Skip to main content

tv   Senate Debate on Supreme Court Nominee Senators Cornyn Through Wyden  CSPAN  April 7, 2017 4:02am-5:11am EDT

4:02 am
traditions of the senate and get past this unpartisan filibuster. therefore, i raise a point of order that the -- is a majority vote on all nominations. the presiding officer: the precedent of november 21, 2013 did not apply to nominations to the supreme court. those nominations are considered under the plain language rule 22, the point of order is not sustained. mr. mcconnell: mr. cornyn: madam president? the presiding officer: the majority whip. mr. cornyn: madam president, may we have order. the presiding officer: the senate will be in order. the majority whip. mr. cornyn: madam president, the senate has just restored itself to an almost unbroken tradition of never filibustering judges.
4:03 am
we have actually restored the status quo before the administration of president george w. bush. it was during that administration when some of our friends across the aisle along with some of their liberal law professor allies dreamed up a way of blocking president george w. bush's judicial nominees, and that was by suggesting that 60 votes was really the threshold for confirming judges rather than the constitutional requirement of a majority vote. it's been a long journey back to the normal functioning of the united states senate. and it's amazing that it's taking a nominee like judge gorsuch to bring us back to where we were back around 2001.
4:04 am
we've been debating and discussing this nominee for a long time now, and they've tried -- the opponents of judge gorsuch have tried time and time again to raise objections to this outstanding nominee, a nomination that no one in the senate opposed ten years ago when he was confirmed to a position on the tenth circuit court of appeals. they claimed he wasn't mainstream enough. they've said this was a seat that really should have gone to merrick garland. they've even accused him of plaguerism. all of these arguments have no merit whatsoever. and really represent desperate attempts to try to block this outstanding nominee. their claims were simply baseless. and that became even clearer as folks from across the political spectrum and newspapers from across the country urged our democratic colleagues to drop their pointless filibuster and
4:05 am
allow an up-or-down vote. what also came to light is the type of man judge gorsuch is, a man of integrity, a man of strong independence. in other words, exactly the kind of person you would want to serve on the united states supreme court. they even claimed that judge gorsuch went out of his way to side with the big guy against the little guy ignoring the fact that during his ten years on the tenth circuit court of appeals where these judges sit in multijudge panels, that he was part of the majority decision 99% of the time. 97% of those cases were unanimous in multijudge panel decisions on the tenth circuit court of appeals, hardly a radical. it actually is a remarkable record of a consensus builder, someone who uses his great intellect, his education, his training to build consensus on a
4:06 am
multijudge court, exactly the kinds of skills that are going to be so important for him to use on the supreme court of the united states. so as i said, ultimately today was a culmination of years of obstruction by our democratic colleagues when it came to judicial nominees. when i came to the senate in 2003, the democrat strategy was well under way to obstruct lower court judicial nominees from the george w. bush administration. and later in 2013 when there was a democrat in the white house and it suited them to do so, they decided to do away with the same tool they used and went nuclear, lowering the threshold from 60 to 51 majority vote for circuit court nominees and district court nominees. it took a gang of 14, seven democrats and seven republicans to try to work through the differences back around 2006 time frame which resulted in half of president george w.
4:07 am
bush's nominees to the circuit courts getting confirmed and half not being confirmed. the standard was adopted by the so-called gang of 14 that only under extraordinary circumstances would the fillibuster be used but that agreement expired in 2013. well, the minority leader and his colleagues like to say back then it was necessary to restore a majority vote. he did that just last sunday. he said our republican colleagues had been holding back on just about all of so many lower court judges, including the very important d.c. circuit court that they were forced to engage in the nuclear option back in 2013. but the facts really belie what the democratic leader claimed, its terms of the necessity of going nuclear back then.
4:08 am
in fact, prior to 2013, the senate confirmed more than 200 of president obama's judicial nominees and rejected just two. more than 200 confirmed, two rejected. that hardly rises to the level of extreme obstruction or partisanship. that's a 99% confirmation rate for president obama. so let's make it clear just how this began. it started with democratic obstruction under a republican administration in 2001, and it's been continuing now under a new republican administration in 2017. so we really have come full circle to restore the status quo before 2001 when our democratic friends started down this path. president trump has by all accounts selected a judge with impeccable qualifications and the highest integrity. not one of our democratic colleagues has been able to offer a convincing argument against him, and that's why several of our democratic
4:09 am
colleagues have crossed the aisle to support his nomination. and i thank them for that. i think more would join if they didn't fear retribution from the radical elements in their own political party. so today republicans in the chamber are following through on what we said we would do. we said we would let the american people decide who would select the next supreme court nominee, and then we would vote to confirm that nominee. the american people on november 8 selected president trump. president trump nominated judge neil gorsuch. and tomorrow we will confirm that nominee and deliver on that promise. mr. president, i yield the floor. mr. gardner: mr. president? the presiding officer: the senator from colorado. mr. gardner: thank you, mr. president. over the next several hours, we'll have the final opportunity to debate the confirmation of supreme court justice nominee
4:10 am
neil gorsuch. this has been a lengthy process this week as we've heard from senators on both sides of the aisle come to the floor and talk about their support or their opposition to judge gorsuch's nomination to the supreme court. i've had several opportunities over the past weeks, months to personally visit and speak with judge gorsuch who -- who i've known from colorado. i have had an opportunity to listen to my colleagues address the chamber, to watch the confirmation hearings in the judiciary committee day after day it seemed that that confirmation hearing proceed. and of course have gotten to know judge gorsuch over the past several years. we're proud that we have a coloradan nominated to the nation's highest court, that he would be the second coloradan to serve on the supreme court. the other one being of course justice byron white, justice byron white also led the nfl in
4:11 am
rushing one year and while judge gorsuch will never live up to that part of the supreme court legacy for coloradans, we know that judge gorsuch is an avid outdoorsman, a fly fisher, expert level skier, somebody who understands public lands. and i thin -- i think having that kind of expertise on our nation's highest court will serve this country well. i think it's important to understand that his roots stand as the roots to built the west. as a fourth-generation coloradan, someone who hails from a state that's independent, that takes pride in its libertarian streak, love of outdoor opportunities, understanding agricultural industry, the state that really does have it all. from the eastern plains to the western slope, the great beauty of our state. neil gorsuch understands that. he served on a court, the tenth circuit court that is housed in denver that represents 20% of the land mass of our state. judge gorsuch's family, as i mentioned, really does show the
4:12 am
grit and determination of those who built the west. his grandfather is somebody who worked in union station, somebody who grew up driving trolleys back in the time when denver was a trolley town. his other grandfather, of course, was a physician, both of whom had -- experts in their field, medicine. one grandfather helped found a law firm, gorsuch-kirgis. very prestigious firm in denver. but it's judge gorsuch's experience, his high qualifications of academics that he brings to the court. having received degrees from columbia, oxford, harvard. as i mentioned previously, the most important academic experience being the university of colorado where i think he spent at least some time in the summer attending and also teaching, of course, as a professor at my alma mater, the university of colorado school of law. has all helped him build what he
4:13 am
is today. and that is a very mainstream jurist, an incredibly exceptional legal mind. one of the brightest jurists this country has to offer. somebody who's known as a -- as a feeder judge, providing clerks to the supreme court, and who has the respect of the colorado legal community. i want to talk about some of these things. i have come to the floor multiple times and i have talked about his qualifications and i have talked about the fact that the people who know him best aren't the people in washington, d.c., but the people who have practiced in front of his court in denver, the people who know him personally out in colorado. here's what those individuals have said. they police chief that judge gorsuch deserves -- they believe that judge gorsuch deserves an up-or-down vote. bill ritter, former democratic governor of the state of colorado, believes that judge gorsuch deserves an up-or-down vote. now we will have it. we have invoked cloture. we will have a final debate on
4:14 am
friday night and a final vote on whether or not he should be confirmed. people like steve farber, the cochair of the democratic national convention in 2008 in colorado have talked about the need to confirm judge gorsuch. and so the debate that we enter now is not one of whether or not he will have an up-or-down vote. he's going to have an up-or-down vote, but it's whether or not we should confirm him, actually give him the yes vote. i urge my colleagues on both sides of the aisle to vote in favor of judge gorsuch's confirmation. some of the arguments i have heard over the past several weeks on the floor, listening to some of the arguments on the floor, it's quite interesting to me that some of the arguments we hear seem to be at odds with each other. presiding over the senate yesterday, i heard people talk about how they don't think that neil gorsuch will stand up to the president. they're concerned that he won't express the kind of independence the judiciary commands, that he won't be somebody to stand up to
4:15 am
the president of the united states. they often cite some of the comments or treats that the president has made and then fail to mention the fact, though, that on the very time, at the very time that one of those tweets was mentioned, questioning the judiciary that judge gorsuch in a meeting with one of our democratic colleagues actually said objections. he said he objected to the statements the president had made, expressing his independence, talking about how it was demoralizing what he had heard. showing very much independence. but the second argument that you often hear for those who have decided to oppose this mainstream jurist is that they are afraid he won't show enough deference to the president, and then they say they're concerned about his language as it relates to the chevron deference, the chevron doctrine. whether or not judge gorsuch is going to be willing to overturn
4:16 am
the chevron doctrine. now, i find these two arguments kind of interesting because on one hand, you have an argument saying we're afraid he's not going to stand up to the president of the united states, and then on the other hand you have an argument saying that we're afraid he's going to stand up to the administrative state of the president of the united states. because that's what the chevron doctrine does. it gives great deference to the regulatory body, to the administrative state. now, here's another irony. the administrator of the e.p.a. in 1984 was judge gorsuch's mother, ann berford. the administrator of the e.p.a., the first woman to serve as e.p.a. administrator who was the subject of the chevron doctrine. not only is he willing to stand up to the president and the administrative state of the president, but he's willing to overturn a case that was the subject that his own mother was a subject to.
4:17 am
i have also heard comments from colleagues on the other side of the aisle that judge gorsuch is not a mainstream jurist. this argument i think can be dealt with in a couple of ways because there are some pretty good statistics to refute these arguments. 97%, 97%. 97% is the number of times in the 2,700 opinions that he was a part of, 97% represents the time that that was a unanimous decision. judge gorsuch didn't serve only with conservative appointed judges. he didn't serve with only republican nominees. judge gorsuch served with republican and democrat nominees, appointments approved by the senate. and in 97% of the cases, judge gorsuch ruled, decided in unanimous decisions. now, the other statistic that i think is even more revealing, of
4:18 am
course, of whether or not judge gorsuch is a mainstream judge is 99%. 99% is the amount of time that judge gorsuch ruled with the majority of the court, made opinions with the majority of the court. now, i heard a comment yesterday from a colleague who said that judge gorsuch was never intended to be a mainstream nominee. now, if judge gorsuch was never intended to be a mainstream nominee, do you think we would -- we would see a judge before us that has support from the 2008 democratic national convention chairman? if judge gorsuch was never intended to be a mainstream nominee, do you think we would have decisions by the democratic governor of colorado, former democratic governor of colorado to demand or ask for an up-or-down vote? if judge gorsuch was never intended to be a mainstream nominee, do you think the president would have nominated somebody who agreed 99% of the time with his colleagues on the bench? colleagues who came from
4:19 am
appointments given by republican presidents and democrat presidents. it the arguments over whether or not judge gorsuch is going to be with the little guy or he spends too much time defending the big guy. let me just again go back to the people who know judge gorsuch the best, who practiced in front of his court. now, here's a statement from a denver attorney and democrat on representing underdogs before judge gorsuch. this is in the denver post. the statement, he issued a decision that most certainly focused on the little guy. but yet the story from the opposition here out of 2,700 cases is oh, my gosh, this is a person who has never defended the little guy. well, here is somebody who has practiced in front of them and practiced in front of his court who absolutely believes he focused on the little guy. so we have a judge who agrees with the majority of the court most of the time, 99% of the
4:20 am
time, 97% of the time it's a unanimous decision, who lawyers practicing in front of him believe that he represents the little guy. we've heard from leading democrat voices in colorado who support him. the a.b.a.'s highest qualifications, rankings, ratings believe it, but then the question becomes what are we looking for in a justice? maybe that's the biggest argument here. maybe the argument should be about, you know what, what are we looking for in terms of philosophy, ideology? we have seen his ideology and his philosophy and when he has testified before the judiciary, when he has testified -- what he has stated and passed through writings is that he is somebody who is going to follow the law. he is somebody who is going to take a decision where the law leads him. not somebody who will take a decision where his personal beliefs or politics take him. that's the kind of judge we want on the highest court. that's the kind of justice that we want. somebody who is not going to decide a policy preference from the bench of the supreme court,
4:21 am
not somebody who is going to take a look at a public opinion poll or somebody who is going to take a look at a focus group and make a decision, but somebody who will rule by the law. i have heard colleagues come to the floor and talk about their experiences where they were given decisions to read without given the law and decided whether or not just the facts. they were given just the facts in the case. they said would you have -- how would you have decided this case? and then they show them the actual ruling, the actual holding in the case. some people believe, well, that's not the way we would have decided because we don't feel that that was a good outcome, that we don't feel that that was the right policy. it's not the job of a justice to put their thumb on the scale of policy. it's the job of a justice to be a guardian of the constitution, to defend the constitution, to follow the law and to decide cases based on the law.
4:22 am
not on feeling, preference, politics, polls, public opinion. we have a justice who has said -- we have a judge, nominated for justice, who has said that a judge who believes -- who agrees with every opinion that they have issued is probably a bad judge. he's paraphrasing other judges and justices throughout our history. it's because he knows that it's not his job to issue opinions or decisions or to decide a case based on being a republican or a democrat. it's not his job to decide a case based on whether he was nominated by president trump or president obama or president bush. it's his job to look at the law, to leave policy decisions to the legislative branch. that's what we have to do. that's what judge gorsuch has said he will do. and so these arguments, they just don't hold water. they don't hold water, that he's
4:23 am
not looking out for the interests of our citizens because here clearly he is. democrats who have practiced before him in court have said as much. the argument that he won't stand up to the trump administration, we know it. he said it in front of our democratic colleagues that he would stand up to the president. he's said that he rejected a tax on the court. and we also know that when it comes to the chevron doctrine, which seems to be sacred ground now, that there is this ironic argument taking place, because you want somebody who will stand up to the administration but then you're concerned that he's interested or concerned that we've taken the chevron deference, the doctrine of chevron deference too far. now, which is it? do you want a judge who is going to stand up to the administration or do you want a judge who is not going to stand up to the administration? because it sounds like the arguments are trying to have it both ways.
4:24 am
but at the bottom line, we know judge gorsuch to be a person who is imminently qualified, a mainstream jurist who has the respect and admiration of judges around the country, who has the admiration and respect of fellow jurists and legal professionals throughout colorado, and we know that he will make this country proud, and he's certainly going to make colorado proud as he receives his confirmation to the nation's highest court. and i hope as we spend these hours debating, that we can realize this senate should operate in a bipartisan fashion, that we should confirm judges who are clearly mainstream. mr. president, i yield the floor. the presiding officer: the senator from colorado. mr. gardner: i have seven requests for committees to meet during today's session of the senate. they have the approval of the majority and minority leaders. the presiding officer: without objection.
4:25 am
duly noted. mr. gardner: yield the floor. mr. coons: mr. president. today is the day when many senators are speaking about judge gorsuch and about the supreme court. and as i think many know in the last week in the judiciary committee hearings and in other settings, i have announced i will vote against judge gorsuch on the final vote tomorrow, and i believe i have made my reasons for my opposition clear. i have thoroughly reviewed and considered judge gorsuch's record and where he fits within american jurisprudence and i have no second thoughts about my decision. but as i look around at what has just happened on this senate floor, i am sick with regret. so i rise now to speak in defense of the senate. the senate has been hailed by many, including our nominee to the supreme court, judge gorsuch, as the world's greatest
4:26 am
deliberative body, and yet today i think one more blow has been struck at that title and reality. the late senator robert byrd who served in this chamber for 51 years would famously remind new senators take in war and in peace, the senate has been the sure refuge and protector of the rights ever the states and of a political minority. of course, although senator byrd was the longest serving senator as a delawarean, i grew up in the tradition of joe biden would left its ranks only to ascend to the vice presidency and spend eight more years as its presiding officer. since i had the honor of assuming senator biden's former seat, i have committed to following his example of working across the aisle through republican and democratic administrations with whomever is willing to roll up their sleeves and get to work for the american people.
4:27 am
and i know my colleagues share in this foundational commitment to serve our constituents and country. but as i look around at what just happened on this floor with too little discussion of its lasting consequences and too little visible concern or even emotion, i must ask the question where are we headed? you can't see it but around this chamber are white marble statutes, busts of former presiding officers, of former vice presidents of the united states. they are in the halls outside this chamber. they are at the upper level of this chamber, in the galleries and all the former vice presidents are memorialized in these white marble busts. and former vice president stevenson, the grandfather of the illinois governor who ran for president in the middle of the 20th century, he said when
4:28 am
he delivered his farewell address to the senate, on his last day in office as the presiding officer of the senate in 1897. he said, and i quote, it must not be forgotten that the rules governing this body are founded deep in human experience. they are the results of centuries of tireless effort to conserve, to render stable and secure the rights and liberties which have been achieved through conflict. by its rules, the senate wisely fixes the limits to its own power. of those who clamor against the senate and its mode of procedure, it may truly be said they know not what me do. -- what they do. in this chamber alone are preserved without restraint two essentials of wise legislation and good government, the right of amendment and of debate. closed quote. it was exactly that right, those rules that were assaulted today but have been under assault for
4:29 am
a long time. in recent days i have reached out to my republican and democratic colleagues trying to see if there was some way we could reach a reliable consensus agreement to safeguard these institutional values and avoid the events of today and tomorrow. i told my colleagues i was not ready to end debate on judge gorsuch's nomination until we could chart a course for the senate to move forward on a bipartisan basis when considering future supreme court nominations. i think for us to get to any constructive conversation about moving this senate forward requires owning the role that all of us, each of us have played over our time here, whether a few years or decades in bringing us to this point. i for one will say i have come over time to regret joining my democratic colleagues in changing the rules for lower court nominations and
4:30 am
confirmations in 2013. of course, i could give an entire speech on the obstruction that led us to that point. i could document the republican and democratic deeds and misdeeds of the last congress and the congress before that and the decade before that. as my more seasoned and seniored colleagues demonstrated in the judiciary committee deliberations, those who have served here longest know best the record of grievance, of congresses in decades past. and i anticipate that many of my colleagues will come to regret the decisions and actions taken today and tomorrow in this congress and in congresses ahead, and instead of focusing on that shared regret, i want to work together not to continue to tear down the traditions and rules of the senate but to find ways to strengthen and fortify and sustain them.
4:31 am
i worked to try and find a solution to get past this moment on the brink. i wanted to ensure our next supreme court nominee would be the product of bipartisan consultation and consensus as was safeguarded for years by the potential of a 60-vote margin. i wanted certainty that the voice of the minority pooh still be heard -- minority would still be heard when the next vacancies arise. it was met with hopelessness or even hostility. and back home thousands of constituents called my office urging a vote against gorsuch and urging i support the fillibuster and some even urged me to stop talking about any sort of deal. in fact, back home in delaware, some national groups ran ads against me when there was even a rumor, a hint that there might be conversations about avoiding this outcome. there were senators on both
4:32 am
sides of the aisle who told me that an agreement was impossible. they said any agreement is based on trust and we simply do not trust each other any more. given the events of the last years, the disrespect, mistreatment of merrick garland, the course of the confirmation of neil gorsuch, i can understand how there is a raw wound right now in this chamber where each side feels the other has mistreated a good and honorable and capable nominee for the supreme court. but let me say my last point again. senators on both sides told me we could not find a durable compromise because we do not trust each other anymore. if we cannot trust each other anymore, then are there any big problems facing this country which we can address and solve? this morning i gave an address at the brookings institution about the threat that russia poses to our democracy, to our
4:33 am
allies, to our national security, and to the endurance of our republic. if that threat is not something that deserves determined bipartisan effort, i don't know what is. there are many threats to our future i could lay out today but let me simply emphasize that in the absence of trust, this body cannot play its intended constitutional role. and without trust we will not rebuild what is necessary to sustain this body. now, everyone likes to point the finger at the other side as the source of this distress. the reality is there is abundant blame to go around. folks like to remember the good old days when justice scalia was confirmed by this body 98-0. when justice begins birg was confirmed -- ginsburg was confirmed 96-3. when we look at our five most recent nominees to the supreme court, you can see a clear trend. nine senators, all republicans,
4:34 am
voted against justice breyer. then 22 against justice roberts. 42 senators mostly democrats voted against justice alito. president obama's nominees, justices sotomayor and kagan, more than 30 republican senators opposed each one. only nine republican senators voted for sotomayor and only five republicans voted for justice kagan. we have been on this trajectory, both parties, for some time. then of course we have chief judge merrick garland, the first supreme court nominee in american history to be denied a hearing and a vote, and we have judge gorsuch, the first to be the object of a partisan fillibuster on this floor. we did not get here overnight. we have become increasingly polarized. how can we work together to repair this lack of trust so we can face the very real challenges that face our nation? my own attempts of recent days
4:35 am
although i was blessed to be joined by senators of goodwill and good faith and great skill in both parties were ultimately not successful. i wish i had engaged sooner and more forcefully. i wish i had been clearer with my colleagues how determined i was to seek a result. but this doesn't mean i'm disappointed that i tried. and it also doesn't mean i'm going to stop. i am not going to stop trying to fix the damage that has been done, trying to find a better pathway forward. and i ask my colleagues, if you know what you have done today, then what will we do tomorrow? how can we avoid the further deepening corrosionive partisanship in this body? what past mistakes can each of us own up to? what steps can we take to mend these old wounds? and what more can we do to move forward together? we sometimes talk about the dysfunction of this body as if it is external to us, as if we
4:36 am
bear no accountability for it. but at the end of the day, here we are. 100 men and women sent to represent 50 states of this republic, and 325 million people. and in many ways we have all let them down today. i can tell you, mr. president, what i am going to do tomorrow. i commit to working with anyone who wants to join me to try and strengthen and save the rules and traditions of this body and its effectiveness as an absolutely essential part of the constitutional order for which so many have fought and died. it is what all of our predecessors would have wanted. thank you, mr. president. with that, i yield the floor. mr. isakson: mr. president? the presiding officer: the senator from georgia. mr. isakson: mr. president, i'm going to be brief. i also want to make sure i don't take advantage of the personal
4:37 am
privilege i have of the united states -- as a united states senator but i'm going to an any. i want senator coons from delaware to pause for just a second. i want to thank every member of the senate, republican and democrat, and the staff of the senate for the many kindnesses they've extended to me in the last four months during my injury and my recovery. i'm on the way back home in large america because of the support of the members of the united states senate. i'm very grateful for that and the staff that have allowed that to take place. i thank you -- i say thank you very much. notwithstanding what your politics are or your partisanship is or anything else, this is a great institution and a great body because it's made up of great people. to that end, my friends and senator coons from delaware made an excellent speech which i'm going to adopt as my speech since i don't have the strength to stand as long as i'd like to to talk about an issue so important. we do need to open all our minds and hearts in the days ahead to make sure we know what direction we're going on as member, of the united states senate regardless of our party and notwithstanding our partisanship.
4:38 am
neil gorsuch from everything i have seen, i've probably seen more than anybody because i've been watching it on tv while i'm recovering. you have been doing in debate. ive a he seen the real thing. his record, his testimony, the way he presented himself, the way senator grassley and senator feinstein allowed that hearing to go forth. i know we have a good man as a nominee for the supreme court justice of the united states. but the issues divide on cloture, on simple majority, on the rule change of 2013 and what's happened in the past now has us in a position where we're slowly but surely moving to be a body that's another house of representatives, not the united states senate. the majority rule is a great philosophy. majority winning is always a great philosophy. but i used to have a teacher who taught me who says four equals a majority, three equals zero but you have to listen to the other three because sometimes they may be right. that is a good lesson for us and that was a grammar schoolteacher. if seven of the voting members
4:39 am
and four doesn't equal a majority but three doesn't equal zero but the rest still count. as we move forward in the days ahead and judge other issues, whether partisan issues in terms of regular dwe bait and general -- debate and general legislation, secretaries or whatever it may be, let's be thoughtful so not as a criticism of the house but as a complement to our found -- compliment to our founding fathers. we don't become a second house and eventually waive rule where passions overrule common sense and all of a sudden you find yourself cigging -- digging your way out of holes you built and building dreams that you wanted to do i commend the leadership of both parties for exercising their political and partisan desires. i commit each member for being here to take part of this debate today and be a part of what america is all about. but somewhere down the line there's going to be something that's going to happen. it's going to cause a resurrection of the debate we've had today and another road to cross on which way we go in future direction. the more we move away from a
4:40 am
senate that is a deliberative body, that is a dignified body, and is a body that makes sure it knows where it's going before it moves forward, we'll be better off. if we move forward as a body that's a rubber stamp of the house, we'll never be the united states of america our founding fathers intended us to be. that's what i believe and the end of this will be. all the members i compliment what they had to say to do. judge gorsuch, i'm so proud to have someone like that who will serve on the supreme court bench with distinction. to us our job is not finished. our jobs are ahead of it. i look forward to being here and being a part of it. i yield back my time and thank the members of the united states senate. a senator: mr. president? the presiding officer: the senator from oregon. .the senator from rhode island. a senator: i thank the senator from oregon for yielding. mr. whitehouse: i want to say how nice it is to see the senator from georgia back here with us. it means a lot to all of us to
4:41 am
have senator isakson back home in the senate. mr. wyden: mr. president, i don't want to turn this into a bouquet tossing contest, but i think it's very clear that senators on both sides of the aisle are very, very pleased to see our friend from georgia back today. we are wishing him good health and godspeed johnny and look forward to a full and complete recovery. so glad to have you here. impleased that senator -- i'm pleased that senator coons is on the floor. it is fair to say that members on both sides of the isles have seen how -- aisles would say that are senator coons makes all of us very, very proud. it's no secret that he has tried repeatedly to bring both sides together and he and i have talked often about this.
4:42 am
i think they are going to be opportunities for finding common ground on some important legislation breaking out of this gridlock that we all understand is not what the senate is all about and towards our mainstream. and when we get there, to a great extent, it will be thanks to the thoughtful comments of my friend from delaware. mr. president, the senate will soon act on one of its most sacred and constitutional duties, advice and consent on the next associate justice of the supreme court. the long tales of these supreme court debates stretch through generations and shape our government deep into the future. the choice the senate makes in this extraordinary debate will have a profound impact from the
4:43 am
broadest governing status to the particulars of the law that affect our daily lives. there are several issues, mr. president, particularly relevant to this nominee that have gotten short shrift. i'm talking about secret, warrantless wire taping, death with dignity, and i intend to discuss these issues shortly. i would like to begin, however, by stating that whether one supports or opposes judge gorsuch, our job would have been easier had the judge been more forthcoming in his testimony before the judiciary committee. he chose, however, not to do so. so what the senate has to go by instead is the judge's lengthy record of adhering to a rigid
4:44 am
and far-right philosophy that is packaged in the branding of so-called originalism. the originalist says that our rights as a people are contained within and linked to our founding documents, but that viewpoint is plainly incorrect and in practice this originalism becomes a cover for protecting the fortunate over the poor, corporations over individuals, and the point of orderful over -- and the powerful over virtually every other american. it is a political agenda that masquerades as philosophy, an agenda whose sole intent is reserving power for those in
4:45 am
power and limiting the recognition of the rights reserved to the people. far from endorsing such a creed, our constitution is actually a document of constraints, constraints that bind the government, not the people. the full scope of our fundamental rights as a people, as justice harland once wrote, cannot be limited to the specific guarantees elsewhere provided in the constitution. the exact concept is written in the bill of rights. the ninth amendment says the enumeration and constitution of certain rights shall not be construed to deny or disparage others retained by the people. james madison, the founder so significant that americans are
4:46 am
said to live in a madisonian democracy, was outspoken about the future readers or interpreters thinking that the fundamental rights contemplated by the framers were limited to the constitution or a bill of rights. so our founding document and its framers made clear that rights were not enumerated by the constitution, they were retained by the people. individual liberties from personal privacy, a woman's right to vote, the choice of contraception and abortion, interracial marriage, same-sex marriage, equal protection of the law, these liberties -- and let me emphasize many, many, many more have always existed. in fact, the constitution and the bill of rights were silent
4:47 am
on what many americans consider fundamental to free people. that silence was let open for the courts as we recognize the true meaning of the words all men are created equal and inalienable rights. but the progress has been painfully slow. the constitution, like any document composed by politicians is fraught with original sin. for example, the three-fifths compromise was a shameful device of political accommodation, through our long stretch of history, political agendas have left many individual rights unrecognized or unprotected by the courts. they ruled in favor of the powerful and against the disadvantaged and the disenfranchised, often with the justification that their rulings adhered to the text of the
4:48 am
constitution. nowhere did the constitution expressly deny women the right to vote, but the supreme court ruled against virginia miner in 1875. the federal government was not expressly granted a right to intern residents of japanese descent, but the supreme court allowed it. there was no constitutional basis on which to deny people of different eth nistys -- eth nistys the right to marry. our judges were wrong. supreme court justices were wrong in the service of the economic political, and religious powers that be, the cower has defended slaveholders, denied the franchise, permitted racial, sexual, and other discrimination, and routine -- routinely, mr. president --
4:49 am
elevated the power of the state over individual liberties. and any defense of those rulings is adhering to the text of the constitution is just plain wrong. let's look more closely at women's voting rights. in miner v. happennerstat, women did not have the right to vote because the right was not expressed anywhere in the cons use it. in a unanimous decision, the court took the absurd decision that a document predicated on voting and dependent on voting for any amendment still did not protect the right to vote for all citizens. such is the intellectual bankruptcy of a long legal tradition sustained by its defense of the status quo. the 19th amendment was a response to the abridgement of a
4:50 am
fundamental right by political parties and their dependent courts, but it did not create a new right. it was a long, overdue fix made necessary by an originalist court. if there is a national evolution that extends protections of rights and liberties to disenfranchised and oppressed people, it is because with time our wonderful country tends to correct its wrongs. it did so with the civil war and the amendments that followed, it did so with women's sufferrage and the grown decision -- and the brown decision and it did so recently with oberfeld and hodges decision. recognition, i use that word intentionally. it is recognition because there
4:51 am
are no new rights per se. they are inalienable and those rights are not limited to those spelled out in the constitution. abjurist governed by -- a jurist governed by that principle would respect those rights, but that is not the viewpoint taken by many so-called originalist on the far right today. their right-wing originalism looks, in my view, a lot more like the judicial philosophy that trampled on the rights of americans in days past. a philosophy that throughout our history has left many americans marginalized, disenfranchised and opposed by the -- and oppressed by the state. and, unfortunately, after listening very carefully to judge gorsuch present his views, reviewing his writings,
4:52 am
including some i'll mention that specifically talk about my home state, i have no faith that judge gorsuch would be any different from this philosophy that i mentioned that has left so many americans marginalized in our country. judge gorsuch not only has a long record of conservative activism in the courtroom, he has demonstrated an out and out hostility toward the right of individuals to make decisions about their own lives and their own families without interference from the state. in one troubling instance, he went so far as to author a book attacking death with dignity. this, of course, has been a matter that's historically been left to the states, and the people of my state twice approved death with dignity bout
4:53 am
measures and it has been in place 20 years. the supreme court upheld it more than a decade ago in a case known as gonzalez v. oregon. but judge gorsuch's record and his own words puts the will of millions of oregonians in question. nothing -- nothing in the constitution gives the federal government the power to deny suffering oregonians the right to make basic choices about the end of their lives. there is nothing in the constitution that gives the federal government the power to deny people in my state the right to make those emotional, difficult, wrenching decisions about end of life. it is a private matter between
4:54 am
individuals and doctors. when politicians attempt to force regulations through the backdoor by going after doctors and their ability to prescribe, in my view, that is an obvious over the line federal infringement. but my guess is there are probably going to be some folks on the far right that are going to try that route again. nothing judge gorsuch said in his confirmation hearing gave me any indication he respects the death with dignity issue as subtle law or that he would rule against federal abuse of power -- federal abuse of power to intrude on a private choice. the bottom line is that judge gorsuch is locked into an extreme right-wing viewpoint on this issue and there is more. part of this, mr. president, is
4:55 am
as i've listened to this debate, and particularly the number of comments that some of those who have espoused the views that concern me so much come back to always talking about states' rights -- states' rights, that will be the altar that we really build our views and philosophies around. i'll tell you, when you listen to some of what they have to say about states' rights, what they are really saying is they are for the state if they think the state is right, and that is it not, in my view, what fundamental rights, particularly ones that have been afforded the states, ought to be all about. so, as i indicated, i think his views with respect to death with dignity really do involve federal abuse of power intruding
4:56 am
on private choices, but there are other issues that concern me as well. he has made it clear in many instances he favors corporations at the expense of working people. he sided with insurance companies to deny disability benefits to people with disabilities, large companies to deny employees basic job protections, and he's even written a class action lawsuits are just tools for plaintiffs to get free rides to fast riches. no example better illustrates the tendency my colleagues have talked about it than the case of the truck driver in transam trucking verses department of -- versus department of labor and in a case that leaves you practically speechless, judge gorsuch sided against a truck driver who was fired for leaving his freezing cold truck when his life was in danger. i had another significant concern about judge gorsuch that came up in the context of his
4:57 am
confirmation hearings. this is something that i think a lot of americans and even those in government are, i think, trying to get their -- you know, their arms around. i've been on the intelligence committee since the days before 9/11, and one of the things that we've come to feel strongly about is the danger of what i call secret law. and i want to make sure people know exactly what i'm talking about when i describe secret law. in the intelligence world and in the national security sphere, operations and methods, the tactics used by our courageous men and women who are pocketing us, who go in -- protecting us, would go in harm's way to protect our people, those sources and methods have always
4:58 am
got to be secret. they're classified and they have to be because if they got out, we could have americans die. the people who do all that wonderful work and possibly millions more so sources and method, have got -- methods have got to be secret. but the law and our public policies always ought to be transparent. the american people need to know about them because that is how we make informed decisions in our wonderful system of government. voters are given enough information to make the choices. and so sources and methods, operations secret but the law and political philosophies has got to be public. and judge gorsuch as a senior
4:59 am
attorney in the department of justice was a practitioner of secret law. as i indicated, the public isn't going to know about secret operations. we pocket it but just in government and in our legal system can't survive when the americans understand the law says one thing and the government or secret court says it means another. secret law prevents the public from knowing whether their fundamental rights are being infringed by an unaccountable, unconstrained government aided by compliant courts. and secret law also keeps the congress in the dark, congress whose job it is to represent people and oversee the government, congress who barring rebellion is the only recourse of a free people against an executive judicial alliance of
5:00 am
secrecy that infringes their liberties, and it's my understanding that secret law makes a mockery of the oath just as each senator has taken to protect and defend our constitution. secret law is fundamentally corrosive to the rule of law in america. and as we learned during his confirmation hearings, judge gorsuch was a supporter of secret law. in 2005, the c.i.a. was conducting a secret torture program. in may of that year the department of justice's office of legal counsel determined secretly that tortured techniques, such as waterboarding were legal. somehow it deemed them consistent with statutory prohibitions on torture in the constitution. this was extraordinary, willful,
5:01 am
faulty legal analysis. it was entirely inconsistent with how the congress and the public would read the law or the constitution. so then our distinguished colleague from arizona, senator mccain who knows a little bit about these issues having been subjected to them in the defense of our country, senator mccain got past the detainee treatment act -- passed the detainee treatment act. and senator mccain understood having fought for our country, given fully of himself that our government had to find a way out of this problem. and the mccain law prohibits the cruel and inhuman or degrading treatment that has been at issue here. by any measure both the law, the language of the law, the clear and intent of the congress and the context in which it was passed would leave every
5:02 am
american to understand that a decision had been made by their elected officials to limit the power of government. but judge gorsuch then an employee of the bush administration had a solution. in december of 2005, he wrote to the author of the justice department opinion mr. bradberry about a presidential finding statement that would magically transform the mccain law into an endorsement of torture. what judge gorsuch wrote was that the mccain amendment that prohibited cruel and inhuman and degrading treatment was best read as essentially codifying existing intair gaitions -- interrogations policies. according to judge gorsuch, john mccain's law, the one that passed 90-9 in the united states
5:03 am
senate, that somehow john 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
5:04 am
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,
5:05 am
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
5:06 am
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
5:07 am
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
5:08 am
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
5:09 am
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 theicer: without
5:10 am
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


info Stream Only

Uploaded by TV Archive on