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contribution. and when chief justice roberts wrote the unanimous opinion just this past month rejecting the merely more than de minimis standard that judge gorsuch had written, he said, the justice said, 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. that is what the supreme court said about how the standard that judge gorsuch wrote in his opinion in the tenth circuit affected students with disabilities. so in the end, mr. president, i believe we need justices who understand that the law is more than a set of dusty books in the baste stacks of a law -- in the
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basement stacks of a law library. above all, we need justices who understand and will uphold the motto on the supreme court building to ensure all americans achieve equal justice under law. that's why i won't be supporting the judge's nomination to be an associate justice of the supreme court. thank you, mr. president. i yield the floor. mr. schatz: mr. president? the presiding officer: the senator from hawaii. mr. schatz: thank you, mr. president. the authors of the foundation laid the -- the authors of the constitution laid the foundation of the senate without even know without standing. members were to serve six-year terms and to represent not just
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a district but an entire state u but it was clear from the beginning of the formation of the senate it would take time of about the purpose of this body was truly realized. for several decades in our nation's history, it was the house of representatives, not the senate, that hosted the great debates and introduced major legislation. it wasn't until the nation began to splinter in the shadow of slavery that the senate came into its own. and while the rules of the senate gave us its basic structure, it was the members of the senate, the people, who made up this body, who had to stand up and to lead. we remember them today as the lions of the senate, daniel webster, dan calhoun, henry clay. and this body owes its status to them and their leadership because they began to define the senate in a way that no one had before.
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over time, this place became one that valued bipartisanship, deliberation, and compromise. it has become a chamber that balances the right to debate with the demands for action. and some of the toughest moments in our history, the members of the senate have used this body to lead, particularly when the president has faltered. take president nixon. the watergate scandal had weakened the presidency in ways that do-nothing presidents never had. l but the senate, led by a member of the president's own party, didn't stand by and watch the void unmoved. they filled the vacuum for the good of the country. it is this kind of history that has shaped the shape senate into -- -- that has shaped the senate into what it is today, a body that examines, considers, protectprotects.
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senator bayh said, the senate is a source of wisdom and judgment, both on the actions of the lower house and on the executive. that is what the senate is for. that is our purpose. we achieve that purpose through customs and traditions, through members serving six years and representing whole states, through rules that force bipartisanship, deliberation, and compromise. but now the majority leader has placed one of those rules on the chopping block. because they can't get to 60, they can't find the 60 votes needed to end debate on the president's nominee for the supreme court. but we shouldn't be surprised to find ourselves here because, after all, back in february president trump told the majority leader to change the rules if he had to. now, as this administration closes in on its first 100 days
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without passing a single piece of major legislation, the senate majority leader is ready to fulfill the president's request and change the rule instead of changing the nominee. the question i have for this body is: should we change the rules in order to give the president a win before spring break? should we being weakening the senate at a time when the executive branch is so weak? isn't it our obligation to assert ourselves into this void instead of receding from responsibility? i can think of no instance in the history of any great legislative body in which the legislature decides to diminish its own power. and this is beyond strange in the world's greatest deliberative body, in the world's most powerful legislative chamber. for what good reason would we give up our own prerogatives? this administration has been ineffective.
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now the senate majority leader is suggesting that the senate respond to this executive weakness by weakening ourselves. this is wrong. the purpose of the senate is achieved through bipartisanship, deliberation, and compromise. the 60-vote threshold for a supreme court nominee preserves these ideals. changing this rule will make it harder to get there. look at the house of representatives. look at the way the house intelligence committee dissolved so quickly into partisanship unable to its job. look at the country. look at the campaign last year. we are a country divided. polarization is at an all-time high. and so now is not the time to crush a cornerstone of the senate's foundation. but i don't think this is inevitable. this is not unstoppable. this is up to all of us. it is up to the members of the senate to decide if we are going to damage the world's greatest
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deliberative body at a time when the country needs us the most. the senate has always been defined by its members. the rules, the customs, the traditions, they help. but at the end of the day, it's the members of the senate who, like calhoun, webster, clay, kennedy, inouye, hatch, mccain, who made the senate relevant and necessary. so we're going to find out who we are as senators. and i would ask that, at a minimum, the senate take its time on this decision. don't rush. that's not who we are. that's not hour we get to the best decision -- that's not how we get to the best decisions. this is about the future of the senate and the future of the court. the nuclear option will mean nominees for the supreme court won't have to even meet with the minority party to be confirmed. it will mean that the senate's habit of being slow, sometimes maddeningly slow, will go away, and that tradition that allows a
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senator to hold not just in this chamber but across the country will be undermined. and so to my republican colleagues, please take a few weeks before you decide to change the senate forever. take your time here. this is probably one of the most serious decisions that you're ever going to make as a senator. because it's about the senate itself. this is worth talking about, this is worth deliberating over, it's worth thinking o go home and talk to your constituents. if you want to do this, you have the votes. you can do this three mondays from now, anytime you want. but for goodness sake, floss harm in thinking about it -- there is no harm in thinking about t all we need is three members of the republican party to go to the republican leader publicly or privately to say, give us timm some time do another way to do this.
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us otherwise you will make the court, this court, this country more extreme and more divided. you will answer this give moment in history by weakening one of the last bastions of bipartisanship and i believe you will regret it. i yield the floor. i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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mr. sullivan: mr. president? the presiding officer: the senator from alaska. mr. sullivan: mr. president, i ask that the quorum call be vitiated. the presiding officer: without objection. mr. sullivan: mr. president, for months i've been coming down to the floor every week to recognize someone in my state who has made a difference to our communities in alaska. someone who has devoted time and energy to making my state a better place to live. i call these individuals our alaskan of the week. now, as i've said repeatedly, many -- all of my colleagues and those watching on tv, that i am a little biased here, but i believe my state is the most
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beautiful in the country. i'd argue in the world. i urge everybody in this room, everybody watching on tv, come to see for yourself. take a trip to alaska. it'll be the trip of a lifetime. guaranteed. but, mr. president, the people that truly make my state unique, people who are helping each other, strong-willed, warm-hearted, tenacious people who have worked tirelessly for years for all of us -- for all of those who live in alaska. so, mr. president, this week i'd like to honor dan fausky, one of the strongest-willed, harmest-hearted people i've ever known. all he's done for us is made alaska a better place for literally thousands and thousands of people throughout our state. dan came to alaska in
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1974 after serving in the army, as so many alaskans do. and like so many alaskans, he arrived with a glint of steel in his eye and a mission to help build our state. alaska is full of natural wonders, but our manmade wonders are also marvels and dan wanted to be part of building more of those marvels for our state, for our country. he first arrived in the north slope burrow, top of the world, to help the community build up their infrastructure and strengthen the alaska native villages in the area. it was a time of enormous change for all of alaska, and particularly the north slope. oil from the north slope's prudhoe bay, the largest oil field in north america, had recently begun to flow down the trans-alaska pipeline system, 800 miles.
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the largest land claims act in u.s. history, the alaska native claim settlement act had recently passed and the governments of villages in rural alaska were being formed and reformed to take advantage of these opportunities. after dan went back to school to receive a master's degree in business administration from gonzaga, he made his way back to alaska again to serve as the chief financial officer and chief administrative officer for alaska's north slope burrow where he launched an ambitious and ultimately successful capital plan to provide basic necessities to so many americans -- that so many americans take for granted like running water and sewer. these kind of services to the villages throughout the minority -- the
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north slope burrow on the top of the world. according to bill tracy sr. from point lay, one of the villages there, who was a coworker at the time, dan's excellent work ethic and skills earned him the respect of the north slope leaders. his accomplishments were remarkable said mr. tracy. with this beautiful and spirited wife elaine by his side, always by his side, dan then moved his family to anchorage to head up the alaska housing finance corporation, and for 18 years he managed ahfc's nearly $5 billion in assets. it's not an overstatement, mr. president, to say that he revolutionized that agency doing remarkable things, including and most importantly, helping thousands of alaskans. thousands of our
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constituents, of our fellow alaskans pursue their dream of buying an affordable home. nothing more important than that. the alaska legislature just passed a bill to name the alaska housing finance corporation the daniel r.fausky building, and the dedication ceremony will take place in anchorage on saturday. as his bioindicates, there is no doubt for decades dan fausky served alaska with his hands, with his heart, with his head, but a bio on paper can only tell you so much about a person. to really appreciate him, you have to have been with him and watched the energy and can-do spirit radiate from dan fausky. you had to watch him talk to people with respect and humor and understanding and a very keen intelligence. he had a big laugh, a very big laugh, and he
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told great stories. he also had that rare ability to genuinely connect with everybody he met. it didn't matter who. he was able to speak the language of a businessman, a builder, a veteran, a public servant. he spoke the language of a father, a husband, a friend, a true alaskan. and in doing so, he gained the respect of everybody, and i mean everybody in my state. politicians, state workers, military members, people from all across alaska, people from all across the political spectrum. if you wanted something done and you wanted it done right, in alaska you asked dan fausky to help you do it. people trusted him. i trusted him. most importantly, mr. president, dan was a great father to three
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great boys: d.j., scott and brad. and two daughters, marcy and kathy. and he was a great husband to his incredible, vivacious and very strong wife elaine. mr. president, dan fausky passed away this afternoon with his family and friends by his side. our prayers and the prayers of so many alaskans go out to all of them during this very difficult time. and for anyone watching, i humbly ask that you say a prayer too. for all he's done for all of us, all his memory will continue to do for all of us, dan fausky is our alaskan of the week. he was also my very good friend.
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and my wife julie and i will miss him greatly. i yield the floor.
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the presiding officer: the senator from colorado. mr. gardner: i ask consent to proceed to legislative session. promise without objection. mr. gardner: i understand there are two bills at the desk and i ask for their first reading en bloc. the presiding officer: the clerk will read the title of the bill en bloc. the clerk: s. 861, a bill to provide for the compensation of federal employees affected by lapses in appropriations. h.r. 1301, an act making appropriations for the department of defense for the fiscal year ending september 30, 2017, and for other purposes. mr. gardner: i ask for second reading and i object to my own
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request all en bloc. the presiding officer: objection having been heard, the bill will receive its second reading on the next legislative day. mr. gardner: i ask unanimous consent the senate proceed to the immediate consideration of s. res. 118 submitted earlier today. the presiding officer: the clerk will report. the clerk: senate resolution 118 condemning hate crime and any other form of racism and so forth. the presiding officer: is there objection to proceeding to the measure? without objection. gunshot gunshot i ask the -- mr. gardner: i ask the resolution be agreed to, the preamble be agreed to and the intervening action or debate laid on the -- the presiding officer: without objection. mr. gardner: i ask the senate recess until 10 a.m., april 6. the time for the leaders be reserved for their use later in the day,
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following leader remarks the time until the cloture vote on the gorsuch nomination be equally divided between senators grassley and feinstein or their designees. finally that the mandatory quorum with respect to the cloture vote be waived. the presiding officer: without objection. mr. gardner: i ask unanimous consent that the senate resume executive session to consider the nomination of neil gorsuch. the presiding officer: is there objection? without objection. mr. gardner: if there is no further business to come before the senate, i ask that it stand adjourned under the previous order following the remarks of senators kent well for 10 -- cantwell for 10 minutes, franken for 30 minutes, murphy for 30 minutes, hirono for 30 minutes. the presiding officer: is there objection? without objection, so ordered. the clerk will call the roll.
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quorum call:
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ms. cantwell: i ask that the quorum call be dispensed with. the presiding officer: without objection. ms. cantwell: mr. president, i rise to oppose the nomination of neil gorsuch and to oppose cloture on this nomination. take this responsibility seriously, to give advice and consent. and i take the president's remarks that he planned on nominating someone to the court who did not believe that roe v. wade was settled law. the u.s. supreme court nominee requires 60 votes and if a nominee can't clear 60 votes, then i agree with my colleague, the senator from new york, that it's the nominee that should be changed and not the senate
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rules. if confidence, judge gorsuch will have a lifetime appointment to the u.s. supreme court and have an impact on many, many americans' lives. when people say "lifetime," i think that almost doesn't quite accurately reflect this issue and nomination. lifetime in this case may be 30 to 35 years. it's hard for me in an information age to think of all the issues that are going to occur in the next 30 to 35 years and what opportunities this nominee might rule on. but i know this right now: these price ofvites and how -- these privacy rights and how they affect the lives of many americans are critical, not just to my constituents but to people all over the country. judge gorsuch is commonly referred to as a proponent of originalism and texturism. he believes the u.s. constitution should be interpreted by the original intentions of those who drafted it as closely as possible.
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as someone who knows well the record of a former supreme court justice who wrote the connecticut v. griswald decision, i doubt that you would say that he was an originalist. some legal scholars have even called judge gorsuch selective originalist, favoring some provisions while overlooking others. while no one expects judge gorsuch to reveal how he would rule on a particular case during his confirmation hearing, did he not give senators enough background about his judicial filphilosophy, in nor in private mealings did he give me enough assurance o. whether you are talking about access to health care or you're protecting individuals' privacy rightrights from unwanted corpon or government intervention,
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these issues are critically important. judge gorsuch told the senate judiciary committee that he does recognize privacy rights. however, his earlier writings actually said that uninnumerated constitutional rights were a counter-ddiction to this statement. so this contradiction raised questions with me, and i worked to try to further clarify his judicial philosophy on this. i told him that my state actually had codified the rights of women to access to health care. he said, oh, you mean your state legislature did that? and i said, no, judge gorsuch. i mean the people of washington voted on these issues and voted to protect a woman's right and access to health care. so when it comes to the right of prief is, i work hard to understand where our judiciary is coming from. and if it's for the next 30 to
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35 year, i guarantee you, these privacy rights are going to be of critical importance. in the long-standing precedent known as the chevron doctrine that judges should defer to reasonable agency interpretations of ambiguous statutory language, it allows agencies to give expert input from agencies on their decisions and regulations. by overturning this doctrine, it could make it easier for courts to challenge important agency's decisions protecting health and the environment. this is also important to my state, having fought the enron case and making sure that the federal energy regulators did their job in protecting the ratepayers of washington from, at the time, what was in my opinion a violation of the federal power act on just and reasonable rates. we had to go to a great extent to make sure that the agency's
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decisions were inputted and considered to make sure that we didn't become the deep pockets. so making sure that this doctrine was continued and not overturned, judge gorsuch concluded that chevron v. the natural resource should be overturned. so i find this record troubling. also, yesterday was equal pay day and a lot of discussion about how women still face unequal wages. what would judge gorsuch do about equal pay? as a professor, he told his students that women manipulate family leave policies for their own benefit. as a judge, he recently ruled against women -- he frequently ruled against women and their rights. in the hobby lobby v. sebelius, a privacy held company in which was a store chain challenged the
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affordable care act and the birth control benefits. the affordable care act required health insurance plans to provide women with birth control coverage with no cost-sharing. judge gorsuch joined the tenth circuit majority holding that an employer's religious beliefs could override an employee's right to birth control coverage. judge gorsuch also supported an effort to defund planned parenthood as an important provider of women's health. in the planned parenthood association of utah v. herbert, the tenth circuit upheld an injunction to prevent the then-governor of utah from defunding planned parenthood. however, judge gorsuch senior senator dented -- judge gorsuch dissented and pushed for a rehearing of this case by the full court. judge gorsuch has had a narrow interpretation of the law as it has meant to protect workers against discrimination. in another case, a worker
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alleged she had been unlawfully discriminated against based on gender because she took two weeks of leave under the family and medical leave act. she claimed that her employer had to -- had a higher performance standard than her male coworkers and the tenth circuit ruled in her favor. however, judge gorsuch dissented, arguing the evidence of sexual discrimination was entirely absent. these issues and rulings make me concerned about his judicial philosophy as it relates to what now i believe has been accepted standard. judge gorsuch also has ruled against lgbtq individuals seeking fair and nondiscriminatory treatment, lamda and other groups have called his rulings openly hostile towards the lgbt people.
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gorsuch held that a trans-woman's constitutional rights were not violated, citing the absence of any medical evidence. and as many of my colleagues have talked about, that judge gorsuch has had a pattern of ruling against the little guy. my colleague from hawaii noted he seems to favor corporate interests over the workers' rights and private interests over public interests. judge gorsuch took the outcome of many of these cases which have been cited frequently since his nomination, but probably none more than the case in the individuals with disabilities education act, but i think it's so important that it needs continued to be talked about. this case, which was recently rejected by the u.s. supreme court, said gorsuch -- that it limited the opportunities for children with disabilities.
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gorsuch had concluded that to comply with the law, the school's responsibility to the student was to make progress that was merely no more than de minimis. that is to say that those children, our education system -- in our education system who have special needs, you a cities particular needs through our -- autistic needs through our education system to make progress that it could be no more than de minimis. this ruling impacts hundreds ever thousands of students all over america, including in the state of washington. he wrote the majority opinion and used the word "merely." i asked judge gorsuch about this because of the cases i mentioned earlier on federal energy regulators and the fact that we needed strong anti-manipulation laws and we needed people to interpret the standards to make sure that they were upholding the interests of the public.
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so we had quite a long discussion about this. the notion that judge gorsuch was bound by a previous decision but the previous decision was not based on that standard. so i don't believe that judge gorsuch's decision, which was then overruled by the supreme court, kept him bound by that decision. i know some of my colleagues have also noted this, but when justice roberts wrote the unanimous opinion rejecting these "merely more than de minimis" standards, that judge gorsuch had used to limit the access, justice roberts said, quote, when all is said and done, a student offered an educational program providing
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merely more than de minimis progress from year to year can hardly be said to have been an effective education at all, end quote. on this point, i agree with the chief justice. i have great concerns that not having a deeper understanding about his judicial philosophy, my great concerns for the right to privacy issues that will remain constant in our society -- i guarantee you -- for the next 30 years and these issues of standards that are so important. i cannot support in nomination nor support cloture to move ahead. i thank the president, and i yield the floor. the presiding officer: the clerk will call the roll. quorum call:
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mr. franken: mr. president? the presiding officer: the senator from minnesota. mr. franken: mr. president, i ask that the quorum call be vitiated. the presiding officer: without objection. mr. franken: thank you, mr. president. mr. president, before i begin my remarks on judge gorsuch, i just
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want to take a minute to talk about the chemical attack in syria. words cannot describe these vicious attacks against civilians. we have all seen the horrific footage. many of these victims were children. these are innocent men, women, and children, mr. president, who through no fault of their own are caught in the middle of a bloody civil war. stuck between a brutal regime, armed groups, and foreign powe powers. my heart goes out to the victims and their families. mr. president, the world has come together and unequivocally
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condemns these acts and their perpetrators. we must work together to find a path toward peace and stability in syria, and the united states must take a leadership role in that effort. now i will turn to my remarks. mr. president, i rise in opposition to the nomination of judge neil gorsuch to serve as an associate justice on the united states supreme court. after meeting with the nominee, carefully reviewing his record, and questioning him during his confirmation hearing, i've come to the conclusion that elevating judge neil gorsuch to the supreme court's bench would merely guarantee more of the same from the roberts court, a sharply divided, already
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activist court that routinely sides with powerful corporate interests over the rights of average americans. mr. president, i think it's important to start by acknowledging just exactly how it is that judge gorsuch came to be before the senate, namely, this body's failure to fulfill one of its core functions. immediately following the death of justice scalia, in a move as cynical as it was irresponsible, senate republicans announced that they would not move forward with filling the vacancy until after the presidential election. before president obama had even named a nominee, the majority leader said, quote, the american people should have a voice in the selection of their next
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supreme court justice. the only problem with the majority leader's reasoning was that the american people did have a voice in the decision. they had voted to make president obama president of the united states. nonetheless, republican members of the judiciary committee gathered behind closed doors and vowed to deny the eventual nominee a hearing. many republicans refused to even meet with the nominee. they said it didn't matter who the president nominated. they said this was about principle. but senate republicans had a difficult time justifying their obstruction. that is until they decided to
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mischaracterize a speech delivered by former judiciary committee chairman joe biden in june of 1992. in that speech, then-senator biden discussed the possibility of a supreme court justice -- this is in june of 1992 -- the possibility of a justice resigning in election year in order to ensure that a president of the same party could name a replacement. under those circumstances, he said the president should refrain from nominating a replacement and the senate should not hold confirmation hearings until after the election. my republican colleagues seized upon this portion , the small portion of senator biden 's speech and
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dubbed it the biden rule. chairman grassley said the senate ought to abide by the biden rule, which he said holds that there are, quote, no presidential supreme court nominations in an election year. the majority leader said, quote, as chairman grassley and i declared the senate will continue to observe the biden rule so that the american people have a voice in this momentous decision. so in order to justify a truly unprecedented act of obstruction, my republican colleagues pointed to the so-called biden rule. and said they were standing on principle. that was the principle. but my republican colleagues chose to overlook a few important details. first of all, the
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scenario senator biden described in his 90-minute speech was not the situation that our country faced last year. no one strategically resigned last year. a justice died. no one dies to game the system. and second, my republican and, most importantly, my republican colleagues ignored the actual point that senator biden made in that speech. if they had bothered to read the entire speech speech -- or i expect they actually had debaters they -- they actually had, they would have found that further down senator biden said, quote -- and this is important. this is what senator
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biden said in the speech that was used as the justification not to take up merrick garland. senator biden said in that speech, quote, if the president, then george h.w. bush, if the president consults and cooperates with the senate or moderates his selections absent consultation, then his nominee may enjoy my support as did justices kennedy and souter. allow me, mr. president, to dwell on that for a moment. senator biden said that if a supreme court vacancy arose during an election year and the president consulted with the senate or absent consultation, put forward a moderate consensus candidate,
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that that candidate should enjoy the support of the judiciary committee's chairman. that's the biden rule. that's the biden rule. if senate republicans had actually followed the biden rule, we wouldn't be here today. merrick garland would be sitting on the supreme court bench. of course, over the past few days i've heard my republican colleagues announce democratic opposition to judge gorsuch by claiming that there never has been a partisan filibuster of a supreme court nominee. but, mr. president, if the shameful and unprecedented obstruction that republicans used to effectively block president obama from appointing a supreme
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court justice wasn't a partisan filibuster, then i don't know what is. now perhaps my republican colleagues were concerned that president obama would seek to replace justice scalia, reliably conservative member of the court with a jurist whose view would place him or her on the opposite end of the ideological spectrum. that seems to be a concern that my good friend senator hatch expressed when he said, quote, the president told me several times he's going to name a moderate. but i don't believe him. president obama could easily name merrick garland, who is a fine man. he probably won't do that because this appointment is about the
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elections, and i'm pretty sure he'll name someone the democratic base wants. but as it turns out, in recognition of the forthcoming election and the republican-controlled senate, president obama did exactly what then-senator biden and what former senator biden had said a president should do. he named a moderate consensus candidate. he named merrick garland. judge garland was supremely well qualified for the job. here's a guy who was his high school valedictorian, who attended harvard college on a scholarship, won clerkships with legal legends like second circuit judge henry friendly and supreme court justice william brennan. and left a partnership
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at a prestigious law firm to become a federal prosecutor during the george h.w. bush administration. he later joined the justice department where he prosecuted the men responsible for bombing the oklahoma city federal building in 1995. and he kept in touch -- merrick garland kept in touch with the survivors and the victims' families. and that's the reason why one of the very first republicans -- there are three announced at one time. one of those three, the first three agreed to meet with judge garland with senator jim inhofe of oklahoma, a staunch conservative, because the people of oklahoma
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had such regard for merrick garland. after judge garland was confirmed, the d.c. circuit in 1997, he earned a reputation for working with his colleagues from across the ideological spectrum to identify areas of agreement and to craft strong consensus opinions, often reciting a case on the n.r.a. -- on the narrows grounds possible. judge garland was the right choice at the right time. he wasn't a partisan warrior or a partisan animal, a political animal. he was a judge's judge, and everyone knew it. that's why my republican colleagues had to hide behind new and misleading so-called rules in order to deny him a hearing and a
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vote. judge gorsuch is no merrick garland. judge gorsuch is a creature of politics. that's not what judge gorsuch told me when i met him earlier this year. i asked judge gorsuch if he is bothered by the way the senate treated merrick garland, and he responded by telling me, he said i try to stay away from politics. but documents that the judiciary committee received from the department of justice, including e-mails, between judge gorsuch and bush administration officials show that judge gorsuch was very heavily involved in politics. a resume that he sent to president bush's political director in november of 2004 back when judge gorsuch was looking for a job details his work on
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political campaigns dating back to 1976 and highlighted an award -- an award he had received from senate republicans for his work to advance president bush's judicial nominees. ken melman, the former chairman of the republican national committee, later recommended judge gorsuch for a post at the justice department, described him as, quote, a true loyalist. now understand, being politically active or being a republican are not disqualifying characteristics in a supreme court nominee, at least not in my book. but judge gorsuch's character is relevant here because contrary to what he told me his resume establishes that he's not just intimately familiar with politics.
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he knows the politics of the judicial nominations process. he knows it well. and let me explain why i think that is important. during the campaign, then-candidate trump spoke openly about his litmus test. what kind of judge he would appoint to fill justice scalia's seat on the court. he said he would, quote, appoint judges very much in the mold of justice scalia. during the final debate he said, quote, the justices that i'm going to appoint will be pro-life. they will have a conservative bent. now part of the reason that then-candidate trump could say that with such conviction is because he had already outsourced the job of coming up with a list of potential nominees to
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the federalist society and the heritage foundation, both right-wing organizations. the groups produce a list of 21 conservative judges for then-candidate trump. the a list that included judge gorsuch and presumably the federalist society and the heritage foundation knew something about the judicial philosophy of the men and women that it had decided to include on that list, given judge gorsuch's previous work to push judicial nominees through the senate, i'm sure he knew a thing or two about the heritage foundation and the federalist society. in fact, judge gorsuch first learned that he was under consideration for the vacancy from the federalist society's vice president, who was working with the transition team. judge gorsuch went on to interview with a host of other members of the transition team,
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including now white house chief of staff reince priebus and senior strategist stephen bannon. weeks later, after president trump had officially nominated judge gorsuch, both mr. priebus and mr. bannon appeared before right-wing activists at cpac and talked about his nomination. mr. priebus told the crowd that a justice gorsuch would bring about, quote, a change of potentially 40 years of law. a change of potentially 40 years of law. he said, quote, judge neil gorsuch represents the type of judge that has the vision of donald trump, and his nomination fulfills the promise that he made to all of you, gesturing to
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the crowd of conservative activists. so, whether mr. priebus was suggesting that, if confirmed, judge gorsuch would unsettle 40 years of precedent, like roe v. wade or chevron, or whether he was suggesting that judge gorsuch would be reliably -- a reliably conservative vote for the next 40 years, it seemed clear -- it seemed clear to me that confirming judge gorsuch is central to president trump's political agenda. now, my republican colleagues would have you believe that nothing could be further from the truth. in their view, they say judges call balls and strikes, nothing more, nothing less. earlier this week, for example,
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senator cruz said -- and i quote -- conservatives understand that it is the role of a judge, especially the role of a supreme court justice, simply to follow the law. he said that senate republicans, quote, are not confirming someone who will simply vote with our team on a given issue. it's democratic judges, according to senator cruz, who, quote, by and large view the process as achieving the result they want and view the process of adjudicating a case as a political process. mr. president, let me explain why i take issue with that. if my republican colleagues truly believe that a judge's proper role is to call balls and
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strikes and to decide cases narrowly, they would have confirmed merrick garland, a judge with a proven track record of crafting consensus opinions built on narrow holdings. but a judge who calls balls and strikes isn't really what my colleagues want. contrary to what senator cruz said, my republican colleagues, what they want is a result results-oriented judge. why else would they hold open a seat on the supreme court bench? why else would they turn to the heritage foundation and the federalist society for candidates? why else would they trample on the traditions of the senate? what my republican colleagues really want is a judge who will vote with their team, and that's
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the judge they'll get by confirming neil gorsuch. that's what this is all about. that's what this is about. unlike merrick garland, judge gorsuch has little interest in deciding cases lightly. he pointed out that the tenth circuit ruled unanimously 97% of the time and that he was in the majority 99% of the time. but that's not unusual, and it doesn't provide any insight into his approach to being a judge. after all, the court of appeals are required to follow supreme court precedent, and in all the circuits around the country, the vast majority of their cases are decided unanimously.
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so in order to really understand judge gorsuch's approach to deciding cases, in order to really understand how he views the law, it is critically important to look at the cases where he chose to write separate concurrences or dissents. these concurrences, these concurring and dissenting opinions offer the clearest window into how he really thin thinks. judge gorsuch tends to write a lot of concurring and dissenting opinions. even when judge gorsuch agrees with the majority and joins their decision, he frequently writes his own concurrence, setting out his own views. judge gorsuch has done this 31
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times, including writing two concurrences to majority decisions that he himself had written. that's not seeking out consensus; that's holding his nose to join a consensus opinion and then writing separately in order to point the way to broader, more sweeping rulings that other courts might issue in future cases, other courts like the supreme court, which doesn't have to follow precedent and which he is now poised to join and where he will not be restrained by precedent. judge gorsuch is a result results-oriented judge, and his record demonstrates that he
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approaches cases with a very specific outcome in mind. contrary to what my republican colleagues would have you believe, he doesn't hide that judicial philosophy, whether it is his concurrence in hobby lobby or his dissent in trans am trucking, judge gorsuch wears that philosophy on his sleeves and it only underscores a disturbing pattern of sidin sidg with corporate interests over average americans. now, that philosophy was on full display in the dissent that judge gorsuch wrote in trans am trucking. it seems clear to me that judge gorsuch approached this case with a specific outcome in mind, which was siding with a company over a worker. and in order to justify that
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outcome in his dissent, judge gorsuch twisted himself into a pretzel. you may have heard the story, but i want to lay it out as efficiently as possible because i think it reveals a great deal about judge gorsuch's philosophy and helps to explain exactly why i am voting against him. in this case, truckerrer alphonse maddin is driving a rig on the interstate through illinois. he's pulling a long trailer that's fully loaded. he makes a stop, takes a break. at 11:00 p.m. he is bea to pull back -- he's about to pull back onto the interstate but discovers that the breaks on his
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trailer are locked. it's 14 below zero out. these brakes are literally frozen. so he calls his dispatcher to ask for repairs, and he waits. while he's waiting, the heater in his cab stops working, and he falls asleep. he is awakened by a call from his cousin. what maddin sits up to answer the phone, he realizes that his torso is numb and that he can't feel his feet. he's having trouble breathing, trouble breathing. his cousin later says that maddin's voice is slurred and he wasn't tracking. according to the mayo clinic, these are all symptoms of
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hypothermia. maddin calls in to the dispatcher again. he's told to hang on. he says, i can't. his boss tells him he has two choices: wait there until the repair truck comes or he can take the whole rig on the road, including the trailer with frozen brakes. those are the two options, two options he's given by his boss. maddin knows that if he waits, he may very well freeze to death. that's his first option. or he can go out on the interstate at 2:00 in the morning dragging a fully loaded
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trailer with frozen brakes at 10, maybe 15 miles an hour max, posing a safety hazard to other drivers on the interstate. remember, it's 2:00 in the morning. it's dark. it's probably icy. imagine a car going 80, 85 miles an hour, as people do at 2:00 in the morning on an interstate, coming up over a hill behind that rig and then coming down and seeing this rig going 10 or 15 miles an hour while you're going 80, 85. that would be like suddenly coming down on a stopped tractor-trailer while you're going 70 miles an hour.
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that's his second option. instead, maddin does what any of us would do: he unhitches the trailer and drives down the interstate to find someplace warm. and he does, he gets warm. and then he returns to the trailer when the repair truck finally shows up, and he is fired. he's fired for abandoning his cargo. now, there is a law to protect people in maddin's situation, so he files a case, and it gets to the tenth circuit, and a three-judge panel agrees with him, with maddin. they find that the trucking company shouldn't have fired mr. maddin. but one judge dissented.
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judge neil gorsuch. so during my question, i asked judge gorsuch a very simple question: what he would do -- what he would have done if he had been the truck driver, if he had been driving that truck. which would you have chosen, which would you have done, i asked. and here's judge gorsuch's response: oh, senator, i don't know what i would have done if i were in his shoes. now, is there anyone here who would not have done what that driver did? i don't think so.
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of course you would unhitch the trailer to find someplace warm as quickly as possible. of course. but judge gorsuch said he didn't know what he would have done? is that possible? i asked him if he even thought about what he would have done if he were maddin. he had heard the case. he didn't answer, so i asked him again. i asked him given the choice of sitting there and possibly freezing to death or going on the road with an unsafe vehicle or doing what mr. maddin did, judge gorsuch responded, senator, i don't know. i wasn't in the man's shoes.


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