tv Senate Debate on Supreme Court Nominee Senators Reed Through Wicker CSPAN April 7, 2017 2:02am-2:40am EDT
write the lay. the executive branch is to carry them out. the judicial branch is to interpret the laws. and the confirmation of judge gorsuch will shape our nation for generations to come and all of us will be able to benefit if his wise decisions. i'm looking forward to confirming judge neil gorsuch. it's going to happen tomorrow. all this will be over. and i'm proud to give him my vote. and justice will be floor. a senator: mr. president? the presiding officer: the senator from rhode island. mr. reed: mr. president, the senate has decided on a purely partisan basis by invoke be the so-called nuclear option. for the first time in our history, nominees to the supreme court of the united states may advance from nomination to confirmation with a simple majority vote in this body. and i've heard many of my colleagues ascribe blame equally to both sides, and i'm -- and
i've heard analysts and experts say the same. -- scholars like nor man oren seen and thomasman of the brookings institute have demonstrated that our political polarization over the last several years and hence our current impasse has been driven predominantly by the ever more conservative ideology of the republican party. regardless, here we are. the gorsuch nomination lacks the traditional level of support required for a supreme court seat, and the majority leader has chosen a step that democrats clearly and emphatically rejected when we needed to confirm nominees who had brought -- broad support but were blocked because they were submitted by president obama. i had hoped it was not too late for cooler heads to prevail. unfortunately, adherence to the principle of 60 votes for consideration as a justice of
the supreme court and indeed the existing rule in the senate was ignored and we are at this impasse. since many have drawn a false equivalence between the so-called nuclear option vote of several years ago and what occurred today, let me take a moment to explain from my part why i very reluctantly supported a change to senate precedent for nominees other than the supreme court in 2013. during president obama's hen tenure, republicans necessitated more cloture votes that were taken under -- than were taken under every previous president combined. let me republicans necessitated more cloture votes than any other previous president combined, from george washington to george w. bush.
republicans demanded cloture votes 79 times over five years. in contrast from the founding fathers all the way through george w. bush, the senate only faced that situation 68 times. republicans obstructed obama nominees more in five years than the senate obstructed all nominees combined in two centuries. after a nominee would break through, republicans often would vet overwhelmingly to confirm the very nominee they adamantly delayed. tches clear the sole -- it was clear the sole guiding principle was obstruction and delay. obama nominees had the longest wait time. president obama tied with president clinton for tt fewest number of circuit court nominees confirmed during that same
period. all that time, judicial vacancies stacked up, critical public service roles went unfilled and the american public regarded congress as a place where nothing of substance could occur. it was under those dire and unprecedented circumstances that i reluctantly changed the rules, very consciously excluding the supreme court which at that time was, i think recognized as appropriate by all my republican colleagues. but there really is no equivalence between that decision and what the majority did today. even in 2013 at the height of the partisan attacks, it was believed that the supreme court was too much to subject that nomination. the supreme court is a coordinate branch of our
government and lifetime appointees have final authority to interpret the constitution. we understood then as we do now that the traditional 60-vote threshold to conclude debate on the highest court in the nation was too important to the consensus driven character of this body to sacrifice. i think we also have to acknowledge that a president has already nominated a consensus choice capable to earning 60 votes to a seat on the court and that nominee was chief justice merrick garland. the unprecedented treatment he received from the majority has made this the most infamous supreme court nominations in american history. it is all the more disconcerting that he was witnessed to being treated poorly. i have already addressed this
body about my deep concerns regarding judge gorsuch's judicial record of ideological activism and championing the powerful over the powerless, but it is worth going into detail on one of his opinions that is emblematic of this and has come to the floor. in 2008 judge gorsuch heard what is referred to as the luke p. case. in that case the parents of an autistic child sought reimbursement from the school district because the school had not provided adequate acome indication -- accommodations for the child under the individual with disabilities act. the case presented heart-wrenching facts. the child, luke, experienced severe behavioral issues in public and at home. his parents sought advice from the best sources to create the
best atmosphere for him to make progress in school. ultimately theying recognized that the -- they recognized that the public school that luke attended could not provide the type of atmosphere by the law for luke. they placed him in a different school setting. luke's parents exercised their rights under i dea and the colorado office of administrative costs and a federal district court all agreed the law entitled them to reimbursement from the school district. this should have been the end of the matter, but when the school district appealed the case to the tenth circuit, judge gorsuch's decision reversed all of these fact finders to hold in favor of the school district. in order to reach his conclusion, judge gorsuch went to great lengths picking and choosing passages from previous
decisions to weave a new standard that eviscerated the intentions of i dea. this ignored intent and created a new outline that schools had to provide de minimis or in plainer terms to provide almost zero opportunities for children with disabilities. this would force luke into an inadequate learning development and leave his parents with another financial burden and hardship. at the same time judge gorsuch's legal standard threatened to degrade education for all students with disabilities. the good news for luke is that the supreme court seriesed judge gorsuch's position ironically during his confirmation hearings. the nays has been spared the potential harm that could have
resulted from lowering expectations from schools nationwide and leaving families like luke's without sufficient recourse. yet, as my colleague and i pointed out, at every turn of this confirmation process, this is far from the only decision by judge gorsuch that is widely outside the mainstream of jurisprudence. he has not and was not intended to be a consensus nominee to fill the vacancy on the supreme court. it should not come as a surprise that this body is divided over his nomination to the highest court in the land and that judge gorsuch could not earn enough support under the traditional 60-vote threshold. the filibuster was intended to be an institutional safeguard that protects the minority. it should be equally apparent that in this circumstance the filibuster did its job, a large minority of this body viewed
judge gorsuch as too extreme for the supreme court and that minority blocked cloture on his nomination. there was no national emergency, no danger, no serious consequence whatsoever that prevented the majority from work -- from reversing course and working with democrats. in one day the majority has lessened the distinction of our chamber and that across the capitol, opening the door to an even more polarized judiciary. i regret that this is the case and i hope this body can turn be suspended. the presiding officer: without objection, so ordered. mr. grassley: mr. president, we're now well on our way to confirming judge gorsuch as the next justice of the supreme court. now, i have a few things to say about the way that we've gotten here. earlier today the other side,
meaning the democrats, made a very unprecedented break with senate history and with senate tradition. they launched the first partisan filibuster of a supreme court nominee in our nation's history. for our part, we republicans insisted that we follow the practice of the senate. we don't engage in partisan filibusters of supreme court nominees. yesterday i came to the floor to speak about the path that brought us to this point as i discussed way back in 2001 -- referring to the year 2001, the current minority leader and some of his allies on the far left hatched a plan to, in their words, change the ground rules
with regard to lower-court nominees. i noted a "new york times" article describing the democrat senatorial caucus retreat where the new approach to nominees was discussed. in other words where they discussed the strategy for changing the ground rules of how judges are considered by the united states senate. and so, mr. president, i want to put that in the record, may 1, 2001, "new york times" article entitled "washington talks, democrats readying for a judicial fight. ". the presiding officer: without objection. mr. grassley: thank you. after a brief time in the majority, senate democrats were back in the minority in 2003.
so approximately two years after they had this strategy. it was at that time the senate democrats began an unprecedented and systemic filibusters of -- systematic filibusters of president george w. bush's circuit court nominees. then the tables turned. president obama was elected and republicans held the senate minority. at that time, even though many of us didn't like the idea of using the filibuster on judicial nominees, we also recognized that we couldn't have two sets of rules, one for republican presidents and one for democrat presidents. our party defeated two nominees for the lower courts by filibuster and denied cloture to
two -- to three of president obama's nominees to the d.c. circuit court of appeals. but the other side didn't appreciate being subjected to the rules that they first established -- started using in 2003 to filibuster judges, so at that point in 2013, they decided to change the rules of the united states senate. by the way, they changed -- they changed the rules by breaking the rules. and i say that because the rules of the senate say it takes two-thirds vote to change the rules of the senate, but they
changed it by a majority vote. now, at that time, as we all know, majority leader reid changed the rules for all cabinet nominations and lower court nominees. to say that my colleagues and i were disappointed is a gross understatement. the majority claimed that they left intact the filibuster for supreme court nominees, but my view back in 2013 when they did that was the distinction majority leader reid grew between lower court nominees and supreme court nominees wasn't a meaningful one. my view in 2013 was that majority leader reid had effectively eliminated the filibuster for both lower court nominees and the supreme court.
and here's the reason. there are two circumstances where this issue might conceivably arise. either you have a democrat in the white house and a democrat-controlled senate or where you would have a republican in the white house and a republican-led senate. in the first, there's a democrat in the white house, and the party led by leader reid and leader in waiting schumer was in the majority, and if for some extraordinary reason senate republicans chose to filibuster the nominee, there is no question that a majority leader reid or a majority leader schumer would change the rules. now, i don't believe that this particular circumstance would ever arise because our side
doesn't believe in filibustering supreme court nominees. i have never voted to filibuster a supreme court nominee, not once, and i think i have a pretty good sense of the rest of our caucus. our side just doesn't believe in it. it's not much more complicateed than that simple commonsense statement i just made. and of course even if for some extraordinary reason our side did choose to filibuster a supreme court nominee, we don't have to speculate as to whether the other side would have changed the precedent with respect to the supreme court. last year, when everyone thought that secretary clinton was going to win the election, their own vice-presidential candidate said that they would change the rules
if they needed to if we had a republican filibuster. then, of course, the other circumstance where this issue would arise is what we have is what you have seen this very day, a republican in the white house and a republican-controlled senate. and we saw this very day the minority was willing to take that last step and engage in the first partisan filibuster in u.s. history, and as i have repeatedly discussed because they were willing to do it hueneme as well qualified as judge gorsuch, it proved without a shadow of a doubt that they would filibuster anyone submitted by this republican president. that's why on the day that
majority leader reid took that unprecedented action in 2013 to break the senate rules, to change the senate rules, i spoke on the floor and i concludeed my remarks this way, so i want to quote myself. quote -- so the majority has chosen to take us down this path. the silver lining is that there will come a day when the roles are reversed. when that happens, our side will likely nominate and confirm lower court and supreme court nominees with 51 votes, regardless of whether the democrats actually buy into this fanciful notion, that they can demolish the filibuster on the lower court nominees and still preserve it for the supreme
court nominees, end of my quote from november, 2013, when leader reid took that extraordinary step. so although i'm extremely pleased that we'll confirm such an exceptional nominee to the supreme court in the next day or so, i'm of course disappointed with what we were forced to do to get it done, and sadly i can't say i'm surprised, and i think my surprise or the fact that i can't be surprised, you can tell it from what i said back there, what i just quoted from 2013, the speech that i gave. i knew when majority leader reid did it in 2013 that this is where we were headed, and that's where we ended earlier this afternoon. but the bottom line is that you can't have two sets of rules.
you can't clothe yourself in the tradition of a filibuster while simultaneously conducting the first, very first partisan filibuster of a supreme court nominee in history. you can't demand a rules change only when it suits the democrat members of this body. you just can't have it both ways. you can't use the senate rules as both a shield and a sword. but i must say the one thing that doesn't disappoint me is this -- the nominee to take justice scalia's seat is eminently qualified. he will apply the law faithfully without respect to persons. he's a judge's judge, and come sometime tomorrow, we'll all
startded. the presiding officer: without objection. mr. wicker: mr. president, i rise to express my strong support for judge neil gorsuch and to say i will proudly vote in favor of his confirmation tomorrow and to express my confidence that history will judge this nominee to be an outstanding associate justice of the united states supreme court. i hope he serves a long and distinguished career and i believe he will. i think justice neil gorsuch will turn out to be a credit to the supreme court, to the president that nominated him, and to the senate that will confirm him tomorrow. it's unfortunate that we've had quite a bit of discussion about
procedure and the process that has gotten us to this vote which will take place tomorrow afternoon. indeed, i had a conversation with one of my democratic colleagues yesterday afternoon as we were leaving the capitol building. this is a person with whom i've worked on issues and for whom i have a great regard, and i asked him how he was doing and he said, well, okay. i'm just getting ready for the united states senate be forever changed. and i paused for a moment, and i said, you know, how can it be that two reasonably intelligent senators of goodwill can look at the same factual situation and see it so differently.
and i think my colleague did agree that, indeed, that's the situation that we have with what led us to our proceedings today. and, indeed, i do believe that my colleagues on the other side of the issues today, the procedural issues today, are people of goodwill who are trying to do the right thing by their country just as i have been in this -- on this issue. but let's look, first of all, at the candidate himself and then i might take a moment or two to talk about what we have already done, that decision that has been made. but let's talk about neil gorsuch, about this outstanding future supreme court justice who i believe will be sworn in either tomorrow or the next day. is neil gorsuch qualified?
really, can anyone contest that he is highly qualified, perhaps one of the most qualified people to ever to have been nominated by a president for the high court. he has degrees from columbia, harvard law, from oxford university. he has received the american bar association's highest rating, the gold standard that we look at when it comes to judging nominees for the federal bench up to and including the high court, and he served for ten years with distinction on the tenth circuit court of appeals. and so, clearly, he's got the qualifications and clearly he is among that group of qualified individuals that the president promised to look at back during the campaign. and promised to send that type
of individual over to the supreme court. so i -- i really don't think there's much that can be said to contradict the fact that neil gorsuch is qualified and highly qualified. so now let's ask is neil gorsuch somehow out of the broad judicial mainstream? and again, i think it is clear that based on his history, based on his testimony and based on his rulings up until now, he is part of the broad judicial mainstream that will put him in good company on the supreme court and makes him a worthy successor to justice scalia. he's -- first of all, he's earned the praise of both
conservatives and liberals. he's even won the endorsement of president obama's former acting solicitor general who wrote in "the new york times", quote, if the senate is to confirm anyone, neil gorsuch who sits on the united states court of appeals for the tenth circuit in denver should be at the top of the list. so thank you to the former acting solicitor general for going beyond ideology and political philosophy and saying a true statement that judge gorsuch is outstanding and should be at the top of the list. editorial boards across the country have touted judge gorsuch's credentials and temperament.
"the denver post," his hometown newspaper, wrote an editorial praising his ability to apply the law fairly and consistently. and of course there has been newspaper after newspaper from the right and left across this country who come down on this side of the issue saying that judge gorsuch should be confirmed, but let's look also -- and this has been pointed out so often that you wonder if you should say it again, mr. president, but this judge, judge gorsuch on the tenth circuit has participated in 2,700 cases. he's written over 800 opinions and has been overruled by the supreme court one time. is this a judicial radical? i think not. i think this is someone that is
demonstrated to be in the judicial mainstream. one reversal by the supreme court out of 800 written decisions and 2,700 votes cast on panels with the tenth circuit. he's almost always been in the majority, some 99% of the panels he served on, he was in the majority of those opinions and 97% of those decisions were unanimous. so this is hardly some radical pick as some might have suggested. now, has the process been unfair? and we've heard a lot about this. a lot of my dear friends on the other side of the aisle feel aggrieved for sure. they feel that judge garland, the nominee of president obama
in 2016 was treated unfairly. and i would simply make this observation and the american public can decide if this was unfair. this is a vacancy that came up during a heated, hotly contested presidential year. and there is really no doubt that under similar circumstances, had the roles been reversed and had a republican tried to nominate a nominee in the last year of his eight-year term, that a democrat majority in the senate would have done exactly as we did. and i'm not guessing when i say this, because the democratic leaders of previous years have said as much. no less than joe biden who was a former chairman of the judiciary
committee, later on became vice president for eight years, no less than joe biden said exactly the same. it almost became the biden rule. republican presidential nominees taken up during the final year of a term will not be considered by a democratic senate. and so the shoe was on the other foot and we acted the same, so we'll leave it up to the american people to decide whether judge garland was treated unfairly. i do not believe he was. as a matter of fact, i felt very comfortable, mr. president, during 2016 saying who fills a supreme court seat is so important, such a significant and long-lasting decision that the american people deserve to be heard on this issue, and i felt comfortable making the presidential election largely about what the supreme court
would look like in coming years. and there's no question about it. the american people got to decide in november of 2016 whether they would like a judge in the mold of justice scalia, whose seat we were trying to fill, or would they like a judge in the mold of judge garland, who president obama was seeking to put in place. the -- so i make no apology for saying to the american people you get to decide in this presidential year what sort of supreme court you want, and the american people made that decision, and i'm comfortable with that. i was asked today by several members of the press about the change in the rules, that i voted for today. it's not a situation that makes
me overall joyed. it's not my idea of a good time to overrule a precedent and to substitute another one in its place. you'd rather not do that if you're a united states senator. but the fact is that it puts us back into a place that we were for 200 years in this republic. from the beginning of this congress -- of this senate, 1789, through 1889, through 1999, up to and including three, there was no filibuster -- including 2003, there was no filibuster at all on supreme court justices. there was no partisan filibuster at all on supreme court justices. and no judge had ever been
denied his position because of a partisan filibuster. at any level. federal judge, circuit level or supreme court. that changed in 2003, and with the miguel estrada nomination, our democrat friends stopped a qualified judge from going on the federal appeals court. that was the beginning of an unfortunate 14-year experiment in judicial be filibusters. it's not a filibuster that i think this -- it's not a precedent, it's not an experiment that i think this senate can be very proud of. but it took place over a relatively short period of time over 14 years, and it ended today. as of today, the united states
senate is back where it was for over 200 years in the history of this senate and the history of our republic, without the ability to stop a judge on a partisan filibuster. and in fact this fact cannot be contradicted. there has never been in the history of our country, even in this past decade and a half of having the possibility of a supreme court filibuster, there's never been a supreme court nominee in the history of our republic stopped by a partisan filibuster. and today, that 225-year or so precedent would have ended had
we not acted to change the rules back to where we're back to fundamental principles. and i was not willing to see judge neil gorsuch be that first nominee stopped by a partisan filibuster, in the history of our country. i was simply not willing to do that. so we now must proceed to the rest of our business. we will confirm judge gorsuch tomorrow. i think he will serve well, and then we've got work to do. we've got other nominees to -- to consider, and then we've got an agenda that we need to tend to for -- for our people. i'm nurnlgd, i think, by -- i'm encouraged, i think, by the exchange of first early steps of
goodwill after this divisive process. indeed, there was an article in one of our publications today that talked about a healthy feeling now in both caucuses, that we've got to put this procedural episode behind us, this crisis behind us and legislate. i'm glad to hear that sort of bipartisan talk coming from the other side of the aisle. another of my friends across the aisle said we're not looking for dilatory procedures. when there are things we can work together, we're looking for that. so i'm encouraged and i'm encouraged that even my friend who i was talking to yesterday afternoon will -- will conclude that we have not forever changed the senate in