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tv   Senate Filibuster Looms as Gorsuch Nomination Heads to Floor on Party- Line...  CSPAN  April 3, 2017 3:11pm-4:53pm EDT

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live. we will have something for you in terms of what we'll do for a briefing. with that i'll end for today and you guys have a good one. take care of. [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. isit] >> press secretary sean spicer wrapping up today's white house briefing, taking several questions about the nomination of neil gorsuch to the supreme court. senate democrats now do have 41 votes opposing his confirmation. meaning they do have enough votes to block it under current senate rules. the senate judiciary committee did, however, vote along party lines to send the nomination to the full senate which is expected to start debate tomorrow. confirmation vote is expected on friday. the u.s. house is back at 5:00 p.m., and up until then a look now at the judiciary committee hearing with members giving statements about judge gorsuch.
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senator grassley: good morning, everybody. and particularly to the large crowd that's come here to view this committee meeting this morning. we have much to do today, so i appreciate everyone being here. we have three nominees on the agenda. all are ripe for consideration.
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neil gorsuch to the supreme court. attorney tein, deputy general. rachel brand to be our associate attorney general. i want to explain how we're going to proceed. in addition to the supreme court nominee, we need to report out the nominees for deputy attorney general and associate attorney general. we all understand that it's important for the department of justice to have senior leadership in place. my intention is to have everyone speak on the judge and then vote on his nomination. then we'll turn to rosenstein and brand. i'll have a statement on both of them that i'm going to put in the record so we can keep things moving. regarding the judge, for the most part, everyone has already indicated one way or another how they intend to vote. so there isn't a whole lot of
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mystery about how this is going to go at our committee meeting today. but regardless, everyone should have an opportunity to explain their vote. so everybody can speak as long as they want to, but my hope is that members can try to keep their remarks within 10 minutes so that everyone can speak and we can proceed in an orderly way. now i want to -- now i speak and then i'll turn to the ranking member. today, we're considering the nomination of judge neil gorsuch to serve as associate justice of the supreme court. over the last couple months, the nominee's opponents have tried to find fault with him. that fault will not stick and,
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of course, we've seen it just hasn't worked. before the president made his announcement, the minority leader of the senate declared that any nominee must prove himself, in his words, mainstream, to get confirmed. well, that test ran into trouble the minute the president selected the nominee. he was confirmed to the 10th circuit in 2006 by unanimous voice vote. in the 10 years since, his record on the bench has proved that the judge falls well within the mainstream. he's participated in 2,700 cases. he's voted with the majority 99% of the time. d roughly 97% of those 2,700 cases were decided unanimously. two of his former 10th circuit
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colleagues, one was a reagan appointee and one was a clinton appointee, remarked upon, and now i quote them, his fair consideration of opposing views, his remarkable intelligence, his wonderful judicial temperament expressed to all the litigants, and his collegiality among colleagues, end of quote. so you get words like fair, remarkable, wonderful, collegiality from people that have served with him during that period of time, some appointed by republican presidents and some appointed by democrat presidents. then you wonder what the uproar about him is all about. legal commentators across the political spectrum have recognized that he's mainstream. even rachel maddow, who isn't
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exactly a conservative, said the judge is, quote fairly mainstream choice that you might expect from any republican president." once it became clear that judge gorsuch is mainstream, opponents then moved the goal posts and set a whole different test. any nominee of president trump's, the minority leader said, must prove that he is independent. of course, there's no debate on his question either. the night -- let me turn my phone off here. the night judge gorsuch was nominated, president obama's solicitor general neal katyal, i think it's pronounced, wrote
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op-ed ork times" entitled, "why liberals should back neil gorsuch." mr. katyal argued that one basic question should be paramount. "is the nominee someone who will stand up for the rule of law and say no to a president or congress that strays beyond he constitution and the laws?" mr. katyal answered his own question -- "i have no doubt that if confirmed, judge gorsuch would help to restore confidence in the rule of law." he went on to write that the judge's record, "should give the american people confidence that he will not compromise principle in favor of the president who appointed him."
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it's for these reasons and others that david frederick, a board member of the liberal american constitution society, argued in an opinion piece that there is, "no principled reason to oppose" judge gorsuch and applaud such independence of mind and spirit in supreme court nominees." so then another test, independence charged didn't stick either. next, we heard that the judge is against the little guy and for the big guy. as an initial matter, this is really a strange criticism considering that my colleague the minority leader praised justice sotomayor, as a judge who, "puts the rule of law above everything else, even when doing so results in
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rulings that go against sympathetic litigants." and the judge himself proved how absurd this argument is by citing a number of cases where for the so-called little guy. but regardless, it's of course a silly argument. no judge doing their job considers the status of the litigants before them when deciding the cases. that's why liberal harvard law professor noah feldman described the critique that judge gorsuch doesn't side with the little guy as a "truly terrible idea. the rule of law isn't liberal or conservative or it shouldn't be." in other words, a good judge listens to the arguments,
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regardless of who makes them, and applies the law, regardless of the results. so that didn't stick. so next we heard that the judge hasn't answered questions. that argument is basically a complaint that he won't tell us how he's going to vote on a host of legal questions that he might have to deal with when he sits on that bench. well, the irony here, of course, is that seeking assurances from the nominee how he'll vote on particular legal questions undermines the very independence that we demand of the supreme court and right now his nominees. his approach is consistent with the cannons of jew dish -- canons of judicial ethics and is consistent with the position taken by justice ginsburg during her nomination.
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in fact, that's where the ginsburg rule comes from. she put it this way -- "a judge particlity ide im can offer no forecast, no hints, for that would show not only disregard for the specificses of a particular se, it would display disdain -- disdain for the entire judicial process." judge gorsuch's response reflects the ginsburg principle. and so at last, after all these charges leveled against the nominee and his record have fallen flat, we learn that the nominee should be opposed because of his record -- not because of his record or his qualifications but because of
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clients he had or the groups who now support him. we've heard criticism of the judge's former client, the department of justice, and its litigating positions. opposition on these grounds may e creative but they're in fact baseless. here's the inconsistency. judge justice kagan, for example, argued as solicitor general that the government could constitutionally ban pamplet materials. when that issue was raised at her hearing, she said she was a government lawyer acting on behalf of her client. that client happened to be the same united states government that gorsuch had worked for for a while. but today, the other side is all of a sudden arguing that government lawyers should be held personally responsible for
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every policy or legal position that the government takes. so once again, that argument doesn't stand up under scrutiny . and finally, of course, we've heard criticism of the advocacy groups who are speaking out in support of his nomination and quote-unquote, dark oney, on issue advocacy. now, as an initial matter, i think it speaks volumes of a nominee that at the end of the day, after reviewing 2,700 cases, more than 180,000 pages of documents from the department of justice and the george w. bush library and thousands of pages of briefs he filed as a lawyer in private practice, all his detractors are left with is an attack on
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the people who support the nomination. now, as a senator who's participated in 14 supreme court hearings, i must say these comments strike me as really odd. to hear my friends on the other side tell it, it's only conservative outside groups who are engaged in the nomination process. but we all know that isn't true. it's no secret that there are dozens of advocacy groups on the left who get involved in the nomination process. and there's absolutely nothing, nothing whatsoever wrong with that. we call it free speech. a group called the coalition for constitutional values ran ds in support of justice sotomayor and justice kagan before their confirmation. the american constitution ociety touted justice kagan as
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a justice -- "a justice for every american." where did their money come from? i don't know and i suppose a lot of people think that i shouldn't say i don't care but this is america where people can spend their money where they want to spend it and they can use their money for political speech or any advocacy that they want. and of course as we see advocacy groups on the left are engaged on this nomination as well. liberal billionaires like tom steyer, george soros fund their own dark money organizations like nextgen climate, a group that describes judge gorsuch as "an extreme candidate, wrong for the supreme court under any circumstances."
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everyone in this room knows that liberal and progressive groups have been pressuring the minority leader to find a reason, any reason, to filibuster the nominee. naral has run ads to pressure members to filibuster. even had some groups called progressive change campaign committee target a senior and extremely well-respected democrat over his, quote-unquote" squishy comments suggesting he might not filibuster. in short, they've said in the primary any democrat who supports the nomination -- they've threatened to primary any democrat who supports that nomination. now that's very dark. and last year, the groups on the left who coordinated attack on me, they followed me all
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over iowa, ran commercials, put up billboards, even had a plane pulling a banner over a special event in des moines. can you imagine that plane travel around iowa with that banner saying, "grassley, do your job"? or mobile billboards" do your job" at every town meeting i had. or -- touting three democrats that were ashamed of grassley. i found out they were republicans maybe 20 years ago. tv ads, radio ads, paid staff, bringing people to my town meetings. p-eds clutter my town meetings with trackers. and even brought in somebody, i found out from washington state , to make sure everybody knew how bad i was. now, that's what i know about dark money, but i don't care
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about it because that's the american way we do things in this representative democracy. in fact, at my town meetings i tell people one thing upfront in about two minutes of opening the meeting because i don't talk. i let them set the agenda. but i say, this is what representative government is all about. i'm one half of the process. you're the other half. and how can you be representative of the people if you don't have dialogue with them? and so these people come with dialogue with me and it's part of our democratic system. now, i never heard any democrat complain about all that money that was spent last year. we had a debate. i believe then and i believe now that we took the right course for the senate and for the court. and as i said, regardless who won the election, we'd process this nominee. and so we're processing the nominee. 9:00 on election night, everybody thought that hillary clinton was going to be
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president of the united states. but long time before that 9:00, months before, i said who's ever elected president, we will process that nominee and that's what we're doing right now. that's democracy at work. by and large, i disagree with those advocacy groups on most issues but i don't take issue with their engaging in the process and making their verses heard -- voices heard. and i don't try to intimidate or silence them. the bottom line is this -- if you don't like the fact that issue advocacy groups are engaged in the process, the remedy is not to attack, intimidate or try to silence them. the remedy is to support nominees who apply the law as it's written. the remedy is to support nominees who leave legislating to congress. if you want politics out of the process, the solution is judges who apply the law as it's
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written and leave the policymaking to the other branches. which brings me back to where i started. judge gorsuch is eminently qualified. he's a mainstream judge who's the universal respect of his colleagues on the bench and in the bar. he applies the law as we in congress write it, as the judicial oath says, without respect to persons, and he refuses to compromise his independence. this nominee that we're voting on today is a judge's judge. he's a picture of the kind of justice we should have on the supreme court. o i urge you to join me in supporting his nomination. senator feinstein. senator feinstein: thanks very
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much, mr. chairman. in my view this is not a routine nomination. so i want to begin with just some brief comments about what has made this different for me. the first, of course, is what happened last year which is unprecedented. as i noted in our last meeting, throughout our nation's history a total of 19 supreme court justices have been nominated and confirmed in a presidential election year. and three of these have been nominated and confirmed after the presidential election took place. so there was simply no reasons that the nomination of judge garland could not proceed other than to deny the then-president of the united states, president barack obama, the ability to fill the seat. and that's what has taken
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place. secondly, press reports indicate that $7 million of dark money was spent to defeat judge garland's nomination. this, too, was unprecedented. however, with the nomination of judge gorsuch, the spending of dark money has only grown. weeks ago, press began reporting that the koch brothers, through concerned veterans for america, and other conservative donors through the judicial crisis network, planned to spend at least $10 million on a political campaign to support judge gorsuch's nomination. since then, the national rifle association has launched a $1 million ad buy, and just last friday, the judicial crisis network announced another $1 million targeted to specific senators in missouri, montana,
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indiana and colorado. so this nomination is not the usual nomination. it comes in a different way and it has proceeded in a way of excessive spending of dark money that in the time i have been on this committee i have never seen before. so this is deeply troubling, and i don't believe it's the way a serious process of evaluating a supreme court nominee should be conducted. i want to be clear, though. although my vote will not be based on these factors, i strongly believe that the expenditure of millions of dollars of unknown dollars should not be permitted in the nomination of a supreme court justice. however, we have had four days of full and fair hearings. and today we begin our markup. i want to thank the chairman
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for his leadership and the very cooperative manner in which the hearings were conducted. so i want you to know, mr. chairman, you're allowing all members to fully ask questions and have the time they needed to examine judge gorsuch's record and hear from outside witnesses is very much appreciated. so thank you. in reviewing the list of judge gorsuch's decisions on the 10th circuit, two stand out as appearing to indicate his view of how a law should be interpreted and whether precedent should be overturned. and the first, which has been talked about before, but nonetheless very important, is a case called trans am trucking. the driver was stranded in subzero temperatures for several hours with frozen brakes on a trailer -- on the
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trailer and no heat in his cab. it was so cold his torso was numb and he could not feel his feet. after waiting hours for assistance, mr. maddon was instructed to drive the cab and the trailer together or not at all. when he could no longer stand the cold, he unhitched the trailer and drove to get help. because of this he was fired. the department of labor found he was illegally fired for refusing to operate the vehicle. in fact, the administrative law judge, the administrative review board and the majority of the 10th circuit all agreed that he had been illegally fired for refusing to operate the vehicle as instructed by his employer. judge gorsuch disagreed. instead, he argued in his dissent that the term operate
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should be interpreted by the oxford dictionary's definition. that operate should include only operating the cab of the truck and maddon's employer could fire him with impunity. i find this striking. first, judge gorsuch's argument ignores the reality that mr. maddon was given an impossible choice. risk your own life or the life of others on the road. secondly, it ignores the fact that judges are not evaluating cases and interpreting law in a vacuum or a law school classroom but rather cases are about real people and real life. in fact, the majority of his own court on the 10th noted that judge gorsuch's narrow interpretation of the word operate was based on one
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dictionary while they had found a different dictionary definition that supported their reading of the statute. simply put, which dictionary a judge happens to select should not and cannot determine whether a just outcome is achieved in a case. the second case that really stood out, and the father estified before us, was luke p. luke perkins was diagnosed with autism at 22 months. as he got older, the amount of structure and educational services he needed increased. in response, luke's parents and grandparents did all they could. they dug deep into their savings. they sought support from the school district as provided for under the individuals with disabilities education act, known as idea, but they were denied.
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the independent hearing officer , the administrative judge and the united states district court all determined the school district was wrong to deny funding. but when the case got to the 10th circuit, judge gorsuch inserted the word merely into the standard. now, up to this point, the 10th circuit had held that the educational benefit had to be, quote, more than diminute muss, end quote. adding the word merely narroweded interpretation of the law even narrower. as luke's father testified to us, and i quote, judge gorsuch felt that an education for my son that was even one small step above insignificant was acceptable, end quote. luckily, the supreme court
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unanimously rejected gorsuch's interpretation of the law actually during our hearings. in both cases, judge gorsuch unnecessarily went out of his way to imply his own view of what the law should be. even when it will have devastating effects on people's lives. because these cases were troubling, i had hoped judge gorsuch would better explain his judicial philosophies and personal views at this hearing. but that did not happen. judge gorsuch's views were difficult to discern because he refused to answer many questions. even basic questions that have been answered by previous nominees. for example, senator blumenthal asked the judge if he agreed with the results of brown v. the board of education, one of the most important cases in our
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history, i think everyone would agree. rather than agreeing that schools shouldn't be segregated, judge gorsuch instead said it was, quote, the correct application of precedent, end quote. to be clear, when he asked if he supported brown, judge gorsuch refused to directly answer. in contrast, when justice kennedy was asked about brown, he replied, and i quote, i think brown v. board of education was right when it was decided and i think it would have been right if it had been decided 80 years before, end quote. in another exchange, senator franken asked about a wave of recent laws to restrict access to voting. hese laws were found to target african-americans with surgical
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precision. senator franken discussed the effect of these laws, but he simply asked if judge gorsuch was disturbed by efforts to disenfranchise african-american voters. the question has but one easy answer and it's yes. yet, instead of agreeing, judge gorsuch ducked the question. he responded, and i quote, if there are allegations of racism in legislation in the voting area, there are a variety of remedies, end quote. even justice alito was more candid when asked about affirmative action, justice alito replied, i have personal experience about how valuable having people with diverse backgrounds and viewpoints can be. having a diverse student body is a compelling interest. going even further, in 1987,
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senator biden asked justice kennedy not what he thought about affirmative action generally but whether the voluntary affirmative action plans are legally permissible. judge kennedy unequivocally responded, yes. unfortunately, judge gorsuch's answers were so diluted with ambiguity one could not see where he stood even on big and long-settled cases. when i asked gorsuch about his work at the department of justice involving the bush administration's defense of the use of torture, despite providing relevant documents, judge gorsuch said only that, quote, his memory is what it is and it isn't great on this, end quote. and that the position he took on torture, quote, was the position that clients were
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telling him, end quote, to take. not only did he not answer my question, he raised an additional concern. i strongly believe that when you work for the government, either as a lawyer or a policymaker, it's important to comment on the legality of the issue you advise or write. to say, i did what they wanted, is not enough, particularly if the legality is contradicted by both law and treaty. i also believe it's important to remember the context. at this point, our country was involved in detaining people indefinitely without charge or trial, leaving them with no rights, no meaningful opportunity to challenge their confinement. the government had also decided the executive could order the use of certain enhanced interrogation techniques that
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included waterboarding, stress positions and sleep deprivation as well as a host of other techniques which would and did result in death and serious debilitation of detainees. it wases april, 2004, when the public first learned about the prison abuse concaled in the abu ghraib photos. then in june of 2004, information was leaked to the media that the department of justice had issued legal opinions that stated enhanced interrogation techniques were within the law unless they inflicted the kind of pain associated with organ failure or death. judge gorsuch reached out to the white house, political director, in november, 2004, approximately six months after these revelations to say how he
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wanted to help the cause and be a full-time member of the team. then, in march, 2005, he reached out to the chairman of the republican national committee who vouched for gorsuch as a true loyalist and a good, strong conservative. judge gorsuch ultimately joined the bush administration in june of 2005. through our examination of his documents, we learned that during his tenure at the department of justice, he was involved in efforts to strip detainees of their ability to have habeus cases heard by federal courts, defend and protect the bush administration's position on torture and issue an expansive signing statement on the detainee treatment act. these statements were used to highlight parts of the law the administration intended not to
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follow. importantly, we learned judge gorsuch advocated for the bush administration to issue a broad signing statement. he said it could be used to, and i quote, help inoculate against the potential of having d e administration criticize in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. this statement clearly and in a formal way that would be hard to dispute later, puts down a marker to the effect that the view that mccain is best read as essentially codifying existing interrogation techniques. nothing could be further from the truth. a ge gorsuch's email shows
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knowledge of the bush administration's position on torture. it also demonstrated he supported efforts to codify existing interrogation policies such as waterboarding and other extreme techniques. in our written questions, i asked again about his views on enhanced interrogation techniques. i know something about them. the intelligence committee, while i was chairman, has in classified status over 7,000 footnotes 32,000 that document all of this. i tried to understand all his opinions on right and wrong and whether he was at all disturbed by what our government was doing. unfortunately, once again, the answers i got were nonresponsive. for example, i asked judge gorsuch what he meant when he
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suggested that a signing statement could inoculate the administration if they were later criticized for not making, quote, sufficient changes to the interrogation policy, end quote, based on the mccain amendment. judge gorsuch responded once again that he was, quote, a lawyer advising a client, end quote. and that his client, the government, was arguing that the mccain amendment simply codified existing policies. judge gorsuch's defense is that he was only doing what his client wanted him to do. many of his colleagues -- excuse me -- of my colleagues on the other side of the aisle have praised judge gorsuch's qualifications and there's no question he's well-educated and well-credentialed, but we're not just evaluating a resume. if we were, every supreme court
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nominee would pass unanimously 100-0. rather, all of us evaluate not only their education and experience but also their judicial philosophy, temperament and views on important legal issues. we do this because if confirmed a nominee's decisions will affect the lives of all americans for generations. and as i've said, our job is to assess whether the nominee will protect the legal and constitutional rights of all americans and whether the nominee recognizes the humanity and justice required when evaluating the cases before him. unfortunately, based on judge gorsuch's record at the department of justice, his tenure on the bench, his appearance before the senate and his written questions for
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the record, i cannot support this nomination. thank you very much. senator grassley: thank you. the senator from utah. >> well, thank you, mr. chairman. before making a few comments about the nomination of judge neil gorsuch, i want to remind my committee -- my colleagues about the committee's traditional practice about supreme court nominees. that practice was memorialized signed by a letter by incoming senator patrick leahy and myself as the then ranking member on this committee. mr. chairman, i ask unanimous consent that that letter be placed in the record at this point. senator grassley: without objection, so ordered. senator hatch: it states the traditional practice has been to report supreme court nominees to the senate once the committee has completed its considerations, end quote. now, this letter was signed several -- cited several times last year by those demanding a
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hearing by the previous nominee but it says nothing whatsoever how the committee should consider a particular nominee. the best way to evaluate an individual nominee depends on many factors. last year we obviously faced some unique circumstances. this letter was irrelevant last year. it's certainly relevant now because we have completed our consideration of the gorsuch nomination. since only five current committee members were here in 2001, i wanted to make sure everyone was aware of our past practice. now, the conflict over the gorsuch nomination is not about whether our fellow citizens tried to influence a president's nominations or the senate's advice and consent. of course they do. from the -- from both the left and the right. anyone who thinks that the specific left-wing groups have not moved mountains and spent like mad to influence past supreme court nominations has been living in a parallel
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universe for the last 30 years. the nor is the conflict over the gorsuch nomination about whether president obama had a right last year to appoint this nominee. no president does. that's what checks and balances are for. the constitution gives the president the power to nominate judges and gives the senate the power advice and consent on those nominations. both the president and the senate legitimately exercised their respective powers last year. the conflict over the gorsuch nomination is instead about two radically different ideas about the role of judges in our system of government. america's founders designed the judiciary to imparticlely terpret and apply the law -- impartially interpret and apply the law. they cannot change to decide individual cases. the law, not the judge, determines the results -- to
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change the results is to change the law. the other idea is that deciding cases is a means to the end of judges addressing issues and advancing political interests. only view judges not may but sometimes should change the law so that their decisions produce politically desirable results. the judge, not the law, determines those results and the way to change the results is to change the judge. judge gorsuch's supporters and opponents agree on one very important thing. we both believe that he will take the law as he finds it and apply it imparticlely, refusing to -- impartly refusing to bend his decisions on who the parties are or which political interests might be affected. i believe that's why he should be confirmed. his opponents believe that is why he -- that's why he should
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be filibustered. and like america's founders, i believe that such impartiality and independence keep the judiciary within its proper role of our system of government. that role by design is necessary for the liberty we now enjoy. judge gorsuch's opponents see impartiality and independence as obstacles to overcome to a fully politicized judiciary. that's why they demand he prejudge cases, precomment on issues and take sides before cases even come before him. the democratic leader repeated over the weekend that if a nominee can't get 60 votes, the solution is to change the nominee. at least that is his current position, the one he takes each time the white house and senate are under a republican control. put a different way, he wants the senate to do as he says now, not as he did then. that is not a principle. it's just partisan politics. it is a very poor guide for the
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confirmation process. the choice we face is between impartial or political judges, between judges who follow the law and those who attempt to control the law. judge gorsuch is by any measure a superbly qualified nominee who enthusiastically supported by those who know him best, regardless of their partisan or ideological views. he will be impartial, fair and open minded. he will be exactly the kind of justice that america needs and that our liberty requires. and he has had support from some very liberal, very liberal lawyers who know how good he really is, and i hope this committee will support him and i hope the senate will support him and he will about a justice on the united states supreme court. senator grassley: senator leahy. senator leahy: thank you, mr. chairman. and first, i agree with senator
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feinstein. you made sure you followed the practice we always had allowing everybody be heard and i do appreciate that. senator grassley: that's the leahy rule. senator leahy: we made it the rule of this body and i think that's a good thing. we have on the agenda a couple other items and let me just mention briefly the nomination rod rosenstein to be deputy attorney general. mr. rosenstein has spent 27 years in the justice department . the last 12 years as the u.s. attorney for the district of maryland. he actually has a reputation for integrity that's unusual for this administration's nominees. but if he's confirmed, he's going to inherit a situation that no justice department ominee has faced since 1973, an act of criminal investigation into a sitting
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president's campaign and dministration. every week new evidence surfaces indicating that trump campaign officials colluded with a hostile foreign power to influence the election to undermine our democracy. numerous senior officials from the trump campaign have been caught lying about their communicationses with russian officials -- communications with russian officials. even the attorney general, who would be rod rosenstein's boss, was forced to recuse himself after the press revealed that he misled this committee, this judiciary committee, about his own contacts. and time and again, the white house has shown they're not going to respect the independence of any investigation. so members assume the role of
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deputy attorney general in this administration will face extraordinary tests of integrity. it's against this unprecedented background that we'll consider mr. rosenstein's nomination today. in fact, anyone paying attention, let alone somebody familiar with the justice department, understands the situation calls for appointment of a special counsel. americans deserve an investigation that is not only independent but might inspire public comments. the issue is too important for us to skew for partisan motivations. country has to come before party. mr. rosenstein assured me and others that in the matter of russian interference in our election, he's on the american side, not on the russian side,
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and i trust that he will hold true to that statement. but if confirmed, he will also face other critical tests, whether he will continue to support the justice epartment's smart on crime initiative, focus the most serious penalties on the most serious offenders and so i just wanted you to know, mr. chairman, i will vote to advance mr. rosenstein's nomination today because i expect him to do the right thing when facing such pivotal issues. . now judge gorsuch. i said weeks ago as approaching this nomination with an open mind. my vote on the supreme court nominations have never reflected partisanship. i evaluated every nominee on the merits. i have voted to confirm six
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supreme court nominees of republican presidents, unlike republican committee's treatment, unprecedented treatment to judge garland, i take my constitutional duty to dependently evaluate a president's nominee seriously, and that includes judge gorsuch. for those of us who hope judge gorsuch would use his confirmation hearings to give insight to the type of justice he would be, we were certainly disappointed. base on his record, i have concerns about his views and concern whether he would bring a partisan agenda to the court. judge gorsuch did nothing to allay those fears. that i can say, he solidified them. i cannot recall a nominee and i
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voted on every member currently on the supreme court as i explained before. i cannot recall a nominee refusing to answer such basic questions about the principles underlying our constitution and about how he interprets those principles. these are fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court. some of the questions i asked him were not intended to be difficult. several could have been answered by any first year law student with ease. if we were asking about fishing or basketball, judge gorsuch stonewalled and avoided any substantive response. he was avaze i have. his sworn testimony is supposed to comply with this committee's
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historic rule in the onfirmation process. this is a disservice to the american people. and blight on the confirmation process. judge gorsuch did not want to prejudge cases, that's a valid concern. but it should not be used to evade questions on long federal precedent or the meaning or purpose of constitutional provisions. he wouldn't even state if he agreed with certain landmark supreme court cases such as brown versus board of education. is there anybody on this committee or elsewhere who would disagree with brown versus board of education? he refused to say whether he believes the equal protection clause applies to women. he refused to say whether the
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framers of the first amendment permitted the use of very religious litmus test and refused to provide information about extreme interest groups billionaire businessman and he said whether he would continue to recuse himself from that billionaire businessman even if presented with the exact same facts. now i actually hope that judge gorsuch would be more transparent and forth coming in written questions after time to consider these questions away from the lights and the camera. but he again declined. he refused to express to acknowledge that congress has more powers even though every high school student knows the constitution gives congress the congress to declare war.
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and he attempted to evade my question about congress' ability to enact campaign finance law. he provided no answer regarding the supreme court's decision in shelby county which gutted the voting rights act and refused to answer questions about women's right to obtain contraception or whether the first amendment the president by imposing a religious litmus test even in the trump administration claimed that such a litmus test is not t issue with his travel ban. i was proud to believe in the first amendment. you could practice any religion that you want or none if you want. and we live in a country that does not impose religious tests.
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judge gorsuch's nonresponsive testimony makes it difficult for this committee to examine his judicial philosophy and evaluate his nomination. now perhaps it should not be a surprise that the nominee would not respect the role of this to consider chief judge merrick garland,. senator hatch has read a letter into the record. well, he believed in that i guess back then, but not now. ecause judge gorsuch was not even afforded or chief judge merrick garland wasn't afforded the courtesy of a hearing. some members refused to meet with him. what a shameful stain on the
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proud history of this committee. judge gorsuch may have learned from senate republicans, treatment of merrick garland by this committee is nothing more than a partisan rubber stamp. judge gorsuch believes that since republicans are in the majority and he is entitled to confirmation. the majority leader believes that, too, in his most recent statement amply files that. you know, previous nominees, both republicans and democrats respected this committee's constitutional role by answering estions in a substantive way not through politics. one law professor wrote that judge gorsuch was condescending, evasive and dishonest.
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and nonetheless trumian style. that description befits the nominee that he has the vision of donald trump. judge gorsuch did not do enough to admit a previous wrong. he said marriage equality is still law, but refused to say the same thing about a woman's right to choose. that is telling because that is the same position taken by president trump who promised to nominate justices who would overturn roe versus wade. judge gorsuch refused to discuss it. in the article by from "the job which it is a
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calls for values or any firm connection to human life. mr. chairman, i ask the article entitled fundamental dishonesty of the gorsuch hearing be included. senator grassley: without objection, so ordered. senator leahy: some of the people i hear in vermont, too. we know the court decisions, especially supreme court on decisions are not simply detached application on neutral principles. if they were. all judges would reach the same results for the same reasons. but they do not. legal decisions are not mechanical. they are matters of interpretation, but they are often matters of justice. one supreme court justice said more than a century ago, we take our seats on the bench and not struck with blindness and
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forbiden to know as judges what we see. now whether you acknowledge it or not, judge gorsuch's record says a lot about his sense of justice. in a policy he wrote the justice department, as senator feinstein has noted, he embraced fraud and discredited assertions of executive power. as a judge, he twisted statutory language to limit the rights of workers and women and children with disabilities. and he reached for broad constitutional questions that were not before him in order to advance his agenda. judge gorsuch complained about liberals relying on the courts to vindicate their constitutional rights. but, but, he had no problem rubber stamping the social agenda where employers could control the employees access to
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contraception. when the far right looked at their record, they like what they see. the leader said the process was driven not by quote who is a really smart lawyer who has been accomplished, closed quote, but by someone, quote, who understands these things like we do, closed quote. we know these groups. millionaires who fund them, a clear agenda, anti-choice, anti-environment, pro-corporate. these groups are confident that judge gorsuch shares their agenda. well, that should concern all of us. i thought a lot about this nominee. i thought about a way to support him. when i read through the decisions to support chief justice roberts, i did so knowing he was conservative and knowing that my own party leader
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was going to oppose it. but i believe his record as a judge showed commitment to restraint and minimalism. any other democrat senators voted the other way. but chief justice roberts' record -- he did not have an ideological agenda. i said then a vote to confirm requires faith that the words he spoke had meaning, closed quote. to compare chief justice roberts is a cross between the words judge gorsuch spoke to us. when viewed in isolation, perhaps his words would appear satisfactory. but when viewed in the context of his troubling tenure at the justice department, it is unprecedent the selection process by far right interest
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groups and his judicial record evidencing a partisan agenda. these are extraordinary times. this is an extraordinary nomination. last year, this committee forever tarnished its reputation. in 100 years of bipartisan tradition between the majority leader and president trump's partisan bidding. senate republicans held the supreme court vacancy of an eminent qualified nominee hostage with the sole and express intent to deny president obama an appointment to the supreme court that he had every right by precedent and by law to make. since taking office, president trump has focused his attention and targeted the very communities that are most at risk by his choice to the
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supreme court, a nominee that shares his agenda. this nominee has since refused to address any substantive issues during his testimony. he left this committee and american people with unresolved concerns. the majority leader is promising to rush this nominee towards confirmation, depriving senators of a full debate on the senate floor. the majority leader is going to use every tactic to get his way to make sure that donald trump's nominee is confirmed he even if that means forever damaging the united states senate. i respect this institution as many as anyone. i have become the dean of the senate. and for those 42 years, i devoted myself to the good that
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the senate could accomplish. but i cannot vote solely to protect an institution when the rights of hardworking americans are at risk, because i fear that the senate, i would be defending no longer exists. i have often said that the senate at its best can be and should be the conscience of the nation. ut i must first and foremost vote my conscience both today and later this week, my conscience will not ratify the majority leader's action, not last year and not this year. i will not, i cannot support advancing this nomination. senator grassley: senator raham. senator graham: we have had a
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spirited days of talking about judge gorsuch and i will vote for him with a clear conscience. one thing we need to look at is the a.b.a. is a bit of a stretch. here's what he said. cases in controversies are his
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life's work. you know, you just don't drop by the supreme court and say i would like to get rid of brown versus board of education. there is a system for a case to get to the supreme court. that system is pretty well established. and when it came to griswold, he explained the system. means that somebody somewhere would have to pass a law outlawing contraception between married couples, some politician would have to do that somewhere, somebody would sue and the supreme court would have to take the case to change griswold and he said i can't imagine that crazy scenario that one, we would take the case, and somebody would pass a law going back to the days before grigswoled. but here's the deal. if all that happened, shouldn't he listen to what the five have
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to say if the supreme court decided to take that case, which they wouldn't, if a politician would convince another politician to go back to that eriod, the point is to suggest that judge gorsuch has somewhere in his heart a disdain for brown or griswold because he won't give you the answer that you think he should give is a bit of a stretch and quite frankly unfair to the judge. so we have had one successful filibuster of a supreme court nominee and that was bipartisan. by the end of the week, that will still be the case. we will not have a successful filibuster of a supreme court nominee, because if we have to, we will change the rules and looks like we're going to have to. i hate that. i really, really do. senator schumer, who is a good friend and we worked on a lot of
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things keeps talking about reasonable mainstream as if he knows what is reasonable mainstream on our side of the aisle. do you know how offensive i find that comment. i thought they were progressive in the role of -- in the mold of president obama. he assured the democratic base that when he picked justice kagan, she is a progressive in the role of obama himself. i expected that. i expected sotomayor and kagan to be what president obama would choose, not that i would choose. and the only thing i ask of these two fine ladies, are you qualified for the job, do you ve the character, meet the federalist 78 papers. i thought they did. and people on our side, some
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outside groups, some people outside the senate tried to suggest that justice kagan was unfit for the job because when she was working with harvard and supported moving the rotc campus off campus. if you look at the way that kagan had lived her life and way she performed her duties as judge and solicitor and everything else, it was hard for me to believe she was unpatriotic. therefore not qualified. she was in harvard and do things at harvard about rotc. nothing more or nothing else. justice sotomayor gave a speech about judges, the more the diverse the court, the better, and said white men will have a hard time. so that created a big dust up on
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our side that she hates white men. i didn't buy that. she interacted with a lot of people over a long period of time and all of them had the same view as her, well qualified, extremely capable, articulate good person who had been a mainstream judge. i didn't buy for one second because she made a speech somewhere about diversity that all of a sudden she was unfit to serve to suggest that she can't be fair to white men. if you looked at her life and listened to people, you would realize she was qualified and wasn't a racist. when i hear senator schumer say change the nominee, don't change the rules, that is an absolute slam on a very fineman. we aren't going to change the nominee. when it comes to president
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trump's philosophy, you know what it is better than i am. no idea what his judicial philosophy is. he has been to court a lot. i can tell you that. he appreciates the courts robably more than any in history. he listens to people who understand what a conservative jurist is all about. he listened to a lot of people and came up with a list and i applauded him on. i can vote for any 21 people he put out before the election and they say well he is under investigation and shouldn't be allowed to pick. a bit of a stretch, but let's say mike pence, who is he going to pick? paul ryan, who is he going to pick. let's say i got 99% for president, who would i have
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picked? i would have picked him. i think sotomayor and kagan were great picks. and he will be a great member of the court. and he's going to get there. there's nothing wrong with him, but a lot wrong with modern politics in the senate and look in the mirror and find some blame somewhere. the bottom line is when it comes to equal fixes, the a.b.a. said it best, the well qualified is those found to merit the committee's strongest affirmative endorsement. when it comes to brown versus board of education and griswold, that is a bunch of political theater. i think the a.b.a. saw the judge for who he is, mainstream, competent, highly qualified. to all the people who served with judge good such in a variety of roles throughout their lives and his, they told
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us without any hesitation, he is one of the finest people they know. so when nancy pelosi says if you breathe air, drink water, eat food, take medicine or any other way interact with the court, this is a very bad decision. i think that says more about nancy pelosi, than it does judge gorsuch. so from a qualification point of view, there is no argument. from a character point of view, there is no argument. from the outcome of the election, i am glad that president trump chose judge gorsuch. he could not have done better, and i did not expect him to win. is is what i said on march 2016. i have been telling everybody on my side, she's going to pick somebody probably more liberal than president obama is going to send over in a few days.
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i'm going to vote for that person if they're qualified. the president has a right to pick their judges. that is no disrespect to judge garland. joe biden told us he would do if a vacancy occurred in the last year of bush's 41's term. talking about a republican going to retire and here's what joe said. if someone steps down i recommend the president not name someone, not send up a name. if bush did someone send up, i go ask the senate not to with the nominee. that was the last year. and i think there is one time you are president of one party and someone is confirmed. the bottom line is, i don't think judge garland was treated
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different or unfairly than what you all would have done. and let me say this to your faces. if the roles were reversed, i don't believe one minute, you would have given the accommodation you are asking us. so this idea of somehow that if this happened in bush's last year, 43, you would have allowed him after the primary season was afoot to pick somebody and put him on the court and defile history is laughable. senator schumer led a whole sale filibuster of everything bush 43 in his first term. i was in the gang of 14. we lost two supreme court judges but the test held until 2013. in 2013, with the concurrence of president obama because i called him and asked him, please don't do this and he said i have to do
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that because you have been unfair to me. you changed the rules. you had a chance to grab power and you grabbed it. when you complain about garland, it's the arsonist complaining about the fire as far as i'm concerned. doesn't bother me one bit in terms of the way judge garland was treated, even though he is a fineman given the way the senate, given the joe biden view, given reality. what does bother me is where we're headed and here's where we are headed. we are headed for a world that one side doesn't get to pick a judge. the judges are going to be more ideological, not less. it means that every senate seat is going to be a referendum on the supreme court and if you ever wondered how important the senate is, you are going to find
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out it becomes increasingly more important, because if you don't have a majority you can't nominate or pick the judges because you can't count someone from the other side to help you. so i think the damage done to the senate is going to be real. so as to this fineman, i regret that he had to go through some of the things he has had to go through. the hearing was pretty well conducted. a lot of you asked really good questions. and some of you asked questions you know he couldn't answer and some of his answers were taken out of context, if anybody really believes that this man wishes for the days of a country without brown, i think you are not being fair to the judge. what he's telling you is i decide cases and controversies. and as to roe v. wade, it is the law of the land but i can assure
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you the rights of the unborn have not been settled, that we are going to fight our side and push the concept that at 20 weeks, our country is not going to allow whole sale abortion on demand where we are one of seven nations that allow abortions in the fifth month. some judge somewhere will have to listen to that case in light of roe and all i ask them to do is listen. there are going to be cases and controversies around the unborn for a long time to come. here's what i can tell you about judge gorsuch. he will listen. he applied the president in the very emotional case involving an atuesdayic young man and applied the law in his circuit and that's what he should have done.
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so as to detainees, it's not just somebody in the abstract i'm talking about, i know the man. i know exactly the role he played. i know that the senate voted for y amendment 84-14. i know a lot about signing statements and i know a lot about judge gorsuch.
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i can tell you as a lawyer, he was honest, he was trustworthy, he was smart, he was faithfully representative to his client, no more, no less. so i will vote for him. my conscience is clear about a lot of things. i remember all the nice things to about me when i decided be the only one on my side, sotomayor and kagan to sit on the court. harry reid said i hope more people were like senator graham. i say that knowing my faults. i'm a republican, i'm partisan at times, like all of us. i tried to play it fair when it came to the court. i tried to honor elections regardless of whether or not
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oted for one and haven't voted for anyone in 12 years. don't follow my political advice, but i do believe i'm following the constitution when i voted for sotomayor and kagan and the traditions that have been in existence for two years. scalia got 98 votes. suiter got 90. thomas, 52-48. ginsburg, 96. breyer, 97. roberts, 78. lito, 58, sotomayor, 68. kagan, 63. this will be the last person in a will be subject to a filibuster, which was in effect in 1948 because the senate
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traditions are going to change over this man based on the times in which we live. and i find it ironic and sad that we are going to change the rules over somebody who has lived such a great life, who has been such a good judge for such a long time. this says more about the senate than it does judge gorsuch. senator grassley: senator durbin. senator durbin: i'm honored to represent the city of chicago and we have stories that are told to new comers on the political scene and one of them involves a former judge who many of us knew personally. he was a law student at the university of chicago and decided that in 1948 he wanted to volunteer to work on local campaigns for paul dog last for
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the united states senate and add lay stevenson for governor and went to the fifth ward for headquarters. it was a big deal. and the ward committeeman was there and this new law student walked in and said, i would like to be volunteer to be part of the campaign. he took the stump of the cigar out of his mouth and said who sent you? he said nobody sent me. he said we don't want nobody that nobody sent. it gets to the heart of politics in that city and it's a fair question, isn't it. isn't it a fair question about gorsuch. who sent him. why are we considering this man to the highest court in the land? and the answer is obvious. we know who sent him. i have to agree with senator graham, i don't know what donald
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ump's judicial philosophy as president but we do know the judicial philosophy of the federalist society which was the responsibility of coming up with the list of nominee to fill the scalia vacancy and they did it. and candidate trump announced that list of 21 names. the federalist society takes pride in the fact that they say that under republican presidents , every appointment to the supreme court has been a member or cleared by the federalist society. i don't remember seeing the federalist society in the constitution but they have played a constitutional role when there is a president. they pick the supreme court nominees. if you ask them, what do you use as a criteria -- i'll go back to a chicago story.
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he says in politics, there is a good reason and a real reason. what is the good reason that the federalist society tells us for their selection of nominees? it goes back to a speech by edwin meese when he tried to come up with definitions about what they were all about. he said they were rooted in the text of the constitution as illuminated who drafted, proposed and ratified them. he called this federalist society the standard of jurisprudence of original intention contrasted it with the misuse of history by jurists who saw in the constitutional spirit things like quote, concepts of human dignity, closed quote, which they turned the constitution into a charter for judicial activism, have we heard these phrases? judge gorsuch is an
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organizationalist. but if you are going to get into that what it is all about, read the words of justice brennan and said anyone who studied in the archives knew better than to believe the ratifying did tions offered a sing you lar verdict. brennan called the idea that modern judges could discern the framers' original intention as ignorance. so excuse me if i'm skeptical about the good reason why the federalist society gets to pick judicial supreme court nominees for republican presidents. perhaps let me suggest a real reason. who belongs to the federalist society, who funds the federalist society. to a point made over by senator white house, alou their donors
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are anonymous. who would they be? try the koch brothers, try the mercer family, which i'm reading more and more about, billionaires who believe they warrant to control this political process. do they have an agenda? we know it. we see it all the time. and that's what this decision process has become. here comes judge gorsuch from the 10th circuit who comes before us presenting his credentials and we get a chance to ask questions. he has received a stamp of approval from the federalist society and heritage foundation and we asked him basic questions to understand if he is a captive of the special interest group or is he something else? and the questions we asked, i laid out my expectations in a february speech on the senate floor, what i needed to hear.
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i asked can you demonstrate there as a supreme court justice u would uphold the constitution for everyone. can you demonstrate you will be an independent check on this president or any president? can you show you are prepared to disappoint this president who chose you and the right-wing groups that have taken credit for your name coming before this committee and i said you need to be forthright about what your values are. today's opening day of the baseball season a few blocks away from here and unfortunately for those four questions, the judge went 0-4. and said he wants to be based on the record. let's look at his record, 10 years on this circuit bench. in case after case he favored corporations, employers and special interest elites, the
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very folks who sent his nomination to this committee and favored them with over employees and he said he follows the text of the law and original intent of the law and we can find clear patterns where he bends precedent and focused on certain parts of texan not others. madon has become. 14 poor frozen trucker, below, given a choice between freezing to death and sitting repair waiting for a man or dragging a disabled trailer on the interstate and endangering his life and life of others. it was an and jurisdictionity. he specialized in absurdity in a previous life. seven judges looked at his
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plight and six said it was clear, this man did what a reasonable person would do. the one judge who didn't see it that way. the case came out in the midst of our hearing in this room. the supreme court unanimously in a an opinion written by justice roberts struck down the very words written by judge gorsuch it came to this poor disabled child and his education and i have to disagree with my friend from south carolina. read the exchange between judge gorsuch and senator klobuchar. he was doing more. he was reaching into another circuit and he was embellishing that standard with a word which clearly as the supreme court found that kids like luke p. would get no education at all.
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grace weng, preffesor at kansas state university facing a bone arrow transfer and was given six months off. she was supposed to return to the classroom at the end of six months but there was a flu epidemic on campus and she said i'm afraid to go back and i'm vulnerable having gone through a bone marrow transplant and said if you don't return, you are fired. they said that is a reasonable decision by kansas state. i don't think it was. nlrb versus community health services, his dissent and argued that workers who were unfairly locked out would get a wind fall by keeping their wages from second jobs. i won't go through the list of cases. we have read them all and do
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paint a troubling picture of judge gorsuch and his values. there is a clear pattern in these cases. judge gorsuch claims to support neutral philosophies but somehow time and again they lead him to the same outcome, the worker, victim and consumer lose, the corporate elite win. he doesn't want to follow the law but change the law. federal judge john kane came here and testified and supported him. he said, judge gorsuch is the only judge i know only judge of whom i'm aware who has written majority opinions and concurring opinions in the same case. why would a judge would do that. consider one of the cases where judge gorsuch use a concurrence to abandonning the chevron octrine.
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found that an attorney provided ineffective assistance of counsel. williams versus jones, found no prejudice for a defendant when his attorney said he would quit if the defendant didn't accept a plea deal and then falsely told his client it would be perjury to accept a 10-year plea agreement instead of life without parole. i asked him about that case and thought that that man had good
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representation and fair trial. two republican appointees disagreed and judge gorsuch reasoning was rejected by the supreme court when the court held that the accused must have competent guidance from an attorney in deciding whether to take a plea deal. judge gorsuch has provided he would be an independent check on the president or any president. i won't replow that ground that was handled by senators feinstein and leahy. for my republican colleagues who never tire bringing up judge gorsuch's 2006 confirmation. may i remind you the obvious, we didn't know about his troubling record at the justice department and we didn't have a decade of judicial decisions where judge gorsuch tilted the playing field toward big business and away from american families. the art of evasion is used by
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most nominees but judge gorsuch developed it to a new level. and said virtually nothing at this hearing to ease concerns many of us about chief of staff reince priebus' declaration that judge gorsuch was a man of the vision of donald trump. no one has illusions what is going on here and we know who sent him and the american bar association says he is well qualified. if that were the standard we wouldn't be meeting in this formal. we would be celebrating merrick garland one year on the bench. we are here because of the republicans to line this vacancy up for the next republican president. there has been a lot of damage that may be done to the senate with this nomination and the votes we take.
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it breaks my heart to find us in this position. i love this place. i have been here for a big part of my life and i can remember things about it as senators who are senior as i am about this institution. what it used to be like, what the standards used to be, the pride we took in the senate. but then came this onslaught of filibusters, unprecedented in the history of this body. senator mcconnell and republican majority at the time, even in the minority status did everything they could to stop the orderly consideration of bills and nominations, leading to the point where the second most important federal court in the land, they couldn't feel vake cans cyst because of the threats of filibusters for these nominations and that's what led to this well worn and well discussed rules change. and that's what brings us to
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his point. senate traditions will change this week. in honesty, they started changing a long time ago. i just hope at the end of the day we can resurrect what this institution was about and should be about. this nomination doesn't give us that chance unfortunately and we know what the fate of this nomination is likely to be. mr. chairman, i have comments on the other two nominees. but at the outset, i thought you were going to ask us -- senator grassley: you don't have to, but i'm going to. senator durbin: at the risk of going on, i'll put the statement in the record. at rose bridenstine's hearing he survived republican and democratic presidents and was u.s. attorney. he comes from high recommendations from our senators from the state of maryland. i was troubled when he said he
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hadn't read the intelligence community assessment in russia's meddling in our election. he has now read the report and quote had no reason to doubt the intelligence community's assessment and qualified the recusal of attorney general sessions and i thank him for that. he would still bear responsibility for this russian in the justice department's investigation. i hope he will appoint a special counsel for that purpose. he will have responsibility over criminal justice efforts at the department of justice and i'm concerned about the sentencing guidelines which attorney general sessions has now suggested. i'm going to report him out of committee and withhold my final vote on the floor until there is clarification. stephen cook, has been tapped as the deputy attorney general and
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top deputy on criminal justice policy. the media report says meet the hard liner that jeff sessions picked. steve cook, a former federal prosecutor supports controversial policies calling for lengthy prison sentence. they will remember mr. cook opposing the bill which the chairman of this committee and i support that sentencing reform corrections act. on brand, let me say, i believe that i have to oppose her for three reasons. she spent much of this decade working as chief counsel for the u.s. chamber. when i asked her if she would recuse herself on matters involving the chamber, she couldn't answer. i asked her questions about civil rights and i will put those in records.
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misbrand refused to say climate change is real. troubling for a purpose who would see the justice department environment division. she will be treated better than president obama's nominee who was never given a floor vote. ms. brand will get a vote, but i vote know. [captions copyright national cable satellite corp. 2017] nick nick president trump met the egyptian leader as he arrived at the west wing.
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president trump: it's great to be with the president of egypt. and i will tell you,


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