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tv   U.S. Senate Set for Showdown Over Filibuster Rules Changes as Gorsuch...  CSPAN  April 5, 2017 10:00pm-11:29pm EDT

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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. judge gorsuch said he
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decides cases based on the facts and law alone. i go to the law, he said. but so in fact did the majority. here's the operable law. here's the law. quote, a person may not discharge an employee who refuses to operate a vehicle because the employee has reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition. the majority ruled that the company couldn't fire the truck driver because he refused to operate the rig, the entire rig because it was unsafe. but judge gorsuch said, no. by operating the cab, he was operating the
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vehicle. therefore, he didn't refuse to operate a vehicle. judge gorsuch said he made that decision by applying the plain meaning rule. now, i pointed out that the plain meaning rule has an exception, quote, when using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. it is absurd to say that this company was within its rights to fire him because he refused to choose between possibly dying by freezing to death or possibly killing other people by driving a semi on the
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interstate at ten miles an hour at 2:00 in the morning. frankly, the company is fortunate that mr. maddin made the choice he made, because otherwise they may very well have faced a wrongful death claim. now everyone who is in the hearing knows what judge gorsuch would have done in alphonse maddin's situation. if judge gorsuch had answered honestly, he would have said that he did exactly -- he would have done exactly, exactly what the driver did. everyone would. judge gorsuch just
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didn't want to admit it. that's because there's no good answer. if judge gorsuch said that he would do the very same thing that mr. maddint would make his dissent look pretty bad. but if he said i would have done what the company told me to do, that would be an absurd answer. that would make you question the man's judgment. no one would believe it. so instead, judge gorsuch said, i don't know what i would have done. but of course he knew. he just wasn't being honest. judge gorsuch approached
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mr. maddin's case with an outcome in mind. siding with the corporation. and the dissent that he wrote makes that perfectly clear. mr. president, when i joined the senate back in 2009, i arrived here in june, a little later than the rest of my class. and just a few days later, my fifth day in office, judge sonia sotomayor appeared before the committee, the judiciary committee, for her first day of confirmation hearings for the supreme court. i've been thinking a lot about justice sotomayor's hearings because the concern i expressed about direction, about the direction of the court
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back then is just as relevant as today. back then, almost eight years ago, i voiced concern about it becoming more difficult for americans seeking a level playing field to defend their rights and get their day in court. from bringing a discrimination claim, to protecting their right to vote. back then i said -- this is a quote -- i am wary of judicial activism, and i believe in judicial restraint. yet, looking at recent decisions on voting rights, campaign finance reform, and other topics there are ominous signs that judicial activism is on the rise. now that was my first opening statement, the first opening statement
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that i ever delivered in the first confirmation hearing that i ever attended. but in the years that followed, my concerns have proven to be justified. in one 5-4 decision after another, we have seen the roberts court go out of its way to answer questions not before the overturned precedents, to strike down laws enacted by congress, and to do all this at great cost to consumers and to workers, to small businesses and to middle-class americans. decisions like shelby county, where the court gutted one of our landmark civil rights laws.
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5-4. justice scalia in that, in oral arguments suggested that when the voting rights act passed 97-0 in the senate that the senate had done it because of the name -- voting rights act. how could you not vote against the voting rights act? what a great name. showing contempt for this body, what's more judicial active than overturning a law, voting unanimously in the senate because the
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senate just liked the name. and of course what that did was it got rid of preclearance. what's preclearance? preclearance said that those states who had had a history of suppressing votes of minorities had to preclear any of their -- anyg laws with the justice department. these were states that had historical -- historically had a history of suppressing the votes of racial minorities.
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well, that gets overthrown. boom, states like north carolina and texas start passing new laws, voter i.d. laws. the second section of the voting rights act stayed so you could appeal to a federal court. but it takes awhile to work its way through. so finally in early 2016 , the -- a circuit court, fourth circuit i believe, ruled that north carolina had targeted african americans with almost surgical precision to
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suppress their votes. that's why you have preclearance. that's why you want preclearance. but in a 5-4 vote, preclearance was struck down. that's one 5-4 case. concepcion, 5-4 decision that allows corporations to force consumers into mandatory arbitration. there are a whole host of 5-4 decisions that make it impossible for
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people to get to the courts. perhaps most egregious of all, the 5-4 decision, citizens united, another 5-4 decision that paved the way for individuals and outside groups to spend unlimited sums of money in our elections. in our elections. in each one of these 5-4 decisions, justice scalia sided with the majority. so now this body considers replacing him with judge gorsuch, and i think it's important to understand the extent to which he shares justice scalia's views. and judge gorsuch's record demonstrates that he is, in president trump's words, a judge, quote, very much in the mold of justice scalia. during his time on the
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tenth circuit, judge gorsuch has consistently ruled in favor of powerful interests. he's sided with corporations over workers, corporations over consumers, and corporations over women's health. a study published in the minnesota law review found that the roberts court, the most procorporate supreme court since world war ii and if the senate confirms him, judge gorsuch guarantees more of the same from the roberts court. and i don't believe that's a court that our country can continue to afford. so i oppose judge gorsuch's nomination. i urge my colleagues to take a close look at his record of siding with
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powerful corporate interests over average americans and consider carefully how he stands to impact the court and to reject his nomination. thank you, mr. president. and i would suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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quorum call:
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quorum call: mr. murphy: mr. president. the presiding officer: the senator from connecticut. mr. murphy: i'd ask that we dispense with the quorum call. the presiding officer: without objection. mr. murphy: thank you, mr. president. mr. president, confirming a supreme court justice, it's really one of, if not the most important responsibilities that we have as u.s. senators. it's a vote that we cast full well knowing that the tenure and the influence of the nominee that's before us will likely be greater and much more long lasting than our own in the senate. after meeting with judge gorsuch and reviewing
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hours of his testimony before the judiciary committee, i've decided to oppose his nomination, and i come to the floor this evening to talk about the reasons why. i'm deeply concerned about the politicization of the supreme court and its recent capture by corporate and special interests. i'm convinced that judge gorsuch would exacerbate that slide and continue the activist bent of the existing court. and for that reason, i won't be supporting him in the vote tomorrow. there's no doubt that neil gorsuch is a well-trained, very intelligent lawyer who likely has the right disposition to serve on our nation's highest court. but that's not the end of the analysis that i or any of us are required to conduct. i'm concerned by judge gorsuch's record of putting corporate interests before the
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public interests. his past decisions, they demonstrate a resistance on his part to put victims and employees' needs above those of large corporations. he's regularly sided with employers over workers, corporations' religious rights over the rights of employees to make personal health care decisions. and while he admirably claims to rest his decisions on the law rather than on political views, his consistent support of for the powerful over the powerless, it doesn't seem coincidental. the roberts court in my mind has swung dramatically in favor of the rights of corporations and special interests over those of individual americans. i would have supported a mainstream nominee, but the risk that judge gorsuch will inject his political judgment into a process that already too often favors the rights of special interests or corporations over the rights of individuals, it's just too great a
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risk. it's too great for him to earn my support. mr. president, that was the statement that i released upon making my decision, and i want to begin my remarks with it. but i want to talk a little bit about the elements inherent in my decision to vote against judge gorsuch, because i don't take that decision lightly. i've said all throughout the beginning of president trump's tenure that i do believe that we owe some degree of deference to a president in making choices as to who will serve him in his administration. i think that likely applies to the question of who a president chooses for the supreme court as well. i think i voted that way. i certainly voted against many of president trump's nominees. but i voted for many of them as well, nominees with whom i had very deep disagreements over
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policy. and so it's not a question of whether judge gorsuch would be my choice. it's a question of whether i think he is going to be in the mainstream on the supreme court or whether i think that he is going to be an outlier, bring potentially radical views into the courtroom. but it's kind of silly for us to pretend that this debate is happening in a vacuum. i'm making my mind up on judge gorsuch as i will try to outline this evening based upon my review of his record and my belief about who he will be as a justice. but we'd all be lying if we didn't say as democrats that we don't remember what happened on the floor of the senate all throughout 2016. merrick garland should be on the supreme court today. or if not merrick
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garland, someone else that was nominated by president barack obama. a supreme court vacancy occurred with nearly 12 months left on his term, 25% of a term that he was elected to by the people of the united states. the constitution doesn't allow for three-year terms. it doesn't say the president becomes illegitimate once he hits the final 12 months. the framers of our constitution, they were hopeful that a president would be president for all four years. that last year was robbed not just from president obama but from the american people by republicans in the senate, when they treated judge garland with such disrespect. it would have been one thing to simply vote against him because you didn't want to let a president of an opposing party fill that seat. but to not even give him a hearing, to not give
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him a vote, to not even take meetings with him, which was the decision of many republican colleagues, that was a show of disrespect to judge garland that i don't think any of us could have imagined. and it was a show of disrespect to this chamber, to the traditions of this body that those of us who may have supported judge garland, we remember. that bad taste still sits in our mouth. and so i'm clear to tell you that my vote against judge gorsuch is not payback for the way in which merrick garland was treated. but i remember what what happened. and to the extent that my republican colleagues are suggesting that we should vote for judge gorsuch, or at least vote for cloture tomorrow as a means of upholding the traditions of the senate, spare me.
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spare me. there isn't a lot of interest on this side of the aisle in upholding the traditions of the senate if we're the only ones doing it. i mean, some people say, well, if you voted for cloture on gorsuch tomorrow and let it go to a final vote, then maybe republicans would keep the rules as is. just as belied by the facts. last year the republican majority made it pretty clear that they were willing to break all tradition, all press dents and all comity -- all precedents and all comity in the senate in order to get their person on the supreme court. that wasn't just a 2016 thing. that is the new normal for republicans in the senate. and so whenever democrats raised an objection to a nominee
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to the supreme court, the rules were going to change because republicans have made it clear that their first priority is to get their people on the supreme court. and their second priority is to think about and try to preserve the way in which the senate has run. so i'm not voting against neil gorsuch because i'm mad about what happened. but to the extent that i've heard republicans in the senate lecture us about violating traditions of the senate, it makes my blood boil, because i was here in 2016. i saw what the republican majority did to merrick garland. and maybe we can sit down after this is done and talk about how the senate just doesn't get into a giant vortex of devolvement, tit for tat , such that all of the reasons why people
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run for the senate, the individual pejoratives that senators have, the demand to find consensus in a way that doesn't exist in the house, it all vanishes. merrick garland is still here, and it would be silly for us to try to pretend that he isn't. one of the reasons that i am so worried about judge gorsuch is because of his enthusiasm for a brand of judicial interpretation called originalism. it doesn't sound that radical; right? originalism. the idea is that you interpret the constitution as the founding fathers intended it to be. you don't place it in the context of today. you simply think to
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yourself what would those white men who wrote those words; what would they think about the case before us ?r -- what did they mean back in the late 1700's. on its face, it's an absurd way to think about judging cases because so much of what is before you as a justice had no relevance, did not exist back in the 17 80's. so questions about what these men thought about various questions regarding technology or civil rights, they are irrelevant because the framers of the constitution simply weren't thinking about
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the same things that we're thinking about today. and one of our most famous jurists, he understood this right from the outset. justice john marshall famously wrote in mcculloch vs. maryland, we must never forget that it is a constitution we are expounding intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. even those that were judging the constitution at its outset understood that as the questions presented to this country changed, originalism, the idea you only look to the thoughts and words and deeds of the founding fathers, probably wouldn't be an efficient way to decide cases.
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justice brennan gave a really wonderful speech at georgetown in 1985 that's worth reading from tonight. justice brennan said we current justices read the constitution in the only way that we can. as 20th century americans. we look to the history of the time of framing and to the intervening history of interpretation. but the ultimate question must be what do the words of the text mean in our time? for the genius of the constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. he further went on to say time works changes, brings into existence new conditions and purposes. therefore, a principle to be vital must be
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capable of application and the mischief which gave it birth. he says this is true of constitutions. they are not ephemeral they are designed to approach immortality as nearly as human institutions can approach it. he says interpretation must account for the transformative purpose of the text. the transformative purpose of the text. our constitution was not to preserve a preexisting society but to make a new one, to put in place new principles that the entire community had not sufficiently recognized. senator klobuchar asked justice gorsuch at his hearing if because the
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constitution only uses the word "he" or "his" if it meant that a woman could not be president. well, the constitution doesn't specifically speak to this question, but if you are an originalist, i can imagine how many of those founding fathers would have answered that question. why? because they didn't believe that women deserved the right to vote, so why on earth would they have believed that a woman should be president? at the time blacks were considered to be subhuman. they were granted three-fifths status in the constitution. they were slaves. and so to read a document only through the lens of a group of
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white males who didn't believe that a woman should be allowed to vote, didn't believe that blacks were human beings on equal footing with the rest of us is to freeze this document in a time and ask it to consequently freeze ourselves in that time as well. if you don't allow the document to move, then you don't allow the rest of us to move either. originalism is a fraud. and what it has become is a mask for policies. and what do i mean by that? when you insist on interpreting the constitution only based on the ways in which the writers of that document viewed the world, you have no way to base decisions in current times based
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on any real text or set of historical facts, because of course the founding fathers had given no thought to many of the most important questions that are presented to us today. for instance, questions about what rights individuals have with respect to government surveillance over their cell phones, a question that the founding fathers, the framers of the constitution could never have considered. and so it allows you to essentially make it up for yourself. because there is no way that you can find a quote from any of the signers of the constitution as to what they thought about these modern questions. so you can spin it any way that you need to. originalism is an invitation to bring politics into the court.
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because anybody can make up a reason why the people that wrote the constitution would ultimately have decided the way that that jurist wants the decision to turn out. and it connects with other troubling writings of judge gorsuch. he proudly calls himself an originalist which i would argue is not a mainstream -- historically, if we look at the broad swath of jurists who have sat on the supreme court, it is not a mainstream school of judicial interpretation. but he has other radical views as well. the chevron deference standard is named for a 1984 case in which the supreme court held that it should defer to regulatory agencies when they interpret ambiguous laws passed
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by congress. we pass ambiguous laws sometimes on purpose and sometimes by accident here, but we often do it on purpose because we ultimately leave it to the regulator to fill in the details, to proffer regulations, to work out the details of enforcement. we often don't define every single term, in part because we know that there is going to be an elected branch, the executive branch, people working for an elected official, the president of the united states, who is going to carry out that act and be ultimately responsible to the people. which -- what judge gorsuch has suggested is that maybe it's time to overturn the chevron deference standard. maybe we shouldn't give any deference to administrative agencies any longer. maybe the supreme court on every
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single law should do a de novo review of its constitutionality and give no deference to the executive branch. well, first of all, that would be pandemonium. it would greatly accelerate the number of cases that come before the supreme court and the number of major potentially life-changing decisions that the court, unelected court is making. why? because we are always passing statutes here that leave room for interpretation. again, we do it many times intentionally, sometimes unintentionally, but it happens every single month here that we passed statutes that leave room for interpretation. and we often do that knowing, as i said, that the executive will make some of those secondary interpretations, and we are comfortable with that because if their interpretation goes wrong,
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then that executive is nevermore than about three and a half years from an election. the executive branch is responsible for the people. the courts are not. these are lifetime appointments that we make. and if every single statute that we passed is interpreted from the foundation by the supreme court, if they get it wrong, there is no way to get rid of them. there is no way to roll that interpretation back. in fact, that's one of the reasons for chevron deference. the reluctance of the court to make itself an active political player in the process of interpreting statutes. and so it is radical that judge gorsuch is suggesting that if he was put on the supreme court he would overturn that 1984 case. justice scalia was one of the
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primary defenders of chevron. for that very reason. that he saw that the legitimacy of the court, indeed the legitimacy of the entire judicial system would be put in jeopardy if it inserted itself at the crierm -- as the primary arbiter of ambiguous statutes, of statutes that needed interpretation. originalism is an invitation to bring your politics onto the court. the evisceration of the chevron defense would inherently make the court a political body, and you combine the two together and you start to see a justice who will likely continue this trend line of an activist court making
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political decisions in substitute of the united states congress. and we all have seen it happen, whether it be in the voting rights case in which the unelected supreme court decided that racism wasn't something that we had to think about any longer due to their vast experience in the south dealing with cases of voter suppression, or their arbitrary decision that corruption should be very narrowly defined and that we need not pay attention to the slow, creeping corruption that happens when donors get access to the political process through donations of thousands and tens of thousands and hundreds of thousands and millions of dollars. the supreme court telling the
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people of this country and this congress what corruption is and what it isn't. those are political decisions that the court has made. an activist court who now may have amongst its members a justice who has effectively advertised himself as willing and eager to join that trend line on the court. individual cases raise concerns as well. in riddle v. hickenlooper, judge gorsuch expressed an openness to providing a higher level of constitutional protection to a donor's right to make political contributions than is currently afforded to the right to actually vote.
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donors having more rights than voters having. the result of a -- applying strict scrutiny, which is the term that he's referring to to political donations, we don't exactly know what would happen, but it likely would have the consequence of making it almost impossible to regulate campaign finance. 97% of -- excuse me. 93% of americans in a recent poll think that government should be working to limit the impact that big donors have on politics today. and yet, judge gorsuch has suggested that as a supreme court jurist, he may move the law in the opposite direction, robbing from us, both of us, republicans and democrats, the ability to do what 93% of americans want us to do, which is to restrict the ability of a
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handful of billionaires to affect the political process. in the hobby lobby decision, yet again judge gorsuch suggests that corporations in this case have more rights under the constitution than the individuals who work for them, that the religious freedom rights of the corporation trump the religious freedom rights of employees. once again, ruling that those with power, big donors or corporations, have more rights than those with less power, ordinary voters, employees of these big companies. judge gorsuch wrote years ago in
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complaint, according to him, that liberals were using the court to try to push their political agenda rather than bringing it here to the united states congress. the reality is that over the course of the roberts court, the exact opposite has happened. it's been conservatives who have brought their complaints to the court system, their complaints about voting rights, their complaints about campaign finance, their complaints about the affordable care act rather than bringing them to the floor of this body. that the house of representatives abandons for the time being the repeal and replacement of the affordable care act, their allies continue to push cases through the court system that would attempt to unwind it. judge gorsuch has been, in his writings at least, blind to this idea that conservatives have spent just as much time over the past 20 years trying to push
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their agenda in court as have progressives. progressives have done that as well. clearly we have full marriage rights in this country because of court cases that progressive groups pushed. i'm not denying that there isn't this trend line on both sides of the political spectrum, but judge gorsuch seems to only recognize it in his writings when it comes to the liberals that are pushing these causes. these are the most important decisions we make. many of us may only get to vote on a supreme court justice once or twice. this is my fifth year in the united states senate, and this is my first vote. my first vote should have come in 2016, but it's coming now in
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2017. and so i don't take it lightly, but there is a reason why when you go back to your apartment here in washington, you're watching tv comergz paid for by big corporations and billionaires supporting judge gorsuch's nomination. he says that he is going to play it straight. he says that he's not going to be affected by his political agenda. i hope that he's right, but the folks that are fronting the money for these ads don't believe him. they think they know how he is going to rule. believe me, they would not be putting up all this money on tv if they didn't think that judge gorsuch was going to be a friend to the big companies, to the billionaire donors who want more
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and more protection through the court system. donald trump was right about something when he ran for president. he wasn't right that elections are rigged, but he was right that in general, the system, our economic state of affairs, does seem to be pretty rigged against regular people. economic mobility, which is how we define ourselves as a country, it's just -- it's further away from the people that i represent in connecticut than ever before. and the statistics bear that out. your ability to move from poverty to prosperity is -- is less today than it has been at any point in our lifetime. it does feel like the powerful, the rich. if feels like they have
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recovered very nicely from this recession and nobody else has. and it feels like they have a voice here in washington that no one else has either. and so if you're president trump having run on this promise to unrig the system, boy, this doesn't seem like the person that you should be sending to the bench, somebody that has openly advertised his enthusiasm for voting with billionaires, with corporations, with folks who have lots of political power already. the trans am case, which has been talked about enough on this floor, is a unique one, a case of a trucker who was being potentially left to die by his employer on the side of the ro road, left his truck to save his life and potentially the lives
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of others on the road, had he chose instead to operate it. judge gorsuch ruled with his employer, effectively suggesting that this man should have risked his life or the life of others to comply with the strict letter of the law. and judge gorsuch was asked in the judiciary committee what he would have done. what would you have done, if you had two options: sit in that truck and face death or put it back on the road and potentially kill others? what would you have done? judge gorsuch said that he hadn't thought about that. i don't want my supreme court justices to be political. i don't want them to be us. it really is our job to think
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about, in a real tangible grass-roots way, the effect of our laws on their lives. but i don't want t a justice who doesn't even contemplate the impact of the law on regular people. i don't want a justice who only views the law through the eyes of a group of white men who lived in a fundamentally different world. i don't want a judge who isn't thinking about how the law applies to people that need a statute's protections rather than thinking about those who, frankly, don't need the protection of a statute because they have been handed a pretty good lot of life from the start. i'm going to oppose cloture tomorrow, and if we eventually
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get to a vote, i will oppose judge gorsuch on final passage. and my final comment is this, mr. president: when that moment comes, i do hope that our colleagues will think twice about changing the rules of the senate. you already broke with precedent once in 2016 in a way that i think is unforgivable. to do it twice in a 24-month period, p puts this place on a downward spiral that i'm not sure we can recover from. and if we just want to be the house of representatives, let's just do it. but there's another way to go, to select a nominee who could truly get bipartisan support. as my colleague tim kaine is fond of saying, there's only one appointment by the president of the united states that needs 60
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votes, we will one person, that's a justice of the supreme court, because it's permanent, because it's important, because it lasts longer than us. there's probably some good reason for that. precedent and comity was broken in 2016, something i will never, ever forget, the disrespect shown to judge garland and to everyone else in this body. but to double down on this break with tradition and precedent by changing the rules of the senate permanently with respect to supreme court justices -- i know you can say that democrats did it a few years ago. that's true. but the supreme court is a different animal entirely, and a decision is one that my colleaguerepublican colleagues l rethink. i yield the floor.
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ms. hirono: mr. president? the presiding officer: the senator? hawaii. ms. hirono: mr. president, my senate republicans executed their unprecedented block of president obama's nominee merrick garland, the well of this credentialed, well-respected nod rat chief judge of the -- moderate chief judge of the d.c. circuit, they knew what they were willing. they were willing to set aside the history and practice of a senate to make sure no nominee of president obama's would fill
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the vacancy created by justice scalia's death. as fate would have it, a republican won the presidency and now the majority leader's path was cleared, and this is exactly what happened. president trump selected neil gorsuch from a list put together for him by the ultraconservative heritage foundation and federalist society. these organizations selected judge gorsuch because they want to preserve the conservative 5-4 majority of the roberts court. this majority has done terrible damage to many laws congress has passed to protect ordinary americans and has made it more difficult for us to pass new laws. my colleagues and i have shined a spotlight on these right-wing organizations and the 10 million-plus campaign they've run on judge gorsuch's behalf
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because they believe his view of the law matches theirs, and therein lies our concern. these organizations have spent so much money and worked so hard on judge gorsuch's behalf because they can trust -- perhaps not 100% of the time, but enough of the time -- that judge gorsuch would decide cases in ways they would agree with and support. judge gorsuch is an identificy league-educated lawyer with ten years on the federal bench. he is not naive. even if he refuses to acknowledge the fact that these groups are supporting hummel, judge gorsuch knows as well as we all do that politics have a real impact on the kinds of nominees selected to serve on the supreme court. we know he understands this because he said so in his 2005
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"national review" online article, which he entitled, quote, "liberals and lawsuits." in that article, he wrote that because republicans have won elections for the presidency and for control of the senate, the republicans were in charge of the judicial appointment process. as a result, he said, and i quote, the level of sympathy liberals pushing constitutional litigation can expect in the court may wither over time, leaving the left truly out in the cold. end quote. this article demonstrates that judge gorsuch understands that judges appointed and confirmed by republicans will have less sympathy for, as he put it, liberals pushing constitutional litigation. clearly, judges do not make decisions divorced from their personal and philosophical
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leanings. however often or however loudly they might protest, conservatives understand that their arguments about the narrow role of judges, their claims that justices are only there to modestly apply at law and adhere to the constitution are bunk, and judge gorsuch must know this, too. nowhere is this brand of conservative judicial activism clearer than in the actions of the roberts court to reach into our elections, to tilt the political landscape the significant impact on whose votes are heard in our political process and who is able to take part in our elections. a based on his writings, judge gorsuch clearly understands the relationship between politics and the courts and i am convinced that adding judge gorsuch to the roberts court will only continue the court's intervenge into politics.
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-- i vention into politics. the actions of the on thes court are clear. this court hashed a series of decisions that have made it easier for conservative organizations to spend unlimited and unregulated dark money on elections and that have made it harder for people tovestment harder for people to participate and have their voices heard in the political process. these decisions have changed who is able to participate in the democratic process, who gets elected, and in turn who gets nominated to the supreme court. justice felix frankfurter's admonition that courts ought not to enter this thicket captures court treading into politics. there are times when the courts must do so to ensure one person, one vote, for example. but courts must also be careful when wading into politics
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because the legitimacy of the court is itself put at risk. the most memorable example, of course, came when the court effectively decided the 2000 presidential election in bush v. gore. in the citizens united and shelby county decisions, we have seen the tremendous damage the court can do to democracy when it tilts the electoral process so heavily against ordinary americans. in the 2010 citizens united decision, the roberts court struck down bipartisan laws limiting campaign contributions that went back more than a century. this decision opened an unrestrained flow of money and potential corruption that has dominated our politics and drowned out the voices of ordinary americans ever since. this court's decision in this case was not an accident. chief justice roberts engineered the decision in that case by
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steering it away from the narrow question before the court about how to apply a particular law and took it into a broad constitutional question. his efforts demonstrate that the supreme court has broad power and latitude to push and shape the law. this kind of conservative judicial activism directly contradicts what justice roberts famously said during his confirmation hearing. he said the job of a justice is just to simply call balls and strikes. jeffrey toobin in a 2012 article in the new yorker entitled, quote, money unlimited: how chief justice john roberts orchestrated the citizens united decision -- and in his recent book, "the oath" recounts very clearly how chief justice roberts engineered this campaign
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spending decision. the question originally presented to the supreme court in citizens united according to toobin's account was a narrow one. it involved whether one of the provisions of the bipartisan mccain-feingold campaign finance law applied to a documentary criticizing a candidate and not just to television commercials. in fact, t.e.d. olson, the conservative lawyer representing citizens united beings, the organization that wanted to run the documentary made a narrow argument that the mccain-feingold law was not meant to apply to that kind of documentary. this was an argument based not on the constitution but on deciding the case before the court in the narrowest possible way. such a decision would have been judicial restraint. it became clear during oral argument that the conservatives on the court have the opportunity not just to apply
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the law but to change it entirely. chief justice roberts and the other conservative justices on the court began to do this by aggressively questioning the government's lawyer on issues not then directly before the court. as toobin describes, and i quote, through artful questioning, alito, kennedy, and roberts had turned a fairly obscure case about campaign finance reform into a battle over governmental censorship, end quote. now that it was clear to chief justice roberts that there was a majority on the court for making a broad constitutional decision, he ordered that the case be reargued. rather than simply decide the narrow question argued by both ols0n and the government's attorney. chief justice roberts wanted the court to take head-on a question that was not in fact before it and which the court had decided
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the opposite way only six years before. when the roberts court decided citizens united the following year after reargument, it did so on the broadcast possible ground: on constitutional grounds. and found that corporations, like people, have first amendment rights. it found that these rights could be violated by limits on campaign contributions. again, this outcome did not happen by accident. chief justice roberts engineered the result. according to toobin's account, chief justice roberts chose to assign the opinion for the majority to justice kennedy who was known to be very skeptical of campaign finance laws and believed that limits on campaign spending violate free speech. by doing so, chief justice roberts ensured that citizens united decision would be a broad
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one, and it was. the way the court chose to reach out and change the law was wholly unnecessary to decide the case at hand, and it certainly was not judicial restraint. it was judicial activism. the court in citizens united reached out to overturn precedent and upend laws dating back more than a century to find new rights for corporations to funnel untold millions into our political system. this decision also severely limited the ways in which congress could take action to continue to pursue the aims of campaign finance laws to limit political corruption. in his article, mr. toobin said, and i quote, the citizens united reflects the aggressive conservative judicial activism of the roberts court. it was once liberals who were associated with using the courts to overturn the work of the
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democratically elected branches of government, but the current court has matched contempt for congress with a disdain for many of the court's own precedents. when the court announced its final ruling on citizens united on january 21, 2010, the vote was 5-4, and the majority opinion was written by anthony kennedy. above all, though, the result represented a triumph for chief justice roberts, even without writing the opinion roberts more than anyone shaped what the court did, end quote. but the roberts court was not done with this activism to radically change the landscape of our elections. in another narrow 5-4 decision in shelby county in 2013, the court substituted its conclusions for that of congress and gutted core protections of the voting rights act, protections which were essential
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to the right to vote for millions of americans. again, this is not a decision the court needed to or should have reached, and, again, it was a decision engineered by chief justice john roberts and the conservative majority on the supreme court. back in 1982, chief justice roberts, then official assistant to the attorney general, was a point person for the reagan administration's opposition to strengthening the voting rights act. at that time, congress acted to fix a hole in the voting rights act of the supreme court had opened in a 1980 decision. john roberts was opposed to these efforts to make clear that election practices or procedures that result in discrimination, not only those with the intent to discriminate, violate the voting rights act. in 1982, congress successfully passed their fix over the objections of john roberts and
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the reagan administration. if you look at john roberts' memos and articles from that period of time in which he was a strong advocate within the administration for the position it took, his view of the voting rights act was clear. it was a view he would apply years later as chief justice of the supreme court when he led a 5-4 majority to gut section 5 of the voting rights act. the preclearance provisions of section 5 mandated that any changes to voting laws in states with a long history of discrimination have to be approved in advance or precleared by the justice department or by the d.c. district court. these provisions passed a century after the conclusion of the civil war, for the first time effectively guaranteeing the rights protected by the 14th and 15th amendments in many parts of the country.
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section 5 changed the landscape of our democracy and opened the door for millions of people to exercise their right to vote. these provisions of the voting rights act were reauthorized nearly unanimously, nearly unanimously by congress in 2006. before reauthorizing the voting rights act, the senate judiciary committee alone held nine hearings on it. thousands of pages of materials the senate reviewed, together with the record developed in a dozen hearings in the house clearly establish why it was so important to maintain preclearance in order to protect the right to vote in jurisdictions with a long history of voting discrimination. and yet, in shelby county, the roberts court ignored this evidence and the court's long precedent. the court made its own determination about the value of the extensive evidence reviewed
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by congress and struck down these core provisions. the court refused to defer to the extensive findings and determination of congress even though congress is expressly charged by the 14th and 15th amendments to enforce the guarantees of those amendments, the guarantee of the right to vote. the court did what john roberts fought to do years before, and weakened the voting rights act. so much for judicial restraint. so much for just calling balls and strikes. a justice and a court devoted to judicial restraint with an understanding of the separation of powers never would have ignored congress acting at the height of its constitutional powers and its fact-finding capacity. yet chief justice roberts and the narrow conservative majority
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on the court chose to act, to reach out and to gut one of the core protections of the fundamental right to vote. we now know that congress got it right and the supreme court got it wrong in its judgment about the continuing need for section 5 of the voting rights act. immediately after the shelby county decision, numerous states previously covered by section 5 immediately passed onerous voter i.d. laws and other barriers that affected the right to vote of millions of people. some of these laws were even enacted with discriminatory intent, not just discriminatory effect. in other words, they were blatantly meant to discriminate in voting. these newly raised barriers had a clear impact in last year's elections. for the first time in two generations, thanks to the
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actions of the roberts court, we risk unraveling the progress my friend john lewis fought for alongside so many others during the civil rights movement. during his confirmation hearing, i asked judge gorsuch about the shelby county decision since he often explained the constraints on his approach to judicial decisionmaking in terms of the separation of powers. he said several times that judges make terrible legislators, that courts lack the staff, capacity and training to do the kind of fact finding that is an essential part of the legislative process. and yet, when i asked him whether the court's decision in shelby county raised the kinds of concerns he had noted about the limits of judges as policymakers and legislators, he declined to answer. but this is about more than judge gorsuch's refusal to answer. it is about more than the narrow
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view he expressed, a narrow view that is not a reflection of the real world. both the process and the outcome in shelby county and in citizens united raise exactly the kind of concerns that make it so important for the senate to understand judge gorsuch's judicial philosophy before putting him on the supreme court. judge gorsuch would become part of a newly empowered 5-4 conservative majority on the roberts court that has been anything but restrained and moving the law for the benefit of corporations and against individual rights. taken together, these two decisions, citizens united and shelby county, have made it harder for millions of americans to have their voices heard in our election process and their votes counted in the ballot box. since citizens united, the floodgates have opened to unfettered corporate money in our elections. since shelby county, 13 states
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have enacted laws placing limitations on voting. many of these are in states that would have been prevented from doing so in the first place before the court gutted section 5 of the voting rights act. after shelby county, these states could pass such laws, and they did. disenfranchising tens of thousands of voters in the process. my democratic colleagues and i asked judge gorsuch many questions to try to understand his pattern of narrowly interpreting laws meant to protect individual rights or worker safety in ways at odds with the law's purpose. for example, the narrow interpretation judge gorsuch took on the individuals with disabilities and education act, idea, would have left luke perkins and thousands of special needs children like luke without a chance to make educational progress. his interpretation was so at
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odds with the purpose of the idea law that the supreme court unanimously rejected and criticizeed judge gorsuch's narrow standard in a case that they decided just a few weeks ago. time and again, judge gorsuch through up his hands and told us if we disagreed with his narrow reading of the relevant law, that congress should do better. in his view, the problem was not the court, which he seemed to cast as an innocent bystander, but rather the way congress had written the law. by tilting the political playing field so heavily towards corporations and unfettered dark money and against individuals, the roberts court has imparted -- impacted the composition of who is in congress. the court has made it even harder for congress to take meaningful action to, say, pass laws to protect worker safety or the access of students with special needs to an education.
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in turn, these decisions have made a real-world impact by changing who gets to participate in the political process and therefore who gets elected and who has input on the kinds of laws that are passed and of course who gets nominated to the united states supreme court. the actions of the roberts court in citizens united and shelby county made clear mistakes of the gorsuch nomination. they make clear what the senate republicans had in mind in their unprecedented and arrogant refusal to consider president obama's nomination of merrick garland to the supreme court. they wanted instead a justice like judge gorsuch who would continue the rightward march of the 5-4 conservative majority on the roberts court. and the united states senate should not allow this brazen gambit to succeed. i urge my colleagues to oppose
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this nomination. mr. president, i yield the floor. the presiding officer: under the previous order, the senate stands in recess until 10:00 a.m. tomorrow.


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