Skip to main content

tv   Senate Rules Change Paves Way for Neil Gorsuchs Confirmation  CSPAN  April 6, 2017 9:52am-11:53am EDT

9:52 am
marg confirmed by a margin.l, after the thomas sergio we step back from the brink. instea republicans did not play for bre tat. they are hearing confirmed them overwhelmingly. how do democrats pay for fair treatment of nominees and b filibustered i use the word unprecedented to describe democratics acted the filibustem of judge gorsuch. what democrats did to the nominees was also impressive then. for the first time in history, senate democrats filibustered 10
9:53 am
court of appeals nominees. these are the nominees with majority support. these are nominees that would have been confirmed had theyi gotten an up or down vote. i cannot overstate how the change was to the senate arms and procedures. for the first time in history, senate democrats created an effectual 60-vote threshold for judicial nominees. remember, clarence thomas was hs confirmed with 52 votes and senate democrats filibustered his nomination to be defeated which they didn't because partisan filibusters is not ater ease with majority support were simply not in the accepted playbook. what senate democrats did during george w. bush's presidency, mr. president, changed the senate forever.
9:54 am
next up was samuel alito. but chief justice rehnquist andt justice alito is they partisan but but chief justice rehnquist, they overcame that filibuster. what is notable about justice alito if he received fewer than 60 votes for confirmation. he overcame the filibuster because night teen senate on democrats voted to end debaten. even though only for ultimately voted for confirmation. 15 senate democrats chose not to filibuster justice alito even though they opposed his nomination because they recognize that filibuster any supreme court nominee with clear majority support had no precedent in this body's norms are history. what happens when barack obama? became president and republicans had an opportunity for payback?
9:55 am
did they filibustered justice sonia sotomayor and evening he taken? of course not. matter republicans voted against justice sotomayor and against justice kagan, but no republican try to come to a vote. once again, senate democrats escalated the confirmation in senate republicans chose not to reciprocate. >> senate debate from yesterday in the supreme art nomination of bill gorsuch. this morning does senate against procedural votes and spoke with a capitol hill reporter about what to ask act in the senate t today. can i join in my vodafone is alex baldwin following all of this for the hill newspaper. it's very much for being with us. >> good morning. process first bubble happened this morning and this afternoon. >> guest: well, at 10:00 a.m. the senate will convene an hour later a cloture vote on neil gorsuch two in the democratic filibuster.
9:56 am
that means 60-vote under the current senate precedent. if republicans don't reach 60 a man not going to because more i than 40 democrats have said they are going to vote against advancing his nomination. then there will be a series of procedural steps. butler, will do as he will bring up a motion to reconsider the cloture vote and he will appeal to the chair and ask that the cloture vote only need 51 votes to advance. at that point, either the chair will agree or disagree with them and the motion or the appeal will be sent to the floor were a simple majority of republicans hold of to sustain mcconnell's appeal and that will set a new precedent lowering the threshold for advancing supreme court nominees to a final confirmation vote from 60 votes to 51 votes.
9:57 am
>> alex, when that happens in particular, do expect a lot of trauma or will it be much moreee procedural? >> guest: i don't think there's a lot of trauma because everyone knows what is going to happen. republicans say they are going to change the rules. just as democrats make clear that while black gorsuch, mcconnemcconne ll on tuesday said he has been those to change the rules. there is no single republican who's going to vote other race. mccain is decrying the situation. he's not that he's going to vote against it. i would be surprised if there's a single republican defection, but maybe there will be. but, has a couple of us to play with. the only minor problem i see. >> host: we heard from senator chuck schumer indicating he didn't wanted to go over this clip saying there is still time. to work out a compromise. just a couple hours before the senate is in session. any chance of that happening? >> guest: know, those talks yesterday. they can have reached their peak of the week in with susan
9:58 am
collins, republican of maine and chris kerns, democrat from delaware were talking intensely. there are about 10 lawmakers involved in those discussions. but there is pressure from both sides of the aisle, from leaders, mcconnell and schumer not to strike a deal and strong pressure from the base and those talks collapsed after the weekend and declared them deadcf it would really be a miracle if they put something together at the last minute. sometimes miracles happen in yll congress. >> host: let me get your r reaction to jordan carney is also writing about the senate rules. this is the headline republicans considering a broader change in the senate rules included in the time allotted for debate before the final vote takes place on other nominees. what is this all about? >> in 2013, a resolution passed overwhelmingly in the senate. democrats are still in charge and both sides agree there's tos
9:59 am
much time being a step after cloture was invoked to end filibusters. you still have to wait 30 hours before a final confirmation vote takes place. neil gorsuch won't get a final vote until later friday afternoon. in the 113th congress, there's a resolution passed to reduce post-cloture time as it's called not for supreme court nominees, but executive branch for course with fixed terms such as tax court and also for u.s. district courts. the post-cloture nomination is below the level of cabinet was limited to eight hours per district courts it's two hours. it was just a way to speed up his mess on the floor. the republican whip said yesterday that there have been discussions over whether that's standing order should be reinstituted. that is something that james
10:00 am
langford, republican from oklahoma who was a youngerhis member. he pitched this to his colleagues during a lunch on4 tuesday. it is something the republican freshman class of a 24 midterm election has taught about further rules reform. whether this happens or not, it is really separate from the supreme court discussion.chaplan >> will take you live now to the floor of the u.s. senate. votes coming up in about an hour. o god our help in ages past, our hope for years to come, throughout life's seasons moments of decision arrive. as our lawmakers prepare to make critical decisions, give them the wisdom to choose the more
10:01 am
challenging right that brings the greatest glory to your name. supply their needs according to your riches in glory. purify their thoughts as they strive to do your will. remind them that those who are faithful and little will be faithful in much. may they seek simply to be faithful in whatever you assign their hands to do, striving to please you with their labors. we pray in your great name. amen.
10:02 am
the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington d.c., april 6, 2017. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable luther strange, a senator from the state of alabama, who will perform the duties of the chair. signed: orrin g. hatch, president pro tempore. the presiding officer: the majority leader. mr. mcconnell: mr. president.
10:03 am
mr. president, the senate has considered the nomination of neil gorsuch for many weeks. we've seen his impressive credentials, we've reviewed his incredible record, we've heard glowing praise on a nearly daily basis from colleagues and students, from judges, newspaper editorials, from democrats and from republicans. judge gorsuch is independent and he's fair. he's beyond qualified and he'll make a stellar addition to the supreme court. hardly anyone in the legal community seems to argue otherwise, and yet our democratic colleagues appeared poise to block this incredible nominee with the first successful partisan filibuster
10:04 am
in american history. it would be a radical move, something completely unprecedented in the history of our senate, and out of all proportion to the imminently qualified judge who is actually before us, but then again this isn't really about the nominee anyway. the opposition to this particular nominee is more about the man that nominated him and the party he represents than the nominee himself. it's part of a much larger story, another extreme escalation in the left's never-ending drive to politicize the courts and the confirmation process. it's a fight they have waged for
10:05 am
decades with a singular aim, securing raw power no matter the cost to the country or the institution. it underlies why this threatened filibuster cannot be allowed to succeed or to continue for the sake of the senate, for the sake of the court, and for the sake of our country. i think a look back through history will help every colleague understand why. i've always had a particular interest in the history of judicial nominations. it's an interest that predates my service here as a senator. i remember serving on the staff of a senator on the judiciary committee during a time when two different judicial nominees were being considered. one, harold carswell was voted down ot -- on the senate floor
10:06 am
correctly and another didn't receive the necessary support in confirmation, but in error, i thought. it piqued my interest, mr. president, in what advice and consent should mean in the senate and what it actually meant in practice. i would learn later that i would witness what would soon be called the judicial wars to separate judicial confirmations from constructive debates into raw ideological struggles with no rules and no limits. it's a struggle that escalated in ernest with democrats and left-wing special interests decided to wage war on robert bork. polite comity went out the window after there was one vicious personal attack after another, not because bork lacked qualifications but because his
10:07 am
views were not theirs. here is how "the washington post" described it at the time. the post said, it's not just that there has been an intellectual vulgarization to elements of the attack profoundly distorting the record and the nature of the man. as npr would later observe, the left's all-out campaign at the supreme court. i was there. i saw it all. i remember the viciousness of it. i also remember feeling the senate was reaching a turning point where a judicial nominees would no longer be evaluated on their credentials but on their ideology. that observation, unfortunately, has proven correct with democrats raising the stakes -- raising the stakes and moving
10:08 am
the goalposts each step of the way. they certainly did so under the next republican president, george h.w. bush. we all know what happened to clarence thomas. if the gloves were off for bork, the brass knuckles came out for thomas. here's how left-leaning columnist juan williams described the situation. he said, to listen or read some news reports on thomas over the past month is to discover a mondayser of a man -- monster of a man, unlike the man i saw as a reporter who watched him for some ten years. that was juan williams on clarence thomas. he's been conveniently transformed into a monster about whom it is fair to say anything, for whom it is fair to do anything, williams said. by the time bill clinton won the
10:09 am
presidency, bork had become a verb -- a verb. and high-tech lynching was on the lips of the nation. wounds were fresh and deep when this democratic president had the chance to name two justices of his tone the -- of his own to the court. now, mr. president, republicans could have responded in kind to these nominees, but that's not what happened. when president clinton nominated ruth bader ginsburg the senate confirmed her 96-3. when president clinton nominated stephen breyer, the senate confirmed him 87-9. i, like the vast majority of republicans, voted for both of them. we did so in full knowledge of the considerable ideological
10:10 am
differences between these nominees and ourselves. ginsberg in particular had expressed notably extreme views. even advocating for the abolition of mother's day. a nominee for the supreme court abdicating for mother's day and yet confirmed 96-3. could we have borked these nominees? could we have tried to have filibustered them? sure. but we didn't. we resisted the calls for retribution and did our level best instead to halt the senate slide after the bork and thomas episodes. we respected the senate's tradition against filibustering supreme court nominees. now the tradition not to filibuster extended not just
10:11 am
beyond the supreme court. when president clinton named two highly controversial nominees from california to the nienltsdz circuit, some -- ninth circuit, some on my side wanted to defeat their nominations with a filibuster. the republican leadership said, let's don't do that. to their great credit, majority leader lott and senator hatch decided not to do that. they advanced the nomination. he and senator hatch and i and a vast majority of the republican conference voted for cloture to give them an up-or-down vote. we didn't do this because we supported the nominees. in fact, most of us voted against their actual confirmation, but we thought they deserved an up-or-down vote. after all, that was the tradition of the senate. given that we were in the majority and that these nominations were highly controversial, our determination not to filibuster but instead
10:12 am
advance them to an up-or-down vote was not -- was not as you might imagine popular with our base, but we resisted the political pressure. again, we respected the senate's tradition against filibustering judicial nominees, but it would matter little -- it would matter little to our democratic friends. less than a year later, president bush, 43, comes to office. before he had submitted a single judicial nominee, our democratic colleagues held a retreat in farmington, pennsylvania. there, according to participants, they determined to change the ground rules -- change the ground rules for how they would handle judicial nominees. as new york times reported
10:13 am
democrats decided, quote, there was no obligation to confirm someone just because they are scholarly. end quote. our friend, the democratic leader said at the time that what he and his colleagues were trying to do was to set the stage for yet another escalation in the left's judicial wars. senate democrats soon became the majority in the senate due to then-senator jeff ford -- jeffords party switch, the current democratic leader used his position on the judiciary committee to hold a hearing on whether ideology should matter in the confirmation process. now, mr. president, it won't surprise you that the conclusion he and his colleagues reached was that it should so they killed in committee, either through inaction or via
10:14 am
committee vote, qualified nominees who did not fit their ideology. i know because i was on the committee then. 18 months later our democratic colleagues lost control of the senate and therefore control of the judiciary committee. our colleague, the current democratic leader, again, took center stage. new york times noted that over the last two years mr. schumer has used almost every maneuver available to the senate judiciary committee to block the appointment. to block the appointment of a bush administration judicial nominees. then in 2003, again according to "the new york times," he recommended using an extreme tactic, the filibuster, to block
10:15 am
it. mr. schumer, the times said, to use a tactic that some were reluctant to pursue and that has royaled the senate. a filibuster on the floor of the chamber to block nominees that he and other democrats decided to oppose. it's hard to express how radical a move that was at that time. because it completely changed the way the senate had handled these nominations for our entire history. even filing cloture on a judicial nominee had been rare before then and defeating, actually defeating any judicial nominee by filibuster other than a bipartisan opposition to the nomination of abe fortas back in 18968, a -- 1968, a presidential election year, was simply unheard of. no longer.
10:16 am
democrats blocked cloture 21 times on ten different circuit court nominees, including outstanding lawyers like miguel estrada. his nomination was filibustered an incredible seven times. now, these aren't inflated statistics, mr. president, like the supposed 78 filibusters democratic colleagues are now alleging occurred during the obama administration, which includes numerous instances where the prior democratic leader unnecessarily filed cloture petitions. no, what i'm talking about are real and repeated filibusters used by democrats to defeat nominations. in the face of this unprecedented change of the norms and traditions of the senate, we republicans contemplating using the nuclear option. we decided against it. 14 colleagues, three of whom still serve in this body,
10:17 am
reached an accord where filibusters would be overcome for five of the ten nominees in question. regretfully miguel es extra today was not -- estrada was not one of them. he had withdrawn his nomination after being put through an unprecedented ordeal. and yet the egg was barely dry when senate democrats led in part by the democratic leader in part again did something exceedingly rare in the nominations process. they tried to filibuster samuel alito's nomination to the supreme court. no member of the republican conference, by the way, has ever voted to filibuster a supreme court nominee, ever. nobody on this side of the aisle has ever done that. again, it would have been easy for republicans to retaliate when president obama took office, but just like under
10:18 am
clinton, that's not what happened. how did we treat obama's lower court nominees? well, at the time our democratic colleagues decided to fill up the d.c. circuit one way or the other as the democratic leader put it, senate republicans had defeated a grand total of two, two of president obama's judicial nominees. so, mr. president, at the time they decided to employ the nuclear option and fill up the d.c. circuit, senate republicans had confirmed 215 obama judges and defeated just two. 215 we had confirmed and defeated just two. so our democratic colleagues' decision to employ the nuclear option in 2013 was not, not in
10:19 am
response to rampant obstruction. but was in the words of "the washington post" a power play. by the way at the time i don't recall the democratic leader or any other of our democratic colleagues repeating the refrain if there aren't 60 votes for a nominee, you don't change the rules. you change the nominee. they weren't saying that then. what did they do? they changed the rules. it was a power play, but it was also something else. it was an admission by our democratic colleagues take the senate tradition of up-or-down votes for judicial nominees, that they had first upset back in 2003 by starting the practice of filibustering judicial nominees, was a tradition they
10:20 am
should have respected. unfortunately, it took them ten years to realize this and only after they captured the white house and only after republicans also used on a smaller scale to avail themselves inaugurated a decade earlier. so, mr. president, how do we treat president obama's supreme court nominees? did we try to filibuster them? like our democratic colleagues tried with justice alito? of course not. when president obama nominated sonia sotomayor and elena kagan, we treated each nominee fairly as they would later say themselves, and we secured an up-or-down vote for both. most republicans had significa significant, significant misgivings about these nominees. many of us voted no in the
10:21 am
confirmation, but we didn't think it would be right to deny them an up-or-down vote. ranking member jeff sessions of the judiciary committee at the time and i even protested when then democratic leader reid tried to file cloture on the kagan nomination because we were determined to prevent even the hint, the hint of a filibuster. again, we respected the senate's tradition against filibustering supreme court nominees. i know our friends on the democratic side will be quick to interject with predictable protests about last year, though they seem to forget their own position on the issue. when justice scalia passed away, the senate chose to follow the standard first set forth by then senator biden when he was chairman of the judiciary
10:22 am
committee. and then expanded upon by the current democratic leader himself. the senate exercised its constitutional advise and consent role by withholding its consent until after the election. so the next president regardless of party could select the nominee. it's a standard i held to, even when it seemed inevitable that our next president was going to be hillary clinton. it's also a standard that president obama's own legal counsel admitted democrats would have followed themselves had the shoe been on the other foot. the majority of the senate expressed its then by withholding consent. the majority of the senate wishes now to express itself by providing consent to judge gorsuch. but the bipartisan majority that supports him can't do so if a
10:23 am
partisan minority filibusters. they're prepared to do so for the first time in american history, and the democratic leader has mused openly about holding this seat vacant for an entire presidential term. we will not allow their latest unprecedented act on judicial nominations to take hold. mr. president, this will be the first and last partisan filibuster of a supreme court nomination. now, all this history matters. i know the democratic leader would rather not revisit the circumstances that brought us to this moment. i know the democratic leader would rather not talk about it. well, of course he doesn't want to talk about it. he and his party decided to change the ground rules for
10:24 am
handling judicial nominations. he and his party pioneered, pioneered the practice of filibustering lower court judicial nominees. he and his party launched the first partisan filibuster of a supreme court nominee. he and his party deployed the nuclear option in 2013. now they're threatening to do something else that's never been done in the history of the senate. successful filibuster a supreme court nominee on a purely partisan basis. and for what reason? for what reason? because he isn't qualified? because he isn't fit for the job? no. because he was nominated by a
10:25 am
republican president. this is the latest escalation in the left's never ending judicial war, the most audacious yet, and it cannot and it will not stand. there cannot be two sets of standards, one for the nominees of democratic presidents and another for the nominee of a republican president. the democratic leader essentially claimed yesterday the democratic presidents nominate justices who are near the mainstream. but republican presidents nominate justices who are far outside the mainstream. in what universe are we talking about here? i would say to my friend from new york, few, few outside of manhattan or san francisco believe that ruth bader ginsburg is in the mainstream but neil gorsuch is not.
10:26 am
to quote a long time democrat and member of the left leaning american constitution society, there is simply no principled reason, none to vote no on judge gorsuch's nomination. even less of one to block that vote from occurring at all. so let me say this to my democratic colleagues. if you truly cannot support the nomination of this eminently qualified nominee, then at least allow the bipartisan majority of the senate that supports gorsuch to take an up-or-down vote. you already deployed the nuclear option in 2013. don't trigger it again in 2017.
10:27 am
the presiding officer: neps, the leadership time is reserved. under the previous order, the time until the cloture vote on the gorsuch nomination will be equally divided between senators grassley and feinstein or their designees. mr. grassley: i was going to ask you, mr. president, i was going to -- the presiding officer: the senator from iowa. mr. grassley: i was going to ask unanimous consent to that extent so i guess you've already announced it's in place. is that right? i'm going to add something to what you just said. so let me start over again. i ask unanimous consent that the senate until 10:45 be equally divided between senator feinstein or her designee or myself or my designee and the time from 10:45 to 11:00 be reserved for senator schumer's leader's remarks. the presiding officer: is there objection? seeing none. it's agreed.
10:28 am
mr. durbin: mr. president? the presiding officer: the democratic whip. mr. durbin: i'd like to ask for clarification is that the remaining 17 or 18 minutes is equally divided? the presiding officer: the senator is correct. mr. grassley: that's what my unanimous consent said. mr. durbin: i wanted to get more specific, senator. i'm not questioning what you asked for. so we have nine minutes each or eight minutes each? mr. grassley: and i'll probably need more than nine minutes but i'll put the rest of my statement? the record. mr. durbin: so will i. so i defer to the chairman of the committee if he'd like to speak first. mr. grassley: within the next hour or so, we'll learn whether the minority leader will come to their senses and whether they'll engage in a very first partisan filibuster of a supreme court nominee. all indications are that they are committed to their course. that's unfortunate. it truly is.
10:29 am
the question you have to ask is this. what exact liz is -- what exactly is so objectionable about this nominee that he should be subjected to the first partisan filibuster in u.s. history? is he really not well qualified? columbia for bachelor's, harvard for law school, and oxford for a doctorate. he clerked for not one but two supreme court justices over ten years on the circuit court. he's had 2700 cases. it's clear then that he is extremely well qualified. so what is it? what makes this nominee so objectionable? the truth of the matter is that throughout this process, the minority led by their leader has
10:30 am
been desperately searching for a justification for their preplanned filibuster. over the course of the last couple of months, they've trotted out one excuse after another. but nothing will stick. they said he isn't mainstream, but that's not true. everyone from obama's solicitors general to rachel maddow has said he is mainstream. they said he is an independent -- that he isn't independent, but everyone knows he's an independent judge. he is his own man and he understands the role of a judge. then they rolled out this ridiculous argument that he's for the big guy and against the little guy. even law professors like noah
10:31 am
feldman called it a truly terrible idea. then they said that we should hold him responsible for the legal position that he took on behalf of the united states government. the only problem there is that we've had a lot of nominees who have represented the united states government, they worked for him, and the government was their client. the other side senatorially didn't want to -- the other side certainly didn't want to hold kagan as solicitors general that the united states government was constitutionally permitted to ban pamphlets, so that argument fell flat as well. then, of course, after they ran out of substantive arts against the judge and his record, they resorted to attacks on his
10:32 am
supporters or the president who nominated him or the selection process, anything -- anything to distract from the judge and this stellar record that he has. they trotted this absurd claim that we should reject the judge, not because of some opinion he's written, but because those who support his nomination have the gall to actually speak out and make their voices heard. except they forgot to check with their own supporters, first to make sure that none of them are spending so-called dark money. of course they are spending money on issue advocacy, just as the law permits, and the constitution protects under the first amendment. as we all know issued advocacy
10:33 am
during supreme court nominations is absolutely nothing new. those who are complaining issue advocacy today don't seem to remember the tv ads that the far left ran attacking judge bork in 1987. i remember those ads. i remember the ads the left ran against justice thomas as well, and, of course, outside groups on the left have attacked every republican nominee since. so expressing selective outrage over issue advocacy doesn't advance their cause either, but they still keep it up. finally, the talking point we've heard repeated most often over the last 24 hours is that candidate trump outsourced his selection process to conservative groups. i must say i find that argument the oddest of all.
10:34 am
it's the kind of thing justice scalia would call pure applesauce. the president didn't outsource the selection process to conservative groups. he made his list public for the entire country to review during the campaign. he's the first president to do that. if anything, then, he outsourced his selection process to who? the voters. the american people. so what do you do? you're out of substantive arguments from the other side? even shots fired at the judge's supporters boomerang and hit your own advocacy groups. but we've seen all of this before. i've been through a few of these debates over the years when the republican occupies the oval office, the nominees may change
10:35 am
but the attacks remain the same. you will hear today the same poll-tested catch phrases we've all heard time and again. you will hear words and phrases like outside of the mainstream, far right, and extreme. invariably these are words that the left tries to pin on every nominee of a republican president and the people he submits to the senate. with each nominee the playbook on the left seems to be the very same. the nomination process, it seems, is a desperate attempt to retell the same old preordained narrative. so, as i've said, those of us who have been through a few of
10:36 am
these episodes have heard it all before and we're going to hear it in the next few hours again, but this time something is very different. this time they intend to use the same old preordained narrative to justify the first partisan filibuster in the 220-year history of the united states senate. and, of course, this result was preordained because as the minority leader said weeks before the president was even sworn into office, quote, it's hard for me to imagine a nominee that donald trump would choose that would get democrats' support. you've already committed to the far left that you will launch the first partisan filibuster in
10:37 am
u.s. history so you're stuck. you've got the press -- you've got to press forward, don't you, even though you know the effort is doomed to fail. you know he will be confirmed and you know in your hearts of heart that he deserves to be confirmed. and that is why this is an especially sad state of affairs. the presiding officer: the senator's time has expired. mr. grassley: i yield the time. the presiding officer: the minority whip. mr. durbin: clearly an investigation is necessary there must have been a hacking into his computer because he can't print the name merrick garland to include in the speech. the senator from kentucky, the republican leader, has failed to mention that name because that
10:38 am
name is the reason we are in this spot today. when justice antonin scalia passed away, president obama exercised his constitutional responsibility to send a nominee to the senate to fill the vacancy on the supreme court, and for the first time in the history of the senate -- for the first time ever -- this republican-led senate refused to give this nominee a hearing and a vote. it had never -- under line the word never -- happened before. was the reason he was unqualified? of course not. he was unanimously well qualified, serving on the d.c. circuit court. the reason was stated by senator mcconnell, we're going to place a bet that the next president will be a republican and let them fill the vacancy. when a republican comes to the floor talking about the politization of this process, the reason we are here when we should be celebrating the
10:39 am
one-year anniversary of merrick garland on the supreme court is because they kept that position vacant so it could be filled by a republican president. that's exactly why we're here today. this notion that it is somehow fanciful that the choice of neil gorsuch was made by outside groups is belied by the very words of the president himself who thanked the federalist society and the heritage foundation, two special from republican organizations, forgiving him a list of nominees for the supreme court. it was very open and public there was gratitude -- political gratitude -- that they came up with the name neil gorsuch. and that's a fact. when you look at the history that's led us to this moment, the senator from kentucky, the republican leader, has to accept what is clear -- in the history of the united states of america until senator mcconnell's days under president obama, exactly 68 nominees had been stopped by
10:40 am
filibuster under senator mcconnell and the republicans, 79 nominees of president obama were stopped. it was an abuse of the filibuster never seen before in the history of our nation and it was that abuse of the filibuster and statements that they would leave vacancies on critical courts like the d.c. court of appeals there forever and ever amen that led to the decision four years ago to say that we would employ a change in the rules so we could finally fill these court positions, finally break the filibuster death grip which senator mcconnell had brought to this chamber in a way never before seen in history. so the senator from kentucky has made history. he comes to the floor every day and tells his history. he made history in the number of filibusters he used on this floor. he made history in denying a presidential nominee the opportunity for a hearing and a vote which had never, never happened before in the history
10:41 am
of the united states. talk about partisanship. and when it comes to this judge gorsuch, i read his cases. i sat through the hearings. i was in the senate judiciary committee. we took a measure of the man. he was careful to avoid any question that he could when it came to his position on cases and issues and values, and that's not unusual. supreme court nominees do that. and so we tried to look at his cases, what do his case that's he decided reveal about the man? and two or three cases came right to the front. the first involved the sad story of a frozen truck driver on interstate 88 outside of chicago in january a few years back. 14 degrees below zero, the brakes on his trailer freeze, he pulls to the side of the road, calls his dispatcher who said, stay with the truck, we're sending somebody. hours pass. he is now going through
10:42 am
hypothermia, freezing and calls the dispatcher and says i have to do something. he says, you either drag this truck on the interstate and take your best chances. he decided to unhitch the trailer -- unhitch the trailer and gas up and warm up and come back. he was fired for that. seven judges looked at whether it was fair to fire am fons fons -- alphonse maddin, six said he was correct and one said he should be fired and that was neil gorsuch. the hobby lobby, who should decide the health care of thousands of workers? well, the greene family who owns hobby lobby said our religious briefs should dominate. we should control the health care for our employees. judge gorsuch said, that's right, because they own a corporation and a corporation is
10:43 am
a person and as a corporation they can have sincere religious beliefs. a choice between a corporate ownership of a family and 13,000 employees and their own personal religious rights, judge gorsuch rules for the corporation. kansas state university -- kansas state university professor after working there for many years is diagnosed with cancer and has to go through bone mario transplant -- bonemar row transplant and said she is afraid to go back to work because of the influenza. they said come back or you will be fired. she was aired fired and judge gorsuch said that kansas state university was right. those are insights into the value of a man hon wants a lifetime appointment to the united states supreme court, the highest court in the land. the questions we have raised about his judgment and his
10:44 am
values go to the heart of who we are and with a what we want to be. do we want the supreme court to continue to be a voice for j -- for the corporations an corporate elite and employers? do we want to exclude the opportunities of common people like that truck driver alphonse maddin? that's what it comes down to. it is a fundamental question of fairness and justice. i'm sorry because i spent a good part of my life here and i'm sorry that we reached this moment. but this effort to fill this nation's court with republican appointments even at the expense of violating senate tradition that's are over 100 years old. that has brought us to this moment. as someone said the nuclear option was used by senator mcconnell when he stopped merrick garland. what we're facing today is the fallout. mr. president, i yield the floor.
10:45 am
mr. schumer: mr. president? the presiding officer: the democratic leader. mr. schumer: this past week the american people have been exposed to a contentious debate here on the senate floor about the nomination of judge gorsuch to the supreme court. the american people have heard many arguments about the judge's merits and his shortcomingses. we've also heard senators
10:46 am
litigate four decades of fierce partisan wrangling over the composition and direction of the federal judiciary. that debate, that long debate, has informed the current one about judge gorsuch. newer members may not remember all the details. friends of mine, like senator hatch probably will remember too many of them. still, the vote on judge gorsuch and the decision by the majority leader to move to change the rules has roped in all of that history. now, how did we get here? the truth is over the long history of partisan combat over judicial nominations, there's blame on both sides. we believe that the blame should not be shared equally between republicans and democrats. we believe the republican party
10:47 am
has been far more aggressive in the escalation of tactics and in the selection of extreme judicial candidates while democrats have tended to select judges closer to the middle. keep this in mind. the last time a republican-controlled senate confirmed the supreme court nomination of a democratic president was 1895. nonetheless, each side comes here today in full confidence that their side is in the right. it was once said that, quote, antagonism is never worse than when it involves two men, each of whom is convinced that he speaks for the goodness and rectitude. so it is today. my republican friends feel that they have cause to change the rules because the democrats changed the rules on the lower court nominees in 2013.
10:48 am
we believe we had to change the rules in 2013 because the republicans ramped up the use of the filibuster to historic proportions forcing more cloture votes under president obama than during all other presidents combined. more cloture votes under obama than under george washington all the way through george bush. my republican friends think they have cause to change the rules because we're about to deny cloture to the nomination of judge gorsuch. we believe that what republicans did to merrick garland was worse than a filibuster, declearing mere hours after justice scalia's death that they would deny the constitutional prerogative of a president with 11 months left in his term and, as my colleague from illinois noted, we did not hear two words
10:49 am
in the long speech of senator mcconnell merrick garland. we could relitigate these debates for the next hour mentioning everything the republican leader left out in his remarks. in fact, i'm pretty sure we could argue endlessly about where and with whom this all started. was it the bork nomination or the obstruction of judges under president clinton? was it when democrats blocked judges under president bush? or when republicans blocked them under president obama? was it judge garland or judge gorsuch? wherever we place the starting point of this long twilight battle over the judiciary, we are now at its end point. these past few weeks we democrats have given judge gorsuch a fair process, something merrick garland was denied. my colleagues came into this debate with an open mind.
10:50 am
i think many of them wanted to vote for judge gorsuch at the outset. so we met with the nominee. we consented to and participated in his hearing. but over the course of the hearing during which judge gorsuch employed practiced evasions and judicial platitudes, the mood of our caucus shifted. without so much of a hint about his judicial philosophy, without a substantive explanation of how he views crucial legal questions, all we had to go on was his record. and the more we learned about judge gorsuch's record, the more we didn't like. judge gorsuch has shown in his rulings and in his writings to decide almost instinctively with corporate interests over average americans. he hasn't shown independence from the president who so routinely challenges legitimacy of the judiciary. while he's made a studious effort to portray himself as
10:51 am
thoughtful and moderate, his record shows far from being the kind of mainstream candidate for the supreme court that could earn 60 votes, he may very well turn out to be one of the most conservative justices on the bench. analysis of his record in "the new york times" showed he'd be the second most conservative judge on the bench, and one in "the washington post" showed he'd be the most conservative justice even to the right of justice thomas. for these principled reasons, judge gorsuch was unable to earn enough democratic support for confirmation. because of that, the majority is about to change the standing rules of the senate to allow all supreme court nominees to pass on a majority vote. it doesn't have to be this way. when a nominee doesn't get
10:52 am
enough votes for confirmation, the answer is not to change the rules. it's to change the nominee. presidents of both parties have done so in similar situations. on several occasions supreme court nominees were withdrawn because they did not have enough support. one was even withdrawn after a failed cloture vote. so this week we have endeavored to give the majority leader and my friends on the other side of the aisle a way out of this predicament. we offered them the option to sit down with democrats, with we democrats and the president, and discuss a nominee who would earn enough bipartisan support to pass the senate, not one vetted only by far right special interest groups. i came here to the floor each day and made an offer to meet anywhere, any time to discuss a new nominee. i hoped perhaps naively that we
10:53 am
could discuss a way forward that both our parties could live with. unfortunately, there were no counteroffers or discussion offered by the other side. but our offer was meant sincerely. democrats and republicans are caught in such a bunker mentality on this issue that we're just talking past each other. i know that many of my republican friends are squeamish and uncomfortable with the path we are on as we democrats are as well. we've reached a point where the leflevel of distrust is so highn this issue, we can't even sit down and talk. my republican friends dismisses out of hand the notion that democrats will ever vote to confirm a republican nominated judge despite the fact that there were democratic votes for both justices roberts and alito to get them over 60 and despite
10:54 am
our attempts to convince them otherwise. but make no mistake about it. for all the back and forth, when history weighs what happened, the responsibility for changing the rules will fall on the republicans and leader mcconnell's shoulders. they have had other choices. they have chosen this one. no one forced them to act. they acted with free will. we offered them alternatives. they refused. they hardly entertained any other possibilities. it seemed that the republican leader was if day one -- was from day one intent on changing the rules if he didn't get his way. and, frankly, this is how so many of our republican friends have approached the judiciary for a long time. for two decades they have done whatever it has taken to move the bench to an ideological far
10:55 am
right position. independent experts have stated that we have a more conservative supreme court than we've had in a very long time. nothing, not even the rules, not even the comity of the senate seems to stop them. when the dust settles, make no mistake about it, it will have been the republicans who changed the rules on the supreme court. but we take no solace that history will put it on their shoulders because the consequences for the senate and for the future of the supreme court will be far-reaching. the nuclear option means the end of a long history of consensus on supreme court nominations. it weakens the standing of the senate as a whole, as a check on the president's ability to shape the judiciary. in a post-nuclear world if the senate and the presidency are in
10:56 am
the hands of the same party, there's no incentive to even speak to the senate minority. that's a recipe for more conflict and bad blood between the parties, not less. the cooling saucer of the senate will get considerably hotter. the 60-vote threshold on controversial matters is a hallmark of the senate. the majority leader has said so himself. it fosters compromise. it fosters bipartisanship. it makes the senate more deliberative. 60 votes ought to be the epigraph of the senate. losing that standard on the supreme court, a usually controversial matter, erodes the very nature of this body. mr. president, the 60-vote bar in the senate is the guardrail of our democracy. when our party politics is
10:57 am
veering too far to the right or to the left, the answer is not to dismantle the guardrails and go over the cliff but to turn the wheel back toward the middle. the answer is not to undo the guard rails, the rules. it's to steer back to the middle and get a more mainstream candidate. with respect to the supreme court, the 60-vote threshold operates as a guardrail against judicial extremism. when 60 votes, typically a bipartisan supermajority, are required for confirmation, nominees tend to be in the judicial mainstream. the only nominee on the court to be confirmed with less than 60 votes was justice thomas who is widely recognized to be the most ideological extreme supreme court justice. it will mean the end of any pressure on any future president to nominate someone in the
10:58 am
mainstream when it comes to the courts, the guardrails are being dismantled. there will be more 5-4 decisions as our chair -- as our ranking member of the judiciary committee has pointed out. there will be less faith in the supreme court because it will be seen as a political body, an extension of our most divisive debates. and as a result, america's faith in the integrity of the court and the trust in the rule of law will suffer. in conclusion, mr. president, i am disheartened that we are here. in the sweep of history, the senate has been the place where great seemingly intractable disagreements in american politics finally give way to compromise precisely because we have a set of rules that requires it. the story of the senate is one of fierce debate but eventual
10:59 am
cooperation. we tend to pull back when things get too heated because we all care about this institution and its role in our national life. in this case, cumulative resentments from years of partisan trench warfare were too great. instead of the senate forcing us to change, senators have decided to change the senate. and i worry a great deal about what that means for our future. 20 years ago i think even the most partisan would say that the 60-vote threshold was basically inviable. today it will be gone for all nominations. but at least not for legislation. now, my friend, the majority leader, has said he has no interest in removing the barrier for legislation. i agree with him wholeheartedly
11:00 am
and i take him at his word. i hope that we can get together to do more in future months to ensure that the 60-vote threshold for legislation remains. but just as it seemed unthinkable decades ago that we would change the rules for nominees, today's vote is a cautionary tale about how unbridled partisan escalation with overwhelm our basic inclination to work together and frustrate our efforts to pull back, blocking us from steering the ship of the senate away from the rocks. there's a reason it was dubbed the nuclear option. it's the most extreme measure with the most extreme consequences. and while i'm sure we will continue to debate what got us here, i know that in 20, 30, or
11:01 am
40 years we will sadly point to today as a turning point in the history of the senate and the supreme court. this is a day when we irrevocably move away from the principles our founders intended for these institutions, principles of bipartisanship, moderation and consensus. let us go no further on this path. i yield the floor. the presiding officer: the clerk will report the motion to invoke cloture. the clerk: we, the undersigned senators, in accordance with the provisions of rule 22, do hereby bring to a close debate on on the nomination of neil gorsuch of colorado to be an associate justice of the supreme court of the united states. signed by 17 senators. the presiding officer: by unanimous consent, the mandatory quorum call has been waived.
11:02 am
the question is, is it the sense of the senate that debate on neil gorsuch of colorado to be an associate justice of the supreme court of the united states shall be brought to a close? the yeas and nays are mandatory under the rule. the clerk will call the roll. vote:
11:03 am
11:04 am
11:05 am
11:06 am
11:07 am
11:08 am
11:09 am
11:10 am
11:11 am
11:12 am
11:13 am
11:14 am
11:15 am
11:16 am
11:17 am
vote :
11:18 am
11:19 am
11:20 am
11:21 am
11:22 am
11:23 am
11:24 am
11:25 am
11:26 am
11:27 am
11:28 am
11:29 am
the presiding officer: any senator wishing to change their vote? if not on this vote the yeas are 55. the nays are 45. three-fifths of the senators duly chosen and sworn not having voted in the affirmative, the
11:30 am
motion is not agreed to. mr. mcconnell: i move to reconsider the vote and ask for the yeas and nays. the presiding officer: is there a sufficient second? there is. the clerk will call the roll. vote:
11:31 am
11:32 am
11:33 am
11:34 am
11:35 am
11:36 am
11:37 am
11:38 am
11:39 am
11:40 am
11:41 am
the presiding officer: the senator is not recording.
11:42 am
vote: re
11:43 am
11:44 am
11:45 am
vote: the presiding officer: are there any senators in the chamber wishing to change his or her vote?
11:46 am
if not the yeas are 55. the nays are 45. the motion to reconsider is agreed to. mr. schumer: madam president? the presiding officer: the democratic leader. mr. schumer: may we have order. the presiding officer: order in the chamber. mr. schumer: madam president, parliamentary inquiry. the presiding officer: the democratic leader will state the parliamentary inquiry. mr. schumer: is it correct that over half the nominations on which cloture motions were filed in the senate over the course of our entire history as a country were filed between the beginning of president obama's administration and november 21, 2013? the presiding officer: the secretary of the senate's office confirms that 79 of the 147 cloture motions filed on nominations were filed between 2009 and november 1, 2013. mr. schumer: madam president, further parliamentary inquiry.
11:47 am
the presiding officer: the democratic leader will state the parliamentary inquiry. mr. schumer: under the rules and precedence of the senate, is the senate prohibited from considering and voting on a nominee to the supreme court in the fourth year of the president's term? the presiding officer: the chair is not aware of any such prohibition in its rules or precedence. mr. schumer: madam president, additional parliamentary inquiry. the presiding officer: the democratic leader will state the parliamentary inquiry. mr. schumer: is the chair aware of any instance in the years between the 1949 advent of routine public supreme court confirmation hearings and 2016 that a nominee who was not withdrawn did not receive a hearing and a vote? the presiding officer: the secretary of the senate's office confirms that since 1949, supreme court nominees have routinely received public hearings. harriet meyers whose nomination was withdrawn and merrick
11:48 am
garland did not. mr. schumer: madam president, in order to allow president trump, republicans and democrats time to come together and discuss a way forward on a supreme court nominee that can meet the 60-vote threshold, i move to postpone the nomination to 3:00 p.m. on monday, april 24, and i ask for the yeas and nays. the presiding officer: is there a sufficient second? there is. the clerk will call the roll. vote:
11:49 am
11:50 am
11:51 am
11:52 am


info Stream Only

Uploaded by TV Archive on