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tv   Senator Durbin on Supreme Court Nominee  CSPAN  April 1, 2017 3:37pm-4:00pm EDT

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election. mr. president, the senate has a nearly 230-year tradition of approving supreme court nominees by a simple majority vote. there has never been a successful partisan filibuster of a supreme court nominee. 230 years, and the only ones that had ever attempted one are the democrats. while some democrats may follow the minority leader in opposing judge gorsuch, i'm hopeful that others are listen to the many voices, liberal and conservative, speaking out in support of his nomination. there is no good reason to oppose judge gorsuch, and there is every reason, mr. president, to support him. it's time to confirm this supremely qualified judge to the supreme court.consent that the e suspended. the presiding officer: without objection. mr. durbin: mr. president, i rise to speak on the nomination of judge gorsuch to serve on the u.s. supreme court. it's important to reflect for a moment on how we have reached this moment.
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it has been more than a year since the untimely passing of justice antonin scalia in february of 2016. under article 2, section 2 of the united states constitution, president obama had a duty to make a nomination to fill that vacant seat. he nominated chief judge merrick garland. but the leader of the senate republicans, majority leader mcconnell, announced that for the first time -- for the first time in the 230-year history of the senate he would refuse the president's nominee a hearing and a vote. senator mcconnell said he would refuse to even meet with judge garland. it was a transparent political decision made by the republican leader in the hopes a republican would be elected president and fill the vacancy and it was part of a broader republican political strategy to influence if not capture the judicial
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branch of government at every level of the court system. not only did the senate republicans keep a supreme court seat vacant for over a year, they turned the senate executive calendar into a nomination obituary column for 30 other judicial nominees who'd been reported out of the judiciary committee with bipartisan support. they were hoping a republican president would fill all of those seats and they were prepared to leave them vacant for a year or more to achieve that end. what kind of nominees were they hoping for? nominees who'd been blessed by special interests, by big business, and by republican advocacy organizations. it was last year then candidate donald trump released a list of 21 potential supreme court candidates who were hand picked by two republican advocacy groups, the federalist society and the heritage foundation. i'm not speculating on the fact that they were chosen by those
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two groups. candidate trump publicly thanked the groups for giving him a list of names to fill the vacancies on the supreme court. it was unprecedented for anyone, including a candidate for president, to outsource the judicial selection process to special interest groups. but president trump did it. and true to his word to these special interest groups, he nominated one of the names on the list, judge neil gorsuch. now, the first telephone call judge gorsuch received about his nomination was not from the white house. it was from the federalist society, one of these republican advocacy groups. eventually judge gorsuch made it to the interview stage with president trump's inner circle, meeting with steve bannon, reince priebus and president trump himself. those men each took the measure of judge gorsuch and gave him
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their approval to serve for a lifetime appointment on the highest court in the land. president trump who had announced numerous litmus tests for judicial nominations appeared very satisfied with neil gorsuch as his nominee. the president's chief of staff reince priebus ensaid and i -- even said and i quote, neil gorsuch represents the type of judge that has the vision of donald trump, closed quote. there was certainly no political subtlety in that evaluation. after judge gorsuch' nomination was announced, a dark money machine shifted into gear. a national campaign costing at least $10 million was launched to support the gorsuch nomination. because it's dark money, there's no disclosure about who's bank rolling this effort. but it's a safe bet that the suppliers of dark money have at least a passing interest in cases before the united states supreme court. despite this unprecedented and unsettling process that led to
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judge gorsuch's nomination, the democrats on the senate judiciary committee gave judge gorsuch a courtesy that republicans denied to judge grland -- garland. a hearing and a vote. why? because the senate democrats take the constitution seriously. we don't turn our backs on the constitutional responsibility of advice and consent, even though that's exactly what our republican colleagues did when it came to merrick garland. last week the senate judiciary committee met for four days to consider the gorsuch nomination leading up to the hearing i made it clear on the senate floor that i thought that judge gorsuch had a burden to bear at that hearing. on february 2 i said here on the floor that judge gorsuch needed to demonstrate that he would be a nominee who would uphold and defend the constitution for the benefit of everyone, not just for the advantage of a privileged few who happened to engineer his nomination. i also said judge gorsuch needed to be forthright with the american people about his record and his views. i made it clear that avoiding answers to critical questions
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was unacceptable. i said he needed to demonstrate that he would be an independent check on president trump and every president, and that he was prepared to disappoint the president and the right-wing groups that hand picked him if the constitution and the law required it. judge gorsuch was given that full and fair hearing. he was given every opportunity to explain his judicial record and his views and to meet the expectations i laid out for him. i came away from this hearing firmly convinced that i must oppose the nomination of neil gorsuch. here are the reasons. judge gorsuch favors corporations and elites over the rights and voices of americans often using selective textualism to advance his agenda. judge gorsuch's hearing reinforced my fear that he would lien toward corporations and elites at the expense of american workers and families. big business have found a
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friend. i noted a hearing as studied by the constitutional accountability center found that the john roberts supreme court has ruled for positions advocated by the chamber of commerce 69% of the time. i'm concerned based on a review of his record that judge gorsuch is likely to increase the pro-business leanings of the roberts court. in a series of decisions, and i read many of them, involving workers rights, discrimination claims, consumer rights, access to the courts, judge gorsuch has time and again favored corporations, often submitting his own judgment for that of agencies tasked with protecting the workers. no case was more egregious than the transam trucking case which was brought up repeatedly at the hearing. the facts are pretty well known by now. alfonse madden, a truck driver from detroit, stuck in january on the side of interstate 88 in my home state of illinois and it
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was 14 degrees outside. below zero. the brakes on his trailer had frozen. after waiting for a repair truck for several hours without any heat in the cab of his truck, alfonse madden's body was starting to go numb. he called the trucking company one more time and they said you have two options: stay in that truck or drag that frozen trailer down the interstate highway. both of those options were risks to health and safety and common sense. instead al madden unhitched the broken down trailer, drove to a gas station to fuel up and get warm, and return to the disabled trailer to wait further. for this the company fired him and that firing blackballed him from ever working as a trucker again. well, al madden came by my office and explained what he did. he heard there was some federal agency that might consider what he considered an unfair firing.
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so he went down to the agency and took out a ball point pen and filled out the complaint in long hand without the advice of counsel or any help. he was shocked. he won. and the case went further on appeal. at the end of the day seven different judges heard al madden's case. six of them agreed that what happened to him was unfair and unlawful. the only judge who found for the trucking company neil gorsuch. judge gorsuch's dissent said he was looking at the law and that's why al madden had to be fired. but the tenth circuit majority said that gorsuch was cherry-picking one dictionary's definition that came to his conclusion. other dictionaries and the law's obvious purpose of protecting health and safety had been ignored by judge gorsuch. republican nominees like judge
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gorsuch often claim they are using the supposedly neutral philosophies of originalism and textualism to guide their decision making. but al madden's case shows how judge gorsuch used selective choice of text to advance a pro business agenda at the expense of one american worker. there are many other cases in judge gorsuch's record that demonstrate this trend leading the associated press to say that gorsuch's workers rights opinions are, quote, often sympathetic but coldly pragmatic and usually in the employer's favor. take a look at the hobby lobby case. in that case judge gorsuch expanded the idea that a corps, a business is a person. why? he wanted to permit a for-profit corporation to impose its owne owners' personal religious beliefs on more than 13,000 employees who worked at that
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corporation and to limit their access to health care under insurance policies. now, in finding for the corporation, judge gorsuch barely acknowledged that this decision burdened these thousands of employees and their constitutionally -- personally constitutionally protected religious beliefs and choices. judge gorsuch also has a troubling record when it comes to protecting the rights of americans with disabilities and victims of discrimination. it was quite a scene last week when the supreme court in the midst of our hearing on judge gorsuch issued a unanimous ruling rejecting a standard that had been created by judge gorsuch. i'm sure that's never happened in history. this standard that judge gorsuch had promoted in a case where he wrote the majority opinion weakened protections for students with disabilities under the individuals with disabilities and education act. in 2008, judge gorsuch wrote in the luke pete case that under
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the idea, schools need only to provide an educational benefits to students with disabilities that is, quote, merely more than de minimis, closed quote. at issue is the legal responsibility of a school district to provide educational opportunities for a child with disabilities. in this case, luke was a boy from colorado who suffered from severe autism. with the assistance and support of his teachers, luke made significant progress at school and kindergarten and first grade, but then when his family moved to a new home, he had to change school districts. at his new school luke began to lose the skills he gained. his behavior was worse. after unsuccessful attempts to address these concerns, luke's parents decided that they, quote, could not in good conscience continue to expose their son luke to this environment that was so detrimental to his educational and behavioral development, end of quote. so they decided to enroll luke in a residential school
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dedicated to the education of children with his type of autism spectrum disorder. a due process hearing officer, a colorado state administrative law judge and federal district court all found that the school district had failed to provide the education guaranteed to luke under the federal law idea and was therefore required to reimburse the cost the private residential school placement that luke needed. his parents were desperate to give luke a chance at life but then judge gorsuch ruled. he ruled against them. in so doing it, he created a new lower standard for school districts in the process. i asked judge gorsuch about this. he claimed he was just following the law. but as i pointed out at the hearing, that wasn't accurate. a legal analysis showed that judge gorsuch was the first judge in that circuit to add the word "merely" to the standard. luke's father jeff testified at
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the hearing and said that judge gorsuch's, quote, subtle word craft, closed quote, had the effect of, quote, further restricting an already restricted precedent with unfortunately my son in the bull's eye of that decision, end of quote. so what did chief justice john roberts of the u.s. supreme court say of the gorsuch decision? here's what he said and i quote him. when all is said and done, a student offered an educational program providing, quote, merely more than de minimis progress, gorsuch's words, from year to year could hardly be said to have been offered an education at all. the supreme court sent a strong message when they released this opinion in the midst of judge gorsuch's hearing. the court unanimously said that judge gorsuch's standard ways inconsistent with the law so on this issue, judge gorsuch, the nominee, is somewhere to the right, even if justice clarence
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-- even as justice clarence thomas. this case is not an outlier. in fact annal sills of his decision -- annal siz of his decision showed he ruled against students in eight out of ten idea cases. there was also a consistent pattern in judge gorsuch's record on discrimination and retaliation involving employers. bloomberg b.n.a. analyzed judge gorsuch's record and found that he ruled for employers ought out of 12 times. for example, he ruled against the sex discrimination claim brought by a u.p.s. salesman. ruled against a disability discrimination claim brought by a college professor. ruled against an age discrimination claim brought by two maintenance workers and a claim brought by an african american grocery store employee who was called a monkey by his supervisor. ruled against a gender and disability discrimination claim brought by a female county accountant with multiple
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sclerosis. ruled against a discrimination claim by a transgender woman seeking to use the restroom of her gender identity. the case of grace wank was particularly troubling to me. miss wank had been a college professor for 15 years. then she was diagnosed with cancer. she needed a bone march marrow parapet. they told her to return to the classroom just at the same time a flu epidemic was sweeping across the campus. ms. wang asked to work from home so she wouldn't get infected. the university denied her request and terminated her employ because she asked to be protected from this flu epidemic. judge gorsuch authored an opinion upholdinholding the decl of ms. wang's discrimination disability complaint.
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judge gorsuch wouldn't consider the reasonableness of her q instead he wrote that six months' leave was "more than sufficient" and wrote that the purpose of disability law is, quote, not to turn employers into safety net providers for those cannot work. end of quote. grace wang's children said the opinion removed the human element from the equation. it did not bring justice. also during the hearing judge gorsuch refused to distance himself from extreme and bigoted views of one of his college professors, professor john finnis, a man who he has publicly praised. overall, judge gorsuch's record raised serious concerns about what his confirmation would mean for the vulnerable and victimized. we also came to learn that judge gorsuch was an a aggressive defender of executive power when he worked at the justice department during the bush administration. june 2004 after the terrible abu ghraib torture scandal, i offered the first legislation to
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ban cruel and human and degrading treatment of detainees. the legislation became the mccain torture amendment which despite a veto threat by president bush passed this senate in december 2005 by an overwhelming 90-9 vote. but judge gorsuch advocated that the president should issue a statement claiming that the mccain amendment was, quote, essentially codifying, close quote, torture techniques like water boobing. this is despite overwhelming evidence from senator mccain and others in congress that this was intended to do the exact opposite by outlawing cruel treatment. judge gorsuch testified that he was simply an attorney working for a client but gorsuch's e-mail correspondence viewed that he was viewed as, quote, true loyalist to the republican administration, and this is a client that the judge actively lobbied to serve, even though their troubled record on torture was already a matter of public
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record. these documents from gorsuch's tenure at the department of justice with respect not available during his earlier confirmation hearing for the 10th circuit provide a revealing look at his beliefs on executive power. they raise troubling questions about what he would do if he is called upon to stand up to this president or any president who claims the power to ignore laws that protect fundamental human rights. for the majority of questions from democratic senators at his hearing, judge gorsuch failed to amongfully respond. he had a standard set of evasions and nonanswers that he used whenever he was asked about fundamental legal principles and landmark cases. it didn't take long before this senator and many others could finish his sentences before he started. in ducking these critical questions, he ended up saying nothing at his hearing a swath my concerns about reince priebus' pronouncement that judge gorsuch was, quote, has the vision of donald trump, close quote. the supreme court must serve as an independent check on
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president trump, not a rubber stamp. but judge gorsuch wouldn't even comment on the original meaning of the constitution's emoluments clause, apparently for fear of possibly implicating the president who nominated him. judge gorsuch may not be the first nominee to have avoided answering question, but he went further than others. as a result, members of the committee can only look to his judicial record and his work for the justice department to decide their vote for this lifetime appointment on the supreme court. his record on the bench and at the justice department make it clear that judge gorsuch is not the right person to serve on the highest court in the land. we want judges to follow the law and apply the facts fairly, but it's naive to believe that this is some kind of robotic exercise. every judge brings some values to the court. in close cases those values can tip the meaning of a law or even the facts before the court. one key purpose of the hearings is to provide reassurance that the nominee's values are in the
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american mainstream. i did not find this assurance in judge gorsuch's testimony last week, and i certainly didn't find it in his record. he received a fair hearing, but he did not earn my vote. because republicans control the senate, we can expect judge gorsuch to be reported out of the judiciary committee next week and then a vote on the senate floor. but no one should be surprised that judge gorsuch will need to meet the standard threshold of 60 senate votes in order to be confirmed. majority leader mcconnell has made clear time and again that 60 votes is the standard for matters of controversy in this senate. let me cite a few of the leader's more memorial quotes. on december 2, 200, he said, "i think we can stipulate once again for the umpteenth time that matters in a have any level of controversy about it in the senate will require 60 votes. on october 28, 2009, senator mcconnell said, well, it's fairly routine around the senate
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that controversial matters require 60 votes. then again july 17, 2007, senator mcconnell said, 60 votes in the senate is common as gambling at casablanca. 60 vote s is a threshold that supreme court nominees have met for the past quarter century. if the supreme court nominee cannot garn 60 votes in the senate, then the president should put forward a new nominee. we're at unique moment in history. the president has already fired an attorney general and had his actions blocked by many courts. the president has also launched unprecedented attacks on the integrity of the federal judiciary and now the federal bureau of investigations has confirmed it is investigating russian involvement in his election. a new bombshell is revealed almost every day. in this context, the senate cannot simply rubber stamp a lifetime supreme court appointment for the president. neil gorsuch ishe


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