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tv   Senate Rules Change Paves Way for Neil Gorsuchs Confirmation  CSPAN  April 6, 2017 1:52pm-3:53pm EDT

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mccain's law endorsed torture when it did just the opposite. the issue came up in his nomination hearing. judge gorsuch's explanation was he was making the recommendation as a lawyer helping his client which was the administration. i got to say, mr. president, there's one thing we've learned. this just following orders defense has gone on for far too long in this city. it is a small and feeble excuse, unbecoming after judge nominated to the highest court in the land, a judge justifying government violations in the law and the constitution just so his boss can say i was following the advice of counsel. that is, making a choice to do wrong. the mccain amendment, what we
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passed here in the congress, did not green light torture. it did not codify torture, period. and anybody who has ever heard john mccain talk about this issue, describe his personal horrifying experiences with torture knows that it certainly could not have been his intent in writing the bill. and any lawyer, especially one secretly advising the government first has an obligation to the law and the constitution. judge gorsuch's failure to recognize that principle and his choice to do wrong in my view disqualifies him from a seat on the united states supreme court. torture is not the only illegal program on which judge gorsuch left his fingerprints. after news broke of the illegal warrantless wiretapping program,
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judge gorsuch helped prepare testimony for the attorney general which asserted that these authorities are vested in the president and they're inherent in the officer. it added, and i quote, they cannot be diminished or legislated away by other coequal branches of the government. if that were the case, then no action taken in this area by the elected representatives of the people has any weight. the foreign intelligence surveillance act that existed since the 1970's would be just some kind of advisory statement. section 702 of the foreign intelligence surveillance act which we're going to debate this year be little more than wasted paper. and the u.s.a. freedom act which ended the bulk collection of law-abiding americans' phone records might not have -- might as well never been signed into law. voting for those bills, voting to confirm judge gorsuch call into question any member's
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commitment to those laws that we passed. in response to a question during his nomination hearing, judge gorsuch said that he didn't believe the attorney general's testimony and that again he was only acting as a scribe, as a speech writer and as such he absolved himself of responsibilities for his actio actions. again i think that it's just wrong to use this as an excuse. like the endorsement of torture, assertions of presidential authority to override congressional limits on warran warrantless surveillance rip at the fabric of the rule of law. judge gorsuch, a man who chose to get up and go to work every
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day for individuals who are violating the law, judge gorsuch had the power to say no and he would not make that choice. colleagues, the senate is voting to confirm an individual to a lifetime position on the supreme court. what judge gorsuch has stood for and against over the course of his legal career, as we all go into this debate, will have -- we'll have to reflect on. the history of support in my view for secret, illegal, and unconstitutional programs is an unacceptable record for someone seeking a place on the supreme court. i'm reminded the senate again and again in this talk how the supreme court has rubber stamped the executives of our -- rubber stamped the excesses of our executive and legislature over the years rather than to defend
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individual liberty. that's the record. the supreme court rubber stamping the excesses of the executive and legislature rather than protecting the individual liberties of the american people. my view is it's our job as senators to ensure that the supreme court does not repeat the errors of yesterday, enshrining disenfranchisement and discrimination and denying equal protection of the law based on prejudice and political agendas. and i believe the only way to prevent this abuse is to appoint judges who recognize the judiciary is a bulwark against any attempt to infringe on our inalienable rights. so the bottom line for me, colleagues, is whether judge gorsuch recognizes that rights
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are reserved to the people. there is no respect for individual rights and liberty to be found in a viewpoint that allows for secret law to justify torture, that favors the powerful over the powerless, or that tramples on the rights of americans to determine the courses of their own lives. unfortunately we have learned over the last few weeks this is judge gorsuch's record. i oppose his nomination. i urge my colleagues to do the same. and i yield the floor. a senator: mr. president? the presiding officer: the senator from montana. a senator: mr. president, one of the most consequential votes
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that i will ever cast is a vote to confirm united states supreme court nominee. it's a lifetime appointment to our nation's highest court. and in fact tomorrow when i cast that vote for judge gorsuch, is will be the first chance i've had as a senator to confirm a supreme court nominee. mr. daines: as it stands today, the united states senate is on the precipice of confirming neil gorsuch to be our next united states supreme court associate justice. just a few short hours ago, my colleagues on the other side caved to the pressures of the far left and unleashed an unprecedented partisan filibuster. first time in 238 years of this institution. i was honored to be at the white house east wing on january 31 with president trump when he made the announcement that judge neil gorsuch would be the nominee to replace antonin
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scalia. judge gorsuch's academic accomplishments are nothing short of being absolutely stellar. his decision to serve as a justice in the highest court of the land is a true testament to his character, his intelligence, his understanding of the law, and his commitment to the constitution. judge gorsuch was appointed by president george w. bush to the tenth circuit in 2006. he was unanimously confirmed any the united states senate. in fact, some of those democrats who did not oppose judge gorsuch then included his harvard law classmate barack obama, vice president joe biden, and minority leader chuck schumer. of utmost importance in a justice is a desire and the ability to apply the law as it
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was intended, not to legislate from the bench. so i can tell you i was very thrilled to hear judge gorsuch say this -- he said, a judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands. on february 9, i met judge gorsuch in my office. let me tell you, he's impressive. we discussed the constitution. we discussed the second amendment. i represent the state of montana. i can tell you, as we look at our constitution and our bill of rights, the second amendment is very important to the people of montana. he will defend the second amendment. we talked about the separation of powers, the role of government and federalism and
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the fourth amendment. and through four full days of hearings, judge gorsuch eloquent i will answered judiciary committee members' questions and certainly before the entire viewing audience, the american people, he showcased his brilliant legal mind. prior to his hearing, he met with 80 senators. he provided the judiciary committee 70 pages of written answers regarding his personal record, 75,000 pages of documents, including speeches, case briefs, opinions, and written works going as far back as his college days. the white house archives produced over 180,000 pages of e-mail and paper records related to judge gorsuch's time at the
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department of justice. during the committee hearing, judge gorsuch sat for three rounds of questioning totaling nearly 20 hours. in fact, when judge gorsuch appeared before the judiciary committee in the united states senate, it was the longest hearing of any nominee in this century. he answered nearly 1,200 questions during that hearing. by the way, that's nearly twice as many questions as justices sotomayor, kagan, or ginsburg received. today's vote was nothing more than a campaign fundraising efforts for senate democrats. in fact, the democratic members who pledged to support him already have threats from liberals of voting them out of office. it's a sad day that this body has become so partisan that for the first time in this body's
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history we had a partisan filibuster to more than a more-than-qualified nominee. judge john king, a judge appointed by democrat jimmy carter, he sent an op-ed for an online legal website, and i quote, as the saying goes, we could do worse. i'm not sure we could expect better or better presently exists. there's just no arguing that judge gorsuch is a mainstream nominee. or take obama's solicitors general, neal katyal. quote, judge gorsuch is one of the most thoughtful and brilliant judges to serve over the last century. as a judge he always put aside his personal views to serve the rule of law. to boot, as those of us who
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worked with him can attest, he's a wonderfully decent and humane person. i personally support his nomination to the supreme court. i remind you that was president obama's solicitors general's words. a nominee of this cal better who -- caliber who has undergone, as i just mentioned, rigorous vetting deserves the support of this chamber. yet democrats walk down the road by changing the precedent of this body and allowing the u.s. senate to become even more partisan. the american people want judge gorsuch, the polls show that. in fact, they demand nine justices on the court and today we are one step closer to confirming him. judge gorsuch is the right replacement to honor the legacy
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of judge antonin scalia. he was widespread support across the state of montana, our agriculture groups, the n.r.a., leaders from across our state, four, count them, four indian tribes in montana endorsed judge gorsuch. the american people deserve a supreme court justice who will uphold the rule of law and follow the constitution. the american people deserve a supreme court justice who doesn't legislate from the bench. the american people deserve judge gorsuch to serve them on the united states supreme court. and as the american people watched judge gorsuch before the judiciary committee, they saw an exceptionally qualified nominee for the highest court in the land, someone who is bright, columbia undergrad, harvard law school, oxford p. -- ph.d.
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i would say that judge gorsuch's intellectual capacities with only exceeded by the size of his heart. this is a kind man, this is a braillant man -- brilliant man, this is an independent jurist. i very much look forward to casting my vote tomorrow to confirm judge gorsuch. mr. thune: mr. president. the presiding officer: the senator from south dakota. mr. thune: mr. president, today we are one step closer to a vote to confirm judge gorsuch to the supreme court. when he vowed on tomorrow, -- voted on tomorrow, and i look forward to that vote, we will be
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confirming a justice to the supreme court who is supremely qualified, who is a mainstream judge who respects the rule of law and the constitution and who will rule impartially from the bench, someone who will call balls and strikes. that is what i believe the american people look for when they look for a supreme court justice. it was always clear that some democrats would oppose any supreme court candidate the president nominated, but i had hoped that partisanship would be somewhat limited. i hope that democrats would want to preserve the senate's nearly 230-year tradition of confirming supreme court justices by a majority vote. i would hope that more than a handful of democrats would join us to confirm one of the most supremely qualified judges in my memory. mr. president, that's not what happened. despite judge gorsuch's qualifications, despite the support for his nomination from
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both liberals and conservatives, the vast majority of senate democrats were determined to block this confirmation. of course, mr. president, it wasn't really ever about judge gorsuch. it's not that democrats were determined to block his confirmation, it's that they were determined to block any confirmation. democrats tried to offer reasons to oppose judge gorsuch, but they struggled to come up with anything plausible. the senate minority leader came down to the floor and tried to argue that he as worried that judge gorsuch would not be, and i quote, a mainstream justice. well, mr. president, over the course of 2,700 cases on the tenth circuit, judge gorsuch has been in the majority 99% of the time -- 99% and 97% of those 2,700 cases, the opinions were unanimous. so i would love to hear, mr. president, an explanation
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for how exactly a judge whose been in the majority 99% of the time is out of the judicial mainstream. was the minority leader attempting to argue that all of the judges on the tenth circuit, including those appointed by democrat presidents are out of the mainstream? well, mr. president, the fact is democratic opposition to judge gorsuch has nothing to do with his qualifications. i doubt any of my colleagues on the other side of the aisle really think that judge gorsuch is out of the mainstream or that he lacks the qualifications of a supreme court justice. but they opposed him anyway. and, mr. president, if they opposed a judge with a distinguished resume and a reputation as a brilliant jurist, if they opposed a judge who is known for his fairness and impartiality, if they opposed a judge whose nomination has been repeatedly supported by
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liberals as well as conservatives, if they opposed a judge who unanimously received the highest possible rating from the american bar association, a rating, i might add, the minority leader called the gold standard for judicial nominees, if they opposed a judge a number of them supported ten years ago, then it's abundantly clear their opposition was not about this judge, but about any judge this president nominates. thus, mr. president, republicans were left with no real alternative than to act to preserve the senate's decision of giving supreme court nominees an up-or-down vote. this is not my preference. i would prefer to leave room to block a judge not fit for office, but it's the only alternative we were left with if we want to confirm anyone to the supreme court. historically, mr. president, confirming judges was not a
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partisan process. during the george w. bush administration,-hour, democrats -- however, democrats decided to change that. they were mad, mad that a republican president was in charge. apparently modern day democrats are wreck on side of the aisled -- reconciled to the fact that it's not always democrats who win. democrats were mad and they decided the historically bipartisan process of confirming judicial nominees was going to change. their filibuster of miguel aestrada was the first time a judicial nominee who enjoyed clear majority support was not confirmed because of a filibuster. democrats ultimately successfully filibustered no fewer than ten bush nominees to appellate courts. that was a massive reversal in the senate history.
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suddenly the normally smooth process of confirming a president's judicial nominees had been turned into an exercise in partisanship. ten years later democrats struck again when they employed the nuclear option when they decided to pack the d.c. circuit, despite the time that the minority leader at the time said would fill up the court had confirmed 99% of his judges. 215 out of 217 under president obama up to that point. and now here we are today. democrats are again mad that they lost an election that they control the nomination process and they once again turned to no holds barred partisanship. they made it clear that no republican nominee would ever make it to the supreme court and thus we had to act to ensure
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that supreme court nominees can receive an up-or-down vote going forward. mr. president, the senate's nearly 230 years the filibuster has been used to block a supreme court nominee exactly once -- one time. supreme court justice abe fortas nomination was blocked by a bipartisan coalition in part over ethical concerns. that's how strong the senate's bipartisan decision of an up-or-down vote on supreme court nominees has been -- 230 years, one time, and it was bipartisan. mr. president, i'm deeply sorry that the democrats were determined to end that tradition. judge gorsuch should never have faced the threat of a filibuster. there was no reason -- no reason other than the most flagrant
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partisan politics to block this supremely qualified nominee for the supreme court. mr. president, as i said, i look forward to tomorrow to this final vote when we have an opportunity to confirm to the supreme court this well-qualified mainstream nominee who fundamentally respects the rule of law and the constitution of the united states. and will act impartially as a justice for the american people. mr. president, i yield the floor. mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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mr. shelby: mr. president. the presiding officer: the senator from alabama. mr. shelby: are we in a quorum call? the presiding officer: we are. mr. shelby: i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. shelby: mr. president, i'd like to address the senate for a few minutes about the nomination of judge neil gorsuch, which is the topic of the day and it's been the topic for weeks up here. it has probably been said, but i'm going to go through some of it again. judge gorsuch is a native of denver, colorado, where he currently resides with his wife
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louise and their two daughters. he's currently 49 years old. but i want to talk to you about some of his credentials. judge gorsuch received his bachelor of arts degree from columbia university in 1988, his juris doctorate from harvard law school in 1991, and a doctorate in legal philosophy from oxford, university, in the u.k. in 2004. at columbia, he was a member of phi beta kappa, a truman scholar at harvard law school, and, mr. president, a marshall scholar at oxford. following law school, judge gorsuch served as a law clerk of federal appellate judge david scintell and then to justice byron white of the u.s. supreme court, and associate justice and any m. kennedy of the supreme court. in 1995, mr. president, judge gorsuch entered private practice as an associate of kellogg,
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huber, hansen, todd, evan and feugel, and he was elected a partner in that law firm in 1998. his practice focused on general litigation in both trial and appellate matters. judge gorsuch left private practice in 2005 to serve as the principal deputy to the associate attorney general at the justice department here in washington. president george w. bush nominated judge gorsuch to the tenth circuit court of appeals located in denver on may 10, 2006. he -- he was confirmed by a voice vote, mr. president, on july 20, 2006. we talk about qualifications for judges. i want to share some of his. judge gorsuch has served over a decade on the u.s. court of appeals for the tenth circuit. he has an outstanding judicial
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record that speaks for itself. he's participated in over 2,700, mr. president, 2,700 appeals on the tenth circuit and 97% of them have been unanimously decided. he was in the majority in those cases 99% of the time. on the approximately 800 opinions that he authored on the tenth circuit, 98% of his opinions were unanimous, even on a circuit where seven out of the 12 active judges were appointed by democratic presidents. hiss his opinions have the lowest rate of descending judges of 1.5%. out of the eight cases he decided by the u.s. supreme court, seven were affirmed and one was vacated.
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judge gorsuch's nomination to the tenth circuit court of appeals in 2006 was met with opposition as he was -- met without opposition and he was confirmed, as i said, by voice vote. notably back then senators serving this time included a lot of my former colleagues. then-senator barack obama, senator joe bieden, senator harry reid, including the minority leader chuck schumer. in march, the american bar association, a.b.a., unanimously gave judge gorsuch a well-qualified rating, their highest possible mark. minority leader schumer and senator leahy have both
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previously referred to the a.b.a. as the gold standard by which candidates with judged. in the air of jurisprudence, judge gorsuch has a mainstream judicial philosophy which he clearly articulated during the senate confirmation here. his record is unequivocal in that he believes the decisions should be based on the law and constitution and not personal preferences. he has a deep commitment to the constitution and its protections that were established by our founding fathers including the separation of powers, federalism, and the bill of rights. judge gorsuch's decisions demonstrates, i believe, that he consistently applies the law as it is written fairly and equally to all individuals.
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additional information about judge gorsuch, the american people, i believe, deserve to have their voices heard in selecting justice scalia's replacement, this is what we're doing. some of my colleagues intend to oppose judge gorsuch based solely on the fact that they disagree with the outcome of the presidential election. during president trump's campaign last year he clearly defined the type of justice he wished to nominate to the current vacancy even published, as you will recall, mr. president, a list of 21 judges who possessed he believed are the necessary qualifications to serve on the u.s. supreme court. following judge gorsuch's nomination, he sat for over 20 hours -- 20 hours of questioning in front of the senate judiciary committee here in the senate, the longest hearing of any 21st century nominee. additionally, he was given 299
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questions for the record by my colleagues on the other side of the aisle. this also is the most in recent supreme court confirmation history. mr. president, simply put, i believe this is the most open and transparent process in choosing a supreme court nominee ever conducted by an administration. by filibustering this nomination, some of my colleagues are breaking a nearly 230-year tradition of approving supreme court nominees by a simple majority vote. i believe the american people spoke clearly when they elected president trump. this, i believe, is the american people's seat and i believe, mr. president, judge gorsuch is an exceptional choice for the supreme court. he deserves an up-or-down vote vote and that's why i believe we're getting ready in the next few hours to confirm him.
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i yield the floor, 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:
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the presiding officer: the senator from connecticut. a senator: thank you, mr.
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president. i ask that the quorum call be lifted. the presiding officer: without objection. mr. blumenthal: mr. president, as we finish the vote just hours ago, i could not help but notice a number of my colleagues on the other side of the aisle high fiving each other. that image stays with me as i stand here now. it saddens me. there is no cause for celebration in what happened in the senate just hours ago. no one should sleep well tonight. no one should underestimate the magnitude of what happened here. damage was done to our democra democracy, to in fact t two
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institutions that are pillars of our democracy, the united states supreme court and the senate itself. today is indeed one of my saddest in the senate, sadder than anything is the damage that has been caused to the supreme court by eroding and undermining trust and respect for an institution that has power only because of its credibility with the american people. it has no armies or police force. all it really has is the confidence and respect of the american people. and today raw political power has been exercised to break the rules and norms of this body so
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that a nominee could be confirmed. and the only way that he could be confirmed was in fact to wreck the rules. a nuclear option that will have enduring fallout and rippling repercussions perhaps in years to come. for myself i would state unequivocally that i hope we will work together on issues where we have common ground, where we can reach common solutions on infrastructure, on tax reform, on immigration issues. but no one should make light of the potential fallout as there
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is in any nuclear explosion from this action today. the senate has broken with decades of bipartisan practice when it comes to the united states supreme court. the practice and tradition was that presidents of either party would consult with members of both parties in this body before making a nomination so as to assure a mainstream nominee. and that nominee would be in the mainstream even before his or her selection so that there was some modicum of comity and so that respect for this body as well as the courts would be preserved. my fear is that the contagion of partisanship will infect the
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court system as a whole, all of the nomination to lower courts as well as the appellate courts will be affected. my hope is that we can avoid that truly cataclysmic outcome. a nuclear explosion in some ways even more deafening and damaging than would be the one used today. because our courts are the bulwark of our democracy, and an attack on the courts is an attack on the only check that we have against tyranny and autocratic erosion of those rights, and that is why the nonpartisanship of our courts is so important. the supreme court of all our courts should be above politics.
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and in fact that is why the 60-vote rule for the supreme court was so important. the supreme court is different. nine justices, appointed for life to the highest court in the land in some ways an aknack ronism -- unaccountable, unelected, sitting for life with the power to strike down actions of elected representatives and an elected executive by issuing words on paper without the direct means to enforce them, depending only on respect and credibility from the american people. to approve nominees by a razor-thin majority is a disservice for the court and to our democracy. supreme court justices do more than just follow the law. they have to resolve conflicts
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in the law and differences among the lower courts where they disagree and in fact ambiguity in the statute where there is lack of clarity, where this body is unable to reach consensus and in effect decides to agree to the extent it can and leave some questions to administrative agencies which rightly are entitled to respect as they implement the law. confidence and trust are essential, and we have undermined it today. our republican colleagues have grateful damaged it by the action taken today. now, i have urged my colleagues to reject neil gorsuch because i believe he is out of the mainstream, because he failed to answer questions about whether he agreed with established core
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precedents essential to rights of privacy and equality under the law, because he has a judicial philosophy that would involve substituting the judgments of courts for administrative agency and abandoning the chevron doctrine, and because he favored in many of his actions, opinions, writings the interests of corporations over individual rights. we have debated the merits of this nominee, and i believe that the evasion of questions that i put to him repeatedly and others leaves us with the inescapable conclusion that he passed the trump test, that he is not a
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neutral caller of balls and strikes, that he is in fact annal colight of the -- an alcolyte of the right-wing groups that screened and suggested his name, and that he would carry out not only the trump litmus test to overrule roe v. wade and strike down gun violence provisions but also other unknown decisions that would implement that far-right conservative agenda. we can debate whether that view is right or wrong, but today's sadness for myself -- and it is one of my saddest in the senate -- goes more to the institution that has been demeaned and degraded. the united states senate and the supreme court. my hope is that maybe it will be a turning point, maybe we can
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reconstruct the sense of bipartisanship and comity that existed for so many years. many of my colleagues on the other side have expressed to me their misgiving about what was done today. but the obstruction of merrick garland's nomination, as one of my colleagues put it, filibuster of all filibusters, was another step in a continuing progression culminating in today's action, that very much betrays the spirit and values of bipartisan selection of supreme court nominees because the highest court in the land is different. i had the extraordinary honor to clerk for a justice of the united states supreme court, harry blackmun, who was
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appointed by a republican president, richard nixon. he grew as a justice, and surprised a lot of people. he no doubt surprised the president who appointed him. and that is what happens to really extraordinary men and women who serve on our courts as well as in the united states senate. they grow in the job. and choosing a united states supreme court justice is one of the most solemn and important duties that a president has and confirming her or him is one of the most important tasks we had in this body. even at the most difficult and contentious times, as i served then as a law clerk and as i have litigated since then for several decades, i have never
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doubted that judges were working in good faith to uphold the rule of law. whether they rule my way or not, i believe that they -- i believed that they were working to try to be above partisan politics and uphold the rule of law and do the right thing to follow the law, but the supreme court does more than follow. it leads. today's vote is a significant challenge to that principle and perhaps the most difficult that we have seen in recent history. it threatens to exact profound damage on the confidence and trust the american people have in the supreme court and perhaps in courts overall, and that is a danger for all of us. in my view, when the history of this time is written, there will
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be two heroes. the free press who have uncovered abuses and wrongdoing, despite opposition from many powerful forces and our independent judiciary that has upheld their right to do it and also the rights of countless americans in many, many areas of law. today's action threatens those two forces for good, two institutions in our society. it undermines our rules. it would not have happened without a choice made by the republican leadership that they were willing to break the rules to achieve this result. i am determined to try to move forward in a positive way, in legislation as well as in
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protecting and enhancing our courts, giving them the resources they need to do their job and law enforcement the resources it needs to uphold the rule of law. we cannot hold the supreme court hostage to any ideology, and that is a lesson from today and from the past year that we should all be -- all heed. mr. president, i will continue to talk about this topic because i believe it is so profoundly important to our nation, but for now, i yield the floor, and thank you. mr. graham: when they write the history of these times, i'm sure when it comes to senate history,
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this is going to be a chapter, a monumental event in the history of the senate, not for the better but for the worse. after we're all long dead and gone, somebody may be looking back and trying to figure out what happened and what motivated people. i'm going to tell you what's motivated me since i have been in the senate. an understanding that the job of a senator when it comes to advise and consent is not to replace my judgment for that of the president, not to nullify the election, but to be a check and balance to make sure that the president of a -- either party nominates someone who is qualified for the job and is capable from a character point of view of being a judge of us all and has the intellect, background, judgment, experience to carry out the duties of the supreme court justice. i expect that when president obama won the white house, that
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he would pick judges that i would not have chosen based on our different philosophies of liberal, conservative jurisprudence. so this is what greg craig, the former white house counsel in the obama administration said about elena kagan, who is now on the court. kagan is a progressive in the mold of obama himself. this is what vice president biden's chief of staff ronald plane said about elena kagan. elena kagan is clearly a legal progressive and comes from the progressive side of the spectrum. i think that was an accurate description of her and sonia sotomayor. they both are progressive judges that come from the progressive side of the judicial spectrum. both highly qualified, capable women who had a stellar legal
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record even though they had outcomes i did not agree with, they were certainly in the mainstream. both had been judges and i think he chose people that i would not have chosen but were really highly qualified. i was the only member of the judiciary committee on the republican side to vote for either one of the -- ms. kagan or ms. sotomayor because i used a standard that i thought was constitutionally sound. i'm not telling any other senator what they should do. i'm just trying to explain what i did. the federalist papers number 76, written april 1, 1788, by mr. hamilton said to what purpose then require the cooperation of the senate? it would be an excellent check upon a spirit of favoritism in the president. it would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from
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personal attachment and from a view to popularity. so from hamilton's point of view, it was a check and balance against a crony or an unqualified person, someone who was popular but not qualified for the job, somebody who was appointed because they were close to the president, not qualified for the job, somebody that was appointed because they were a favorite son of a particular state that would not be fair to everybody else. when you look at the history of the advise and consent clause, it's pretty clear that i don't think the founding fathers had in their mind that one party would nullify the election when the president of another party was chosen by the people when it came to supreme court confirmation because they chose somebody they did not agree with philosophically. so i voted for elena kagan and sonia sotomayor knowing that they come from the progressive
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judicial pool and neil gorsuch is one of the finest conservatives that any republican president could have chosen. and he is every bit as qualified as they were. his record is incredible. ten and a half years on the bench, 2700 cases and one reversal. he received the highest rating of the american bar association, well qualified just like sonia sotomayor and elena kagan. to merit the committee's rating on well qualified, a supreme court nominee must be a prominent member of the legal profession and breadth of experience, meet the very high standards of integrity, professional competence and judicial temperament. the rating of the well qualified is reserved for those found to merp rit the committee's -- merit the committee's strongest, affirmative endorsement. by unanimous vote on march 9, the committee awarded judge gorsuch its highest rating of well qualified.
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just like they did for sonia sotomayor and elena kagan. 2700 court decisions, one reversal, praise from all areas of the law left, right and middle. the a.b.a. reported 900 pages describes a very thoughtful man and incredible judge, a good person. so i don't think anybody can come to the floor and say, even though you may disagree with an outcome, that judge gorsuch is not qualified using any reasonable standard to be chosen by president trump. he's every bit as qualified as the two obama appointments. so clearly qualifications no longer matter like they used to. anthony scalia -- antonin scalia who judge gorsuch hopefully will soon be justice gorsuch was confirmed by the senate 98-0.
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ginsburg, ruth bader ginsburg 96-3. i would argue you could not find two more polar opposite people when it comes to philosophy than justice ginsburg and justice scalia and they became very dear friends. but nobody in their right mind would say there's not a difference in their judicial philosophy. strom thurmond, my predecessor, very conservative man from south carolina, voted for miss ginsburg. clearly a conservative would not have chosen her because she was the general counsel of the aclu. i can tell you that ted kennedy and other people on the progressive side of the aisle would not have voted for antonin scalia based on philosophy. something's happened in america from 1986 and 1993.
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the constitution hasn't changed. something has changed. and i think the politics of the moment have taken the founding fathers' concept, turned it up side down, that from the time scam was put on the court, ginsburg was put on the court, everything has changed. so i was here when the first effort to fillibuster judicial nominations was made in ernest, the first term of bush 43. there was a wholesale filibustering of circuit court nominees of president bush. i was part of the gang of 14 that broke the filibuster. we lost a couple of nominees but we did move forward and we said there would be no further fillibuster of judges unless there was an extraordinary circumstance. that allowed alito and roberts to go forward. both of them got a good vote. alito we had to get cloture
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vote. we got 78 votes. clarence thomas was probably the most controversial pick in my lifetime, and if you can remember that hearing, it was just, you know, front page news every day and on tv every night. not one democratic senator chose to filibuster him. he got an up-or-down vote. and he passed i think 52-48. and they could have chosen to require cloture but they didn't. so this is the first time in the history of the senate that you've got a successful partisan fillibuster of a supreme court nominee. abe fortas was filibustered to be chief justice of the supreme court by almost an equal number of democrats and republicans because of ethical problems and he eventually resigned. so we're making history today. the first successful fillibuster in the history of the united states senate to deny and up-or-down vote on a nominee to
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the supreme court. and it breaks my heart that we're here. i don't know what to do other than change the rules to have some sense of fairness. i can't believe that judge gorsuch is not qualified by any reasonable standard. i voted for sotomayor and kagan. nobody even asked for a cloture vote. they went straight to the floor. one got 62 votes, 63 votes. the other got 68 votes. i don't know why we can't do for judge gorsuch what was done for sotomayor and kay began. -- and kagan. we keep hearing about judge garland. judge garland's a fine man, would have been a very good supreme court justice. justice scalia died in february of 2016 after three primaries were already held. the nominating process was well on its way for picking the next
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president so this was an election year. and i remember what joe biden said in 1992, the last year of bush 41's term when there was a suggestion that somebody might retire in the election year, and he said basically if someone steps down, i highly recommend the president not name someone, not send a name up. if he, bush, did send someone up, i would ask the senate to seriously consider not having a hearing on that nominee. it would be our pragmatic conclusion that once the political season is under way and it is, action on a supreme court nomination must be put off until after the election campaign is over. that's what vice president biden said when he was chairman of the senate judiciary committee in 1992. that made sense. president trump put a list of names out that he would choose from if he became president,
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which was historic. part of the contest in 2016 was about the supreme court. i have no problem at all saying that once the campaign season's afoot, you let the next president pick and that's no slam on judge garland, a fine man. i have zero doubt that if the should had been on the other foot, there would have been a different outcome. i can't imagine harry reid being in charge of the senate in 2008 and would allow president bush in his last year to nominate somebody to the court and they would approve that decision once the campaign season had started in 2008. i say that knowing that it was senator reid who chose to change the rules in 2013 which broke the gang of 14's agreement in part. and here's what harry reid said in 2005. the duties of the united states senate are set forth in the constitution of the united states.
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nowhere in that document does it say the senate has a duty to give presidential nominee a vote. all i can say is in the hundred-year history of the senate from today going backwards, there's been one person put on the court when the president was of unparty and itself senate was -- of one party and the senate was held by the other party and a vacancy occurred in the last year of a presidential term. we've done nothing that would justify judge gorsuch to be treated the way he's been treated. and he's been treated pretty badly. here's what nancy pelosi said. if you breathe air, drink water, eat food, take medicine, or any other way interact with the courts, this is a very bad decision. all i can say is that judge gorsuch does not deserve that. that is a political statement out of sync with the reality of who this man is and the life he led and it's that kind of
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attitude that's go gotten us hee today. i can also say there's blame on my side, too. nobody has clean hands completely on this. i can remember when justice sotomayor was nominated. she made a speech to the effect that a white man would have a hard time understanding what life is like for minorities. and that was taken to believe that she somehow could not be fair to white men. that was a speech she gave provocative but i never believed it was an indication that she was somehow prejudice against white men. and the reason i concluded that is everybody who had known her, including white men, said she was a wonderful lady. i remember elena kagan, the attack on our side was that she joined with the administration of harvard, to kick the rotc unit off campus. somehow that made her unpatriotic. well, my view was that that was the position of a very liberal school called harvard and no one
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could ever convince me that elena kagan was unpatriotic. she seemed to be a very nice, highly qualified lady and that decision by harvard could not be taken to the extreme of saying that she's not fit to serve on the court. so i was able to look beyond the charges leveled at these to ladies on our side to understand who they really were. and when you look at people who know these judges the best, they can tell you the most accurate information. in the case of kagan and sotomayor, there were a lot of people left and right who said they were well qualified, fine ladies. when you look at what was said about judge gorsuch in the a.b.a. report, just an incredible life well lived. so here we are. we're about to change the rules. up until 1948 you could -- it was a simple majority requirement for the supreme court. as a matter of fact, most supreme court nominations in the history of the country, a large
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percentage were done based on a voice vote. it's only modern times where we've gotten this political contest over the court. probably started with judge bork. some blame to go around on both sides. i can say this. that while i've been here, i've tried to be fair the best that i know how to be. i voted for everybody i thought was qualified. i said as to judge garland let the next president decide. at the time i said that in march of 2016, i had no doubt in my mind that donald trump would lose, that hillary clinton would pick somebody probably more liberal than garland. but it made sense to me in that stage in the process to let the next president pick. so the fact that we're filibustering this man says a lot about the political moment. if this were a controversial character, i might understand it better. so when you look back and try to figure out what we did and how
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we got here, i can say this. that we took one of the best people that president trump could have nominated, somebody i would have chosen if i'd gotten to be president. i think paul ryan, mike pence, any of us would have chosen neil gorsuch. and he was denied an up-or-down vote. and that says all we know -- all we need to know about the political moment. it will change the rules. it will have an effect on the judiciary, and it won't be a good one because in the future judges will be selected by a single party, if you have a majority. no requirement to reach across the aisle which means the judges will be more ideological. when you have to go over there and get a few votes or when they have to come over here and get a few votes, you're going to water down a bit some of your choices and the most extreme ideological picks available to a party are probably not going to be able to make it through. now they will. i think what you'll see over time is that the most
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ideological people in the senate are going to have a lot of say about who's chosen by the president. so it will change the nature of the judiciary. to the senate itself, every senate seat now becomes a referendum on the supreme court. so when we have a contest for a senate seat, it's not just about the senate. it's about the seat affecting the outcome of the court because all you need is a simple majority. whether or not it leads to changing the legislative fillibuster which would be the end of the senate, i don't know, but i don't think it helps. there will be a majority around here one day, a president of the same party, control of the house, and they'll get frustrated because the other side won't let them do everything they want to do, and they'll be tempted to go down this road of doing away with the 60-vote requirement to pass a bill. that will be the end of the
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senate. we made that more likely by doing this. it was more likely in 2013. i hope i'm wrong but i think we set in motion the eventual demise of the senate. one thing i can say on an optimistic note, that while i'll vote to change the liewls for this judicial -- the rules for this judicial legislation, i will not vote to change the rules -- i don't know what i go home and tell people why sotomayor and kagan got on the court and gorsuch couldn't. why president obama was able to pick two people who were highly qualified and trump wasn't able to pick one person highly qualified. you just can't have it where one side gets their judges and the other side doesn't. so to rectify that wrong, i guess we'll have to change the rules. not a good day. hoping it would never come, but it has.
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and to the extent that i have been part of the problem, i apologize to the future, but i think i have, at least in my own mind, tried to do the right thing as i saw it. i took a lot of heat for voting for their judges at a time when there was a lot of heat on our side. i'm glad i did. not that i'm not partisan. i certainly can be, but i just think the history is going down a very dark path -- the senate is going down a very dark path here, and there will never be another 98 votes for a scalia and 96 votes for a ginsburg, and that's a shame, because even though they may be different, they have one thing in common. they're good people who are highly qualified to sit on the court, and i can understand why a liberal president would choose one and a conservative president would choose another. what we're doing today is basically saying we don't really care about election results
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anymore in the senate. with that, i yield. the presiding officer: the senator from louisiana. mr. kennedy: thank you, mr. acting president. senator graham, my fellow senators, our constituents in the gallery. a lot of what's gone on today, mr. president, may seem very complicated. we've heard a lot of terms being thrown around -- cloture, the nuclear option -- but really the question that we were faced with today in the u.n.c. was -- in the united states senate was simple and it continues to be very straightforward, in my judgment. should we have an up-or-down vote on the nomination of judge neil gorsuch to be an associate justice of the united states supreme court.
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and the senate earlier today, mr. president, voted to do that. and i think it's very important for the american judicial system and for the american system of democracy that the united states senate be allowed to vote on judge gorsuch's nomination to the united states supreme court. it wasn't enough to only vote on a motion to end debate. we also needed to be allowed to vote on the actual nomination, yes or no. now, unfortunately, our friends on the democratic side of the aisle decided to filibuster in order to make it impossible for us to vote on this judicial nominee without modifying the rules of the united states senate, and that's what we did earlier today. i don't know that anybody did it
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happily, but certainly a majority of the -- of the united states senate believed that the american people deserve an up-or-down vote, yea or nay, stand up and be counted in front of god and country. do you want judge neil gorsuch to be on the supreme court or do you not, and that vote is going to take place tomorrow afternoon. now, the constitution, mr. president, says that the president of the united states -- and i'm quoting now -- shall nominate and by and with the advice and consent shall appoint judges of the supreme court, end quote. and i don't need to tell you, mr. president, that this is an extremely important part of our separation of powers. it's vital to protecting the integrity of the supreme court, the work that all of us do, not just members of the judiciary committee, but every member of
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the senate does in vetting our nominees and making sure they are qualified and independent, as is neil gorsuch. he is enormously important for the protection of liberty itself. and let's not ever forget, mr. president, what we are protecting. we are protecting justice and we are protecting liberty. we're not supposed to be protecting a certain point of view. we're not supposed to be protecting a certain policy practice. we're not supposed to be protecting a certain political party. and i hope that tomorrow when we finally get the opportunity to vote up or down on neil gorsuch for membership on the greatest tribunal in the history of civilization, in my judgment, the united states supreme court, that we will consider his
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nomination in light of how it will affect our country. when we look at his nomination from that perspective, mr. president, and leave the politics in the last few years in the rearview mirror, i think we can analyze his nomination with a lot more clarity. now, alexander hamilton, who i think most americans admire, said in federalist number 78, he said that the court has, quote, neither force nor will but merely judgment. merely judgment. and i think that's what we're all looking for or should be in a nominee to any court, but especially the united states supreme court. we're not looking for somebody with a certain policy preference. we're not looking for people with ideas on how the law can be
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improved, because the role of a judge is not to make law. it's to interpret the law as made by the legislative body as best that judge can understand it. and that's why, mr. president, we need someone like neil gorsuch, in my estimation, with good judgment. neil gorsuch, i have spent -- i sit on the judiciary, mr. president. i have spent 20 to 40 hours with him or with people who know him well, hearing their testimony. i have read his opinions. as far as i'm concerned, he is as good as it gets. i can't imagine that president trump could have picked better. he's a thoroughbred, he's a legal rock star, if you read his opinions, you will see he is painstaking in his application of the law to the facts before him. he writes beautifully. his communication skills are absolutely


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