From the Congressional Record Online through GPO
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to resume consideration of the Duke
nomination, which the clerk will report.
The senior assistant legislative clerk read the nomination of Elaine
C. Duke, of Virginia, to be Deputy Secretary of Homeland Security.
The PRESIDING OFFICER. Under the previous order, the time until 12
noon will be equally divided in the usual form.
The minority whip.
Mr. DURBIN. Madam President, I ask unanimous consent to speak as in
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Neil Gorsuch
Mr. DURBIN. Madam President, there is a poem that I recall, and it
goes like this:
When I was going up the stair,
I met a man who wasn't there.
He wasn't there again today.
I wish that man would go away.
I thought about that poem when I listened to the majority leader's
speech about how cooperative he has been when it comes to Supreme Court
nominations. The name he forgot to mention was Merrick Garland--Merrick
Garland, who was nominated by President Obama to fill the vacancy of
Justice Antonin Scalia; Merrick Garland, the only Presidential nominee
to the Supreme Court in the history of the U.S. Senate to be denied a
hearing and a vote; Merrick Garland, about whom Senator McConnell said:
I will not only refuse to give him a hearing and a vote, I refuse to
even see him; Merrick Garland, who was found unanimously “well
qualified” by the American Bar Association; Merrick Garland, the
person who received bipartisan support for appointment to the DC
Circuit Court of Appeals, the second highest court in the land.
So when the majority leader comes to the floor to talk about how
cooperative he has been with previous Presidents when it comes to
Supreme Court nominees, he conveniently omits the most obvious reason
for our problems this week: the unilateral decision by the majority
leader to preclude any vote on Merrick Garland to fill the vacancy of
I know Judge Garland. I have met with him several times. He is a
balanced, moderate, experienced jurist who should be on the U.S.
Supreme Court. We should not be entertaining Neil Gorsuch this week; we
ought to be celebrating the first anniversary of Merrick Garland's
service on the U.S. Supreme Court. The reason we are not is that
Senator McConnell and the Senate Republicans refused us that
opportunity. They said: No, you cannot vote on that.
Remember their logic? The logic was: Wait a minute. This is the last
year of President Obama's Presidency. Why should he be able to fill a
vacancy on the U.S. Supreme Court when we have an election coming soon?
That is an interesting argument. There are two things I am troubled
I do believe President Obama was elected for 4 years in his second
term, not for 3, which meant he had authority in the fourth year, as he
did in the third year.
Secondly, the Republican argument ignores history. It ignores the
obvious history when we had a situation with President Ronald Reagan,
in his last year in office, with regard to a vacancy on the U.S.
Supreme Court. There were Democrats in charge of the Senate and
Democrats in charge of the Senate Judiciary Committee, and President
Ronald Reagan, a lameduck President in his last year, nominated Anthony
Kennedy to serve on the Court. He sent the name to the Democratic
Senate, and there was a hearing before the Senate Judiciary Committee
and a vote that sent him to the Court.
You never hear that story from Senator McConnell. It is because it
does not fit into his playbook as to why he would wait for a year and
refuse to give Merrick Garland a hearing and a vote. The reasoning is
obvious: Clearly he was banking on the possibility that the electorate
would choose a Republican President--and that is what happened--so that
a Republican President--in this case, Donald Trump--could fill the
vacancy, not Barack Obama.
So when I hear the speeches on the floor by Senator McConnell about
his bipartisan cooperation, he leaves out an important chapter--the
last chapter, the one that brought us to this moment in the Senate.
I look at the situation before us today, and it is a sad situation
for the Senate--sad in that we have reached the point in which a
Supreme Court nomination has become so political, more so than at any
time in history.
Where did the name “Neil Gorsuch” come from for the Supreme Court?
It came from a list that was prepared by two organizations: the
Federalist Society and the Heritage Foundation. These are both
Republican advocacy groups who represent special interests and are
funded by special interests. They came up with the names and gave them
to Presidential candidate Donald Trump. It was a list of 21 names. He
issued them twice--in March and in September of the last campaign
year--and Neil Gorsuch's name was on the list.
The Federalist Society was created in 1982. Nominally, it is an
organization that is committed to originalism.
In other words, it looks to the clear meaning of the Constitution, what
the Founding Fathers meant. They say that over and over again: Just
look to the Constitution and read it, and then we will know what we
should do. That was in a speech that was given by Edwin Meese, the
then-Attorney General in 1985, who explained the Federalist Society's
On its face, it sounds at least arguably defensible that there would
be an organization that is so committed to the Constitution that it
wants Supreme Court nominees who will follow it as literally as
possible. Yet, as Justice William Brennan on the Supreme Court said, if
they think they can find in those musty volumes from back in the 18th
century all of the answers to all of the questions on the issues we
face today--here is what he called it--that is arrogance posing as
Yet that is what they said the Federalist Society was all about. If
that were all the Federalist Society were about, then I guess one could
argue that they ought to have their day in court, their day in choosing
someone for the Supreme Court, but it is more than that. When you look
at those who finance the Federalist Society--and it is a short list
because they refuse to disclose all their donors--you see the classic
names of Republican support: the Koch brothers, the Mercer family, the
Richard Mellon Scaife family foundation, the ones who pop up over and
over again. Why would these organizations be so determined to pick the
next nominee to fill the vacancy on the Supreme Court? It is because
there is so much at stake.
In a Judiciary Committee hearing, my colleague Sheldon Whitehouse
went through the box score when it came to the Supreme Court and how
they ruled when given a choice between special interests and corporate
elites versus average workers and consumers and families. As Senator
Whitehouse pointed out graphically, in detail, overwhelmingly, this
Court has ruled for the special interests. Sixty-nine percent of the
Roberts' Court's rulings are in favor of the U.S. Chamber of Commerce's
position on issues, according to one study.
Why would a special interest organization like the Federalist Society
care? It wants to keep a good thing going, from its point of view. That
is why this is a different Supreme Court nominee.
I yield the floor.
Recognition of the Minority Leader
The PRESIDING OFFICER (Mr. Kennedy). The Democratic leader is
Congratulating the Senior Senator from Illinois
Mr. SCHUMER. Mr. President, first, I sat at the back of the room to
listen to my colleague from Illinois. I know he got up because he
wanted very much to respond to the majority leader, and I thought he
did a great job. It was a pleasure to listen, as always, to one of the
most articulate Members with whom I have ever served in any legislative
body, as well as his having many other good traits.
Equal Pay Day
Mr. President, today is Equal Pay Day. Unlike many holidays on our
calendar, Equal Pay Day is not actually a commemoration of some
achievement. Equal pay for women is still not close to a reality. Women
still make 79 cents for every dollar a man makes in the same position.
African-American women are making 64 cents on the dollar. Latina women
are making 54 cents on the dollar. That is not right. It is holding the
American dream out of reach for too many women in this country. So
Equal Pay Day is not a commemoration; it is a reminder that glass
ceilings are everywhere and that there are hugely consequential and
tangible barriers that women face every single day that men do not.
In 2007, the Supreme Court, in a 5-to-4 decision by the conservative
majority in Ledbetter v. Goodyear, ruled that Lilly Ledbetter could not
pursue her claim that she was entitled to equal pay. The Lilly
Ledbetter Fair Pay Act, which reversed this unfair Supreme Court
decision, was the first bill President Obama signed into law in 2009.
Nomination of Neil Gorsuch
Mr. President, this leads me to the Supreme Court. It is just one of
so many examples of what is at stake in the nomination of Judge Gorsuch
to the Supreme Court, which we now debate here on the floor of the
I was listening to the majority leader earlier this morning, and I
cannot believe he can stand here on the floor of the U.S. Senate and
with a straight face say that Democrats are launching the first
partisan filibuster of a Supreme Court nominee. What the majority
leader did to Merrick Garland by denying him even a hearing and a vote
is even worse than a filibuster. For him to accuse Democrats of the
first partisan filibuster on the Supreme Court belies the facts, belies
the history, belies the basic truth.
My friend Representative Adam Schiff said: “When McConnell deprived
President Obama of a vote on Garland, it was a nuclear option. The rest
is fallout.” Let me repeat that. Adam Schiff put it better than I ever
could. “When McConnell deprived President Obama of a vote on Garland,
it was a nuclear option. The rest is fallout.”
Even though my friend the majority leader keeps insisting that there
is no principled reason to vote against Judge Gorsuch, we Democrats
disagree. First, he has instinctively favored corporate interests over
average Americans. Second, he has not shown a scintilla of independence
from President Trump. Third, as my colleague from Illinois elaborated,
he was handpicked by hard-right special interest groups, not because he
called balls and strikes. They would not put all of that effort and
money into a caller of balls and strikes. These are ideologues who want
to move America far to the right. He was picked by hard-right special
interest groups because his views are outside the mainstream.
According to analyses of his record on the Tenth Circuit, which were
conducted by the New York Times and the Washington Post, by experts on
the Court, Judge Gorsuch would be one of the most conservative voices
ever on the Supreme Court should he achieve that.
The Washington Post:
Gorsuch's actual voting behavior suggests he is to the
right of both Alito and Thomas and by a substantial margin.
That would make him the most conservative Justice on the
Court in recent memory.
That is why the Heritage Foundation and the Federalist Society put
Judge Gorsuch on their list for President Trump.
As Emily Bazelon of the New York Times put it in a brilliant article
that I would urge all of my colleagues to read:
The reality is that Judge Gorsuch embraces a judicial
philosophy that would do nothing less than undermine the
structure of modern government--including the rules that keep
our water clean, regulate the financial markets and protect
workers and consumers.
I ask unanimous consent to have that article printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Apr. 1, 2017]
The Government Gorsuch Wants To Undo
(By Emily Bazelon and Eric Posner)
At recent Senate hearings to fill the Supreme Court's open
seat, Judge Neil Gorsuch came across as a thoroughly bland
and nonthreatening nominee. The idea was to give as little
ammunition as possible to opponents when his nomination comes
up this week for a vote, one that Senate Democrats may try to
upend with a filibuster.
But the reality is that Judge Gorsuch embraces a judicial
philosophy that would do nothing less than undermine the
structure of modern government--including the rules that keep
our water clean, regulate the financial markets and protect
workers and consumers. In strongly opposing the
administrative state, Judge Gorsuch is in the company of
incendiary figures like the White House adviser Steve Bannon,
who has called for its “deconstruction.” The Republican-
dominated House, too, has passed a bill designed to severely
curtail the power of federal agencies.
Businesses have always complained that government
regulations increase their costs, and no doubt some
regulations are ill-conceived. But a small group of
conservative intellectuals have gone much further to argue
that the rules that safeguard our welfare and the orderly
functioning of the market have been fashioned in a way that's
not constitutionally legitimate. This once-fringe cause of
the right asserts, as Judge Gorsuch put it in a speech last
year, that the administrative state “poses a grave threat to
our values of personal liberty.”
The 80 years of law that are at stake began with the New
Deal. President Franklin D. Roosevelt believed that the Great
Depression was caused in part by ruinous competition among
companies. In 1933, Congress passed the National Industrial
Recovery Act, which
allowed the president to approve “fair competition”
standards for different trades and industries. The next year,
Roosevelt approved a code for the poultry industry, which,
among other things, set a minimum wage and maximum hours for
workers, and hygiene requirements for slaughterhouses. Such
basic workplace protections and constraints on the free
market are now taken for granted.
But in 1935, after a New York City slaughterhouse operator
was convicted of violating the poultry code, the Supreme
Court called into question the whole approach of the New
Deal, by holding that the N.I.R.A. was an “unconstitutional
delegation by Congress of a legislative power.” Only
Congress can create rules like the poultry code, the justices
said. Because Congress did not define “fair competition,”
leaving the rule-making to the president, the N.I.R.A.
violated the Constitution's separation of powers.
The court's ruling in Schechter Poultry Corp. v. the United
States, along with another case decided the same year, are
the only instances in which the Supreme Court has ever struck
down a federal statute based on this rationale, known as the
“nondelegation doctrine.” Schechter Poultry's stand against
executive-branch rule-making proved to be a legal dead end,
and for good reason. As the court has recognized over and
over, before and since 1935, Congress is a cumbersome body
that moves slowly in the best of times, while the economy is
an incredibly dynamic system. For the sake of business as
well as labor, the updating of regulations can't wait for
Congress to give highly specific and detailed directions.
The New Deal filled the gap by giving policy-making
authority to agencies, including the Securities and Exchange
Commission, which protects investors, and the National Labor
Relations Board, which oversees collective bargaining between
unions and employers. Later came other agencies, including
the Environmental Protection Agency, the Occupational Safety
and Health Administration (which regulates workplace safety)
and the Department of Homeland Security. Still other agencies
regulate the broadcast spectrum, keep the national parks
open, help farmers and assist Americans who are overseas.
Administrative agencies coordinated the response to Sept. 11,
kept the Ebola outbreak in check and were instrumental to
ending the last financial crisis. They regulate the safety of
food, drugs, airplanes and nuclear power plants. The
administrative state isn't optional in our complex society.
But if the regulatory power of this arm of government is
necessary, it also poses a risk that federal agencies, with
their large bureaucracies and potential ties to lobbyists,
could abuse their power. Congress sought to address that
concern in 1946, by passing the Administrative Procedure Act,
which ensured a role for the judiciary in overseeing rule-
making by agencies.
The system worked well enough for decades, but questions
arose when Ronald Reagan came to power promising to
deregulate. His E.P.A. sought to weaken a rule, issue by the
Carter administration, which called for regulating
“stationary sources” of air pollution--a broad wording that
is open to interpretation. When President Reagan's E.P.A.
narrowed the definition of what counted as a “stationary
source” to allow plants to emit more pollutants, an
environmental group challenged the agency. The Supreme Court
held in 1984 in Chevron v. Natural Resources Defense Council
that the E.P.A. (and any agency) could determine the meaning
of ambiguous term in the law. The rule came to be known as
Chevron deference: When Congress uses ambiguous language in a
statute, courts must defer to an agency's reasonable
interpretation of what the words mean.
Chevron was not viewed as a left-leaning decision. The
Supreme Court decided in favor of the Reagan administration,
after all, voting 6 to 0 (three justices did not take part),
and spanning the ideological spectrum. After the conservative
icon Justice Antonin Scalia reached the Supreme Court, he
declared himself a Chevron fan. “In the long run Chevron
will endure,” Justice Scalia wrote in a 1989 article,
“because it more accurately reflects the reality of
government, and thus more adequately serves its needs.”
That was then. But the Reagan administration's effort to
cut back on regulation ran out of steam. It turned out that
the public often likes regulation--because it keeps the air
and water clean, the workplace safe and the financial system
in working order. Deregulation of the financial system led to
the savings-and-loans crisis of the 1980s and the financial
crisis a decade ago, costing taxpayers billions.
Businesses, however, have continued to complain that the
federal government regulates too much. In the past 20 years,
conservative legal scholars have bolstered the red-tape
critique with a constitutional one. They argued that only
Congress--not agencies--can create rules. This is Schechter
Poultry all over again.
And Judge Gorsuch has forcefully joined in. Last year, in a
concurring opinion in an immigration case called Gutierrez-
Brizuela v. Lynch, he attacked Chevron deference, writing
that the rule “certainly seems to have added prodigious new
powers to an already titanic administrative state.”
Remarkably, Judge Gorsuch argued that Chevron--one of the
most frequently cited cases in the legal canon--is
illegitimate in part because it is out of step with (you
guessed it) Schechter Poultry. Never mind that the Supreme
Court hasn't since relied on its 1935 attempt to scuttle the
New Deal. Nonetheless, Judge Gorsuch wrote that in light of
Schechter Poultry, “you might ask how is it that Chevron--a
rule that invests agencies with pretty unfettered power to
regulate a lot more than chicken--can evade the chopping
At his confirmation hearings, Judge Gorsuch hinted that he
might vote to overturn Chevron without saying so directly,
noting that the administrative state existed long before
Chevron was decided in 1984. The implication is that little
would change if courts stopped deferring to the E.P.A.'s or
the Department of Labor's reading of a statute. Judges would
interpret the law. Who could object to that?
But here's the thing: Judge Gorsuch is skeptical that
Congress can use broadly written laws to delegate authority
to agencies in the first place. That can mean only that at
least portions of such statutes--the source of so many
regulations that safeguard Americans' welfare--must be sent
back to Congress, to redo or not.
On the current Supreme Court, only Justice Clarence Thomas
seeks to strip power from the administrative state by
undercutting Chevron and even reviving the obsolete and
discredited nondelegation doctrine, as he explains in
opinions approvingly cited by Judge Gorsuch. But President
Trump may well appoint additional justices, and the other
conservatives on the court have expressed some uneasiness
with Chevron, though as yet they are not on board for
overturning it. What would happen if agencies could not make
rules for the financial industry and for consumer,
environmental and workplace protection? Decades of experience
in the United States and around the world teach that the
administrative state is a necessary part of the modern market
economy. With Judge Gorsuch on the Supreme Court, we will be
one step closer to testing that premise.
Mr. SCHUMER. There are clearly principled reasons to oppose Judge
Gorsuch, and enough of us Democrats have reasons to prevent his
nomination from moving forward on Thursday's cloture vote.
The question is no longer whether Judge Gorsuch will get enough votes
on the cloture motion; now the question is, Will the majority leader
and our friends on the other side break the rules of the Senate to
approve Judge Gorsuch on a majority vote? That question should be the
focus of the debate here on the floor, and it should weigh heavily on
the conscience of every Senator.
Ultimately, my Republican friends face a simple choice: They can
fundamentally alter the rules and traditions of this great body or they
can sit down with us Democrats and the President to come up with a
mainstream nominee who can earn bipartisan support and pass the Senate.
No one is making our Republican colleagues change the rules. No one
is forcing Senator McConnell to change the rules. He is doing it of his
own volition, just as he prevented Merrick Garland from getting a vote
of his own volition. Senator McConnell and my Republican colleagues are
completely free actors in making a choice--a very bad one, in our
I know my friends on the other side of the aisle are uncomfortable
with this choice, so they are scrambling for arguments to justify
breaking the rules. Let me go through a few of these justifications and
explain why each does not hold up.
First, many of my Republican colleagues will argue that they can
break the rules because “Democrats started it in 2013” when we
lowered the bar for lower court nominees and Cabinet appointments.
Let's talk about that. The reason Majority Leader Reid changed the
rules was that Republicans had ramped up the use of the filibuster--the
very filibuster they now decry--to historic proportions. They
filibustered 79 nominees in the first 5 years of Obama's Presidency.
Let's put that into perspective. Prior to President Obama, there were
68 filibusters on nominations under all of the other Presidents
combined, from George Washington to George Bush. We had 79. Our
colleagues and Leader McConnell, the filibuster is wrong? There were
79--more than all of the other Presidents put together. The shoe was on
a different foot.
They deliberately kept open three seats on the second most important
court in the land--the DC Court of Appeals--because it had such
influence over decisions made by the government. This is the court,
other than the U.S. Supreme Court, that the Federalist Society and the
Heritage Foundation hate the most. The deal that a
number of Senators made in 2005 allowed several of the most
conservative judges to be confirmed to that court--very conservative
people. It left a bad taste in my mouth, and I am sure in my
colleagues' and in many others.
But then, when President Obama came in, they insisted on not filling
any additional seats on the court--which, of course, would have been
Democratic seats--and eventually held open 3 of the 11 seats on that
court. They said they would not allow those seats to be filled by
President Obama--an eerie precedent, which the majority leader repeated
with Merrick Garland. He didn't want the DC Circuit to have Obama-
appointed, Democratic-appointed nominees; he didn't want that on the
Supreme Court, so he blocked Merrick Garland. He didn't want it on the
DC Circuit, so they wouldn't let any of President Obama's nominees come
to the floor.
Merrick Garland's nomination was not the first time the majority
leader held open a judicial seat because it wasn't the President of his
party, and that was not during an election year.
At the time, I spoke with my good friend from Tennessee, Senator
Alexander. I asked him to go to Senator McConnell and tell him that the
pressure on our side to change these rules--after all of these
unprecedented numbers of filibusters--was going to be large. I said to
Senator Alexander: Let's try to avoid it. But Senator McConnell and
Republicans refused all of our overtures to break the deadlock they
To be clear, Democrats changed the rules after 1,776 days of
obstruction on President Obama's nominees. My Republican friends are
contemplating changing the rules after barely more than 70 days of
President Trump's administration. We moved to change the rules after 79
cloture motions had to be filed. They are talking about changing the
rules after 1 nominee fails to meet the 60-vote threshold.
So, yes, Democrats changed the rules in 2013, but only to surmount an
unprecedented slowdown that was crippling the Federal judiciary, and we
left the 60-vote threshold intact for the Supreme Court deliberately.
We could have changed it. We had free will then, just as Senator
McConnell has it now. But we left the 60-vote threshold intact for the
Supreme Court because we knew and know--just as our Republican friends
know--that the highest Court in the land is different.
Unlike with lower courts, Justices on the Supreme Court don't simply
apply precedents of a higher court; they set the precedents. They have
the ultimate authority under our constitutional government to interpret
the law. Justices on the Supreme Court should be mainstream enough to
garner substantial bipartisan support; hence, why we didn't change the
rules; hence, why we believe in the 60-vote threshold; and hence, why
55 or 60 percent of all Americans agree with the 60-vote threshold,
according to the most recent polls. To me, and I think to most of my
friends on the Republican side, that is not a good enough reason to
escalate the argument and break the rules for the Supreme Court.
Second, as I have mentioned, I have heard my Republican friends
complain that Democrats are conducting the first partisan filibuster of
a Supreme Court nominee in history, so that is the reason they can
justify breaking the rules because Democrats are the ones taking it to
a new level. Again, I have just two words for my Republican friends:
Merrick Garland. The Republican majority conducted the first partisan
filibuster of a Supreme Court pick when their members refused to have
hearings for Merrick Garland.
In fact, what the Republicans did was worse than a filibuster. The
fact is, the Republicans blocked Merrick Garland using the most
unprecedented of maneuvers. Now we are likely to block Judge Gorsuch
because we are insisting on a bar of 60 votes.
We think a 60-vote bar is far more in keeping with tradition than
what the Republicans did to Merrick Garland. We don't think the two are
equivalent. Nonetheless, in the history of the Scalia vacancy, both
sides have lost. We didn't get Merrick Garland; they are not getting 60
votes on Judge Gorsuch.
So we are back to square one right now, and the Republicans have
total freedom of choice in this situation.
Finally, Republicans have started to argue that because Democrats
will not confirm Judge Gorsuch, we will not confirm anyone nominated by
President Trump, so they have to break the rules right now. That is an
easy one. I am the Democratic leader. I can tell you myself that there
are mainstream Republican nominees who could earn adequate Democratic
And just look at recent history. Justices Roberts and Alito, two
conservative judges who many of us on the Democratic side probably
don't agree with, both earned over 60 votes. They got Democratic votes.
While there was a cloture vote on Justice Alito, he was able to earn
enough bipartisan support that cloture was invoked with over 70 votes.
He got only 58 when we voted for him, but the key vote was the cloture
Let's have the President consult Members of both parties--he didn't
with Gorsuch--and try to come up with a consensus nominee who could
meet a 60-vote threshold. That is what President Clinton did with my
friend, the Senator from Utah, in selecting Justices Ginsberg and
Breyer. It is what President Obama did with Merrick Garland.
Of course, we realize a nominee selected this way would not agree
with many of our views. That is true. But President Trump was elected
President, and he is entitled by the Constitution to nominate. But
Judge Gorsuch is so far out of the mainstream that the Washington Post
said his voting record would place him to the right of Justice Thomas.
He was selected by the Heritage Foundation and the Federalist Society
without an iota of input from the Senate.
There is a better way to do this. I know it sometimes may seem like a
foreign concept in our hyperpolarized politics these days, but there is
always the option of actually consulting Democrats on a nominee and
discussing a way forward that both parties can live with. We are
willing to meet anywhere, anytime.
So my friends on the other side can dredge up these old wounds and
shopworn talking points if they choose. If Republicans want to conduct
a partisan, “they started it” exercise, I am sure we could trace this
all the way back to the Hamilton-Burr duel. But at the end of the day,
they have to confront a simple choice: Are they willing to break the
rules of the Senate or can they work with us on a way forward? I, for
one, hope we can find a way to compromise. Judge Gorsuch was not a
compromise. He was solely chosen without any consultation. So it is not
that there is a Merrick equivalency.
My friend the majority leader said: “I think we can stipulate that
in the Senate it takes 60 votes on controversial matters.” If anything
is a controversial, important matter, it is a selection for the Supreme
Court, and Senator McConnell has repeatedly stood for the rightness of
60 votes on important and controversial issues.
If Senator McConnell wants to change his view on the 60 votes all of
a sudden and Republicans decide to go along with him, it will not be
because Democrats started it, because that is not true. It will not be
because Democrats will not confirm any President Trump-nominated
Justice, because that is not true. It will be because they choose to do
so, and they will have to bear the unfortunate consequences.
Mr. President, I yield the floor.
Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mrs. CAPITO. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Miners Protection Act
Mrs. CAPITO. Mr. President, I rise today, as I have on a number of
occasions in the past, to express the urgent need for action to protect
the retirement security of our Nation's coal miners. Because of
bankruptcies that have decimated the coal industry, we have lost over
22,000 jobs in our State, but more than 22,000 retired coal miners and
their spouses are at risk of losing their healthcare benefits at the
end of April.
I have visited with retired miners from all across West Virginia to
discuss this situation. During the February congressional recess, I
visited the Cabin Creek Health Center in West Virginia. The Cabin Creek
Health Center serves hundreds of coal miners and their families. They
provide pulmonary rehabilitation services for miners suffering from
black lung. They also provide primary care services for miners and
other members of their community. During my visit, I met with several
retired miners who would lose their health insurance coverage if
Congress fails to act. These individuals are suffering from serious
medical conditions and were unsure how they would afford their
healthcare if they were to lose their current coverage.
Just 2 weeks ago, I met with about a dozen retired miners from West
Virginia who came to Washington to support the Miners Protection Act
and to stand up for their hard-earned retirement benefits. Other groups
of West Virginia miners have come to Washington over the past few
months. All have carried one message to Congress: Keep the promise of
our lifetime health benefits. On March 1, thousands of miners received
notice that their health insurance would be terminated in 60 days. Most
of these same people received that very same message just last October.
As I listen to their stories, it is hard to imagine the worry these
notices cause for miners and their families.
In December 2016, Congress included language in the continuing
appropriations legislation that preserved health coverage for these
retired miners for just 4 months. While that provision kept mining
families from losing their health coverage--which is good--at the end
of last year, a permanent solution is critically needed.
The 4-month provision from the December CR expires at the end of this
month. It is vital--vital--that Congress take action within the next
few weeks to provide healthcare and peace of mind for these miners in
West Virginia and across coal country. Our retired miners deserve their
promised healthcare coverage and should not have to receive another
cancellation notice or another Band-Aid solution. We have a bipartisan
vehicle for action. I have worked closely with Senator Joe Manchin,
Senator Rob Portman, and others to introduce and promote the bipartisan
Miners Protection Act, which would preserve healthcare and pension
benefits for our miners. Our bill passed the Senate Finance Committee
last year by a bipartisan vote of 18 to 8. I also would like to thank
the majority leader, Senator Mitch McConnell, because he has introduced
legislation that would provide a permanent healthcare solution for our
With all of us pulling together and with us working together, I am
confident the Senate will act before the end of this month to continue
these critical healthcare benefits for our miners. I ask my colleagues
for their support in addressing this important issue for our working
The PRESIDING OFFICER. The Senator from Texas.
Nomination of Neil Gorsuch
Mr. CORNYN. Mr. President, yesterday the Senate Judiciary Committee
voted out the nomination of Judge Neil Gorsuch to fill the vacancy on
the Supreme Court left by the death of Justice Scalia. During the
meeting, as the Presiding Officer knows, our Democratic colleagues
trotted out the same old tired arguments we have heard time and again
about Judge Gorsuch.
In the end, though, none of those arguments hold water, and of course
many of them aren't even about him. Instead, these arguments reveal how
our colleagues across the aisle are grasping for reasons to justify an
unprecedented partisan filibuster of a Supreme Court Justice.
Some object to the nomination of Judge Gorsuch because they claim he
refuses to answer specific questions. But I ask: How would any of us
feel if the judge before whom we might later appear had previously, in
order to get a confirmation of his nomination, made certain promises of
how he would judge that case when presented at a future date? We would
all feel more than a little bit betrayed and even cheated if the judge
had prejudged our case before he even heard it. The judge is simply
engaging in a common practice for Supreme Court nominees. They steer
clear of any questions that may pertain to cases they may have to rule
on later. It is a matter, as the Presiding Officer knows, of judicial
ethics, and we wouldn't have it any other way.
Justice Ruth Bader Ginsburg set this precedent early on. During her
confirmation hearing in 1993, she said she didn't want to give any
hints or previews about how she might vote on an issue before her. So
she politely and respectfully declined. Others followed her example,
and Judge Gorsuch is, of course, doing precisely the same.
By any fair review, Judge Gorsuch has a history of 10 years as a
judge sitting on the Tenth Circuit Court of Appeals out of Denver, CO.
He has a history of interpreting the law fairly, basing his judgments
on the law and the facts, without regard to politics and without
respect to persons.
That brings me to this argument that somehow he is against the little
guy. Clearly, a review of the records demonstrates that this is not so.
But, again, how are judges supposed to perform? Are they supposed to
see the litigants--the parties to a lawsuit--in their court and say:
Well, you have a big guy and you have a little guy, and I am always
going to vote or render a judgment for the little guy without regard to
the law or the facts?
I realize that sometimes our colleagues can weave a story that seems
somewhat sympathetic when it comes to the fact that not everybody is
guaranteed a win in court. As a matter of fact, when there are two
parties to a lawsuit, one of those parties is likely to be disappointed
in the outcome. But that is what judges are there for. That is what
they are supposed to do. They are supposed to render judgments, without
regard to personal preferences or politics or without regard to their
sympathies, let's say, for one of the parties to the lawsuit.
Judge Gorsuch even said this during his hearing: No one will capture
me. No one will capture me--meaning that no special interest group or
faction would derail him from following the law, wherever it may lead.
That is why Judge Gorsuch is universally respected. That is why he was
confirmed by voice vote 10 years ago to the Tenth Circuit Court of
Appeals. No one objected to Judge Gorsuch's confirmation to a lifetime
appointment on the Tenth Circuit Court of Appeals.
Again, as the Presiding Officer knows, the Supreme Court of the
United States only hears about 80 cases, give or take, a year. Most of
the hard work gets done in our judicial system at the district court
level and at the circuit court level, and almost all of the cases end
in circuit courts, like the Tenth Circuit Court of Appeals, on which
Judge Gorsuch serves. That is not to say that the Supreme Court is not
important--it is--in resolving conflicts between the circuits or ruling
on important questions of law to guide all of the judiciary and to
settle these issues for our country, at least for a time, and maybe
even permanently when it comes to constitutional interpretation.
Judge Gorsuch enjoys broad support from across the political
spectrum, especially from his colleagues and members of the bar.
For 13 years, I served on the State judiciary in Texas, with 6 years
as a trial judge and 7 years as a member of the Texas Supreme Court.
When I heard that Judge Gorsuch had participated in 2,700 cases on a
three-judge panel and 97 percent of them were unanimous, that told me
something special about this judge. It takes hard work to build
consensus on a multijudge panel, whether it is three judges or nine
judges, like the Supreme Court. I think what we are going to see out of
this judge is not somebody who is going to decide cases in a knee-jerk
fashion but somebody who is going to work really hard to try to build
consensus on the Supreme Court of the United States.
That is really important to the Supreme Court's respect as an
institution of our government. What causes disrespect for our judiciary
is when judges act like politicians, when they make pledges of how they
will decide cases ahead of time or they campaign, in essence, for votes
based on ideological positions.
Judge Gorsuch is the opposite of that, and that is the kind of judge
America needs right now in the Supreme Court. That is why later on this
week, on Friday, Judge Gorsuch will be confirmed.
In spite of all the evidence in support of the nominee's intellect
and qualifications, without regard to the bipartisan chorus urging his
confirmation, the Democratic leader has decided to do everything he can
to prevent us from even having an up-or-down vote on his nomination.
Unfortunately, he will be making history in urging his Democratic
colleagues to engage in a partisan filibuster against a Supreme Court
justice. In our Nation's long, rich history, there has never been a
successful partisan filibuster of a Supreme Court nominee. Now, some
people want to talk about Abe Fortas back in 1968, which was totally
different. But there has never been a successful partisan filibuster of
a Supreme Court justice until, apparently, this week on Thursday--not
one of them.
Not one of my Republican colleagues mounted a filibuster when
President Obama nominated Justice Sotomayor or Justice Kagan. Both
received an up-or-down vote. That is because that has been the
customary way this Chamber has treated Supreme Court nominees in the
past. Only four times in our Nation's history has a cloture motion
actually even been filed. But cloture was always achieved because, on a
bipartisan basis, enough votes were cast to allow the debate to end and
then to allow an up-or-down vote on the nominee.
To show how new this weaponization of the filibuster has become, back
when Clarence Thomas was confirmed to the Supreme Court of the United
States, he got 52 votes--52 votes--and was confirmed and now serves on
the Supreme Court. Back when he was confirmed, no one even dreamed of
its use. It was theoretically possible, but no one dreamed of the idea
that someone would raise the threshold for confirmation from a 51-
majority vote to 60.
Our colleagues have made it quite clear that they don't want to
support any nominee from this President. So it is not even just about
Judge Gorsuch. It is about any nominee this President might propose to
the Supreme Court. And I think what it boils down to is this: Our
Democratic colleagues haven't gotten over the fact that they lost the
election. I think it really isn't much more complicated than that. They
adamantly resisted participating in the legislative process. They dug
their feet on every Cabinet nomination and now on the Supreme Court
nomination. All they know is to obstruct because they haven't gotten
over the fact that Hillary Clinton isn't President of the United
They keep bringing up Merrick Garland's name. Judge Garland is a fine
man, a good judge who serves on the DC Circuit Court of Appeals, but
you would have to go back to 1888 to find a time when someone was
nominated in a Presidential election year with divided government and
where that person was confirmed.
What we decided to do upon the death of Justice Scalia is to say that
the Supreme Court is so important that we are going to have a
referendum on who gets to nominate the next Justice on the Supreme
Court. Our Democratic friends thought for sure it would be Hillary
Clinton. When it turned out to be Donald Trump, well, all bets were
off, and they were in full opposition mode. But we would have respected
the right of a President Hillary Clinton to fill that nomination
because that is what we said was at stake in the election. I think it
had a big impact on whom got elected on November 8 as President of the
United States and who would fill that vacant seat and any future vacant
seats on the Supreme Court.
So here is the problem. If Judge Gorsuch is an unacceptable nominee,
can you imagine any nominee by this President being acceptable to our
Democratic colleagues? I can't, because Judge Gorsuch is about as good
as you get when it comes to a nominee. He is exactly the type of person
we should hope to see nominated to the Supreme Court.
So it is time for our Democratic colleagues to accept reality and not
to live in some sort of fantasy land and not to try to punish good
people like Judge Gorsuch, who has done an outstanding job, because
they are disappointed in the outcome of the election.
So here is the bottom line. Our Democratic friends will determine how
we get to an up-or-down vote on Judge Gorsuch. If they are genuinely
concerned about the institution of the Senate, they will provide eight
votes to get cloture to close off debate, they will decline to
filibuster the judge, and they will allow an up-and-down vote on this
imminently qualified nominee.
I am holding out hope that more thoughtful and independent Democrats
will think better of the Democratic leader's strategy. Several already
have, and I commend them for it. I hope more will come around to that
idea, but as I and others have said before, regardless of whether they
do, Judge Gorsuch will be confirmed. But it is up to the Democrats to
determine just how we get that done.
I see a friend from Vermont here. I won't take much longer. I want to
take about 3 or 4 minutes, maybe 5 minutes, to debunk some of the myths
about how we got here.
I have in front of me an article written by Neil Lewis dated May 1,
2001. The title of this New York Times story is “Washington Talk;
Democrats Readying for Judicial Fight.” It is dated May 1, 2001. That
was, of course, in the early days of the George W. Bush administration.
What it says is that 42 of the Senate's 50 Democrats attended a private
retreat in Farmington, PA, where the principal topic was forging a
unified party strategy to combat the White House on judicial nominees.
Mr. Lewis goes on to quote one of the people there who said: “They
said it was important for the Senate to change the ground rules” by
which judicial nominees were confirmed. And they did as a result of
that meeting, which was led by Laurence Tribe of Harvard Law School,
Cass Sunstein of the University of Chicago, and Marcia Greenberger,
codirector of the National Women's Law Center. Senator Schumer, the
present Democratic leader, and others, cooked up a new procedural
hurdle for President George W. Bush's judicial nominees, and we
remember what happened after that. It became almost routine for our
Democratic colleagues to filibuster President Bush's nominees.
Ultimately, there came a meeting of a group called the Gang of 14,
where there was a deal worked out that some of President Bush's
judicial nominees were confirmed and others were returned and not
confirmed. There was a decision made at that time by the Gang of 14, a
bipartisan group, that there would be no filibuster of judicial
nominees, absent exceptional circumstances. That was the language that
they used--“absent exceptional circumstances”--that let us get by
that obstacle and those filibusters for a time.
The next major development occurred in 2013, when President Obama
really wanted to see on the DC Circuit Court of Appeals--the primary
circuit court that reviewed administrative decisions--more of his
Democratic nominees on that court. So in a new and unprecedented
fashion, Senator Harry Reid changed the cloture rules once again--so-
called the Reid Rule. For what purpose? It was a naked power grab. It
was to pack the DC Circuit Court of Appeals--one of the least busy
circuit courts in the country--in order to have judges confirmed by 51
Democratic votes that would rubberstamp President Obama's
administrative actions during his administration. And sadly, it worked.
They did just that.
So in a way, we are coming full circle, back to what the tradition in
the Senate was before the year 2000, before Democrats went to this
retreat led by liberal legal activists who cooked up this idea that you
could filibuster judges, and they tried to impose a requirement of 60
votes for confirmation when, in fact, the Constitution contemplates a
majority vote, or 51 votes for confirmation.
Some have said this represents the end of comity in the Senate. I
don't believe that. Some have said this threatens the end of the
legislative filibuster or cloture requirement. I don't believe that
either. There is a big difference between a nominee by a President that
is an up-or-down vote--confirm or don't confirm. There is a big
difference between that and legislation, which by definition is a
consensus-building process by offering an amendment, by offering other
suggestions to build that consensus and get it passed.
You can't amend a nominee. All you can do is vote up or down. So I
believe restoring the status quo ante--going back before 2000 and
restoring the 200-year-plus tradition of the Senate where you don't
filibuster judges--I don't see that as a bad thing. I don't see it as
the end of the legislative filibuster. It is completely apples and
It is true that 51 Senators will be able to close off debate and
confirm Judge Gorsuch, and we will see that happen later this week. It
also means that the next Democratic President can nominate a Supreme
Court nominee, and that person will be confirmed by 51 votes. Again,
this has been the 200-plus-year tradition of the Senate. I don't see
that as the end of the Senate. I don't see this as somehow damaging our
country--the restoration of the status quo before 2000, when our
Democratic colleagues decided to weaponize the filibuster and use it to
block judges based on this trumped-up idea that 60 votes would be
required rather than 51.
I look forward to confirming Judge Gorsuch later this week. He is a
fine man and a very good judge. He has exactly the sort of record we
would want to serve on the Court. No, he is not a liberal activist.
Clearly, Hillary Clinton, if she had been elected, would have nominated
somebody different. That is one reason why we choose whom we choose for
our President, because of the kinds of nominations they will make, and
I must say President Trump has chosen well in Neil Gorsuch.
I yield the floor.
The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.
Mr. SANDERS. Mr. President, I rise today to oppose the nomination of
Judge Neil Gorsuch to the Supreme Court of the United States. After
meeting with Judge Gorsuch and having a long and pleasant conversation,
after hearing his testimony before the Judiciary Committee, and after
carefully reviewing his record, I have concluded that I cannot support
a man with his views for a lifetime seat on the Supreme Court.
The Supreme Court is the most important judicial body in this
country. The decisions that it reaches, even on a 5-to-4 vote, have a
profound impact on all Americans, on our environment, and on our way of
life. As we decide this week as to how we are going to cast our votes
regarding Judge Gorsuch, it is important to understand how that vote
for Judge Gorsuch--for or against him--will impact the lives of the
people of our country.
Let me give you just a few examples as to what is at stake. Seven
years ago, in a 5-to-4 decision, the Supreme Court ruled in a case
called Citizens United, and in that case, by a 5-to-4 decision, the
Court said that billionaires and corporations could spend as much money
as they wanted on the political process. This decision, as all
Americans know, opened the floodgates of corporate money, of money from
the billionaire class, such that the wealthiest people in our country
today can now elect candidates who represent their interests and not
the interests of ordinary Americans.
That decision, Citizens United, is undermining American democracy,
and in my view, it is moving us toward an oligarchic form of society in
which a handful of the wealthiest people in this country--the Koch
brothers and others--now have the power not only to control our economy
but our political life as well. In my view, Citizens United must be
overturned, and we must move back to a nation where our political
system is based on one person, one vote, not on the ability of
billionaires to buy elections.
Based on my conversation with Judge Gorsuch and a review of his
record, do I believe that he will vote to overturn Citizens United?
Absolutely not. Further, I suspect that he will vote to undermine our
democracy even further by supporting the elimination of all
restrictions on campaign finance, something which the Republican
leadership in this body wants.
What the Republican leadership is striving toward is eliminating all
campaign finance restrictions, such that billionaires can say to
somebody: I am going to give you $500 million to run for the U.S.
Senate from California, and you work for me--no independent
expenditures. I will select your campaign manager, your speech writer,
your media adviser, your pollster. You are my employee.
That is what the Republican leadership here wants. They want to
undermine all campaign finance laws, and I believe that Judge Gorsuch
will move this country in that way, a more and more undemocratic way.
Further, when we talk about the political process, it is important to
point out that in 2013, again by a 5-to-4 vote, the Supreme Court
gutted the 1965 historic Voting Rights Act, a law which was passed to
combat racial discrimination in voting in a number of States. What the
Court said, finally, is that in the United States, you have the right
to vote no matter what the color of your skin is, a historic step
forward in making this country the kind of country that it must become.
Well, as a result of that 5-to-4 Supreme Court decision in 2013
gutting the Voting Rights Act, literally days after, we had Republican
Governors and Republican legislatures all over this country, under the
guise of fighting voter fraud, passing laws--everybody knows this--
intentionally designed to make it harder for people of color, for poor
people, for young people, for older people to vote in elections.
In America in the year 2017, it is not too much to ask that all of
our people who are eligible to vote be able to vote without harassment,
without roadblocks, without barriers being placed in front of them.
I know it is a radical idea, but it is called democracy. It is called
democracy. It says that if you are eligible to vote, we want you to
vote. We want you to participate. It says that in America, where we
have one of the lowest voter turnout rates of any major country on
Earth, we want more people to be participating in the political
process, not fewer people. There is nothing I have seen in Judge
Gorsuch's record or in his recent statements to suggest to me that he
is prepared to overturn this disastrous decision on the Voting Rights
In 1973, we all know, the Supreme Court decided Rowe v. Wade and
declared that women have a constitutional right to control their own
bodies. That decision has been subsequently affirmed by multiple cases
as recently as last June.
In his confirmation hearings, Judge Gorsuch refused to state if he
believed Roe v. Wade was good law and should be upheld. Based on his
statements and general philosophy, I believe there is a strong
likelihood that Judge Gorsuch would vote to overturn Roe v. Wade and
deny the women of this country the constitutional right to control
their own bodies. This would be an outrage. I do not want to be a party
to allowing that to happen.
In addition, under Chief Justice John Roberts, the Supreme Court has
time and again voted in support of corporate interests and against the
needs of the working people of our country. After reviewing Judge
Gorsuch's record, I believe he will continue that trend.
In a case called TransAm Trucking, Judge Gorsuch argued that a
trucker was properly fired by his employer for abandoning his cargo at
the side of the road after his truck broke down and he nearly froze to
death waiting for help. Judge Gorsuch literally believed that this man
should have had to choose between his life and his job, and by choosing
his life--not freezing to death--he deserved to lose his job.
In another case, Judge Gorsuch ruled that a university was correct to
fire a professor battling cancer rather than grant her request to
extend her sick leave. I find these decisions troubling.
At a time of massive income and wealth inequality, when so many
working people throughout this country feel powerless at the hands of
the wealthy and the powerful and their employers, we need a Supreme
Court Justice who will protect workers' rights and not just worry about
corporate profits. I fear very much that Judge Gorsuch is not that
I listened carefully to what my friend, Senator Cornyn of Texas, had
to say about this entire process. I have to say that in his remarks
there was a whole lot of obfuscation because there is a simple reality
that we are going to have to deal with in the Senate this week.
Everybody knows, and Senator Cornyn made the point, that under Harry
Reid, the former Democratic leader, the rules, in fact, were changed.
They were changed because of an unprecedented level of Republican
obstructionism, making it impossible for President Obama to get almost
any of his nominees appointed.
Let's not forget that in the midst of that controversial decision--
and it was a controversial decision--the Democratic leader had the
power also to say that we will waive the 60-vote rule regarding Supreme
Court nominees. Democrats had the power, and they chose not to exercise
that power in ending that rule--although, of course, they could have
done that. I think the reason was that the Democratic leadership
appropriately and correctly believed that on an issue of such
magnitude, the appointment of a Supreme Court Justice, it is important
that there be bipartisan support. But right now, it appears that the
Republican leadership is going to do what the Democratic leadership did
not do; that is, waive that rule and get their judge appointed with 51
So I would suggest to the Republican leader that instead of trying to
push this nominee through with 50-some-odd votes, it might make more
sense that, rather than changing the rule, change the nominee, and
bring forth someone who, in fact, can get 60 votes.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
FOREIGN AGENTS REGISTRATION MODERNIZATION AND ENFORCEMENT ACT
Mrs. SHAHEEN. Mr. President, last month I introduced bipartisan
legislation with Senator Todd Young of Indiana to create greater
transparency about foreign individuals and organizations that are
operating in the United States to advance the interests of foreign
governments, including governments that are hostile to the United
In particular, our bill will give the Department of Justice new and
necessary authority to investigate potential violations of the Foreign
Agents Registration Act by RT America, the U.S. branch of RT News or
Russia Today News.
The Foreign Agents Registration Act was passed back in the late 1930s
in response to concerns about Nazi propaganda being disseminated in the
United States without people knowing what it was. It is absolutely
appropriate today for us to take a look at what Russia and other
countries may be doing to our news.
RT America, which broadcasts from studios here in Washington and is
available on cable TV across the United States and across the world,
for that matter, is one of the most high-profile assets in Vladimir
Putin's vast $1.4 billion propaganda machine. According to the U.S.
intelligence community, the Kremlin selects the staff for RT and
closely supervises RT's coverage, including disinformation and false
news stories designed to undermine our democracy.
Here we have a photo that shows exactly what I believe seems to be
happening with RT. This photo was taken from a declassified U.S.
intelligence report, and it shows RT's editor-in-chief--and former
Putin campaign staffer, by the way--Margarita Simonyan briefing Putin
on RT's facilities. So clearly he is interested.
Well, I believe the American people have a right to know if a Russian
Government entity is exploiting our first amendment freedoms to harm
our country. It is galling that RT news has publicly--publicly--boasted
that it can dodge our laws by claiming to be financed by a nonprofit
organization and not the Russian Government.
Well, what my bill--our bill--would do is strengthen the Foreign
Agents Registration Act by giving the Department of Justice authority
to compel foreign organizations to produce documentation to confirm
funding sources and foreign connections. This is investigative
authority that has been recommended by the Department of Justice
inspector general, the Government Accountability Office, and the
Project on Government Oversight. Our bill would create transparency by
giving Justice the authority it needs to investigate RT America and
publicly expose its ties to the Kremlin.
The audacity of Russia's interference in Western democracies,
including extensive meddling in our 2016 Presidential election, is
deeply alarming, and we have learned that Russia's influence campaign
reaches tens of millions of unsuspecting Americans. False news stories
can end up on our Facebook timelines and our Twitter feeds. They shape
the political conversations that we have with our friends at the
supermarket and our colleagues at work.
These are just a few of the headlines from RT. This one is actually
from Sputnik, which is another Russian news outlet. They show the
extent to which these false news stories are being spread around. This
one talks about how “1,000s Turkish forces surround NATO's Incirlik
air base for `inspection' amid rumors of coup attempt,” which suggests
that we were involved in that coup attempt.
“FBI wiretapped Trump Tower in search of `Russian mobster.'”
“Spying on Trump: CIA Whistleblower Points Finger at Clapper,
“Ukrainian Su-25 fighter detected in close approach to MH17 before
crash.” You will remember that this was the plane crash over Ukraine--
that the Russians shot down.
During our Presidential campaign in 2016, dozens of narratives and
false news stories originated in Russia--for instance, this one, the
baseless story that the Obama administration launched a coup against
the Turkish Government from the U.S. airbase in that country.
Earlier, RT News ran numerous reports on supposed U.S. election fraud
and voting machine vulnerabilities, claiming that the results of the
U.S. elections could not be trusted and did not reflect the people's
Well, researchers have traced these and other stories to a common
source: the Kremlin's sophisticated, multifaceted propaganda empire,
which reaches some 600 million people across 130 countries and in 30
If you watch RT News, you will agree that it is not clear whether you
are watching a U.S. news station or a Russian station because it has
slick production values. It is arguably the jewel in the crown of this
According to the U.S. intelligence community report declassified in
The Kremlin has committed significant resources to
expanding the [RT News'] reach, particularly its social media
footprint. . . . RT America has positioned itself as a
domestic US channel and has deliberately sought to obscure
any legal ties to the Russian government.
A prime objective of this propaganda barrage is to influence U.S. and
European public opinion, create confusion, and shape election outcomes.
The Associated Press has identified a building in Moscow where an
estimated 400 internet trolls--fluent in English and well-versed in
American politics--work 12-hour shifts, creating false narratives and
fake news stories. These stories are then seeded on the internet, they
get validated, and they get passed on by popular websites and
eventually end up on our radios, TVs, and smartphone screens.
In an incident earlier this month, a discredited former CIA employee
went on RT News to charge that President Obama had asked British
intelligence to spy on Donald Trump. Well, this false news story was
then spread by legal commentator Anthony Napolitano on the FOX News
show “Fox and Friends,” which is regularly watched by the President.
The claims were then cited by President Trump and White House Press
Secretary Sean Spicer to defend the President's claims that his
predecessor had wiretapped Trump Tower.
Well, we know that during testimony before Congress 2 weeks ago, the
NSA Director, ADM Michael Rogers, agreed with our British allies that
the original RT News story was utterly ridiculous.
At an Armed Services Committee hearing last month, Gen. Philip
Breedlove, Retired, the former Supreme Allied Commander in Europe, told
us that when Russian-backed forces shot down Malaysian Airlines Flight
17 over Ukraine in 2014, the Russians put out four stories within two
news cycles placing the blame on the Ukrainian Government and others.
This is the headline that we see from RT. The general said it took 2
the West to finally debunk these false news stories.
We know that Russia interfered in our 2016 Presidential election. We
know that a Russian influence campaign was one aspect of that
interference. Our intelligence community has concluded that RT America
is an arm of the Russian propaganda juggernaut, operating openly in our
country and taking full advantage of our First Amendment freedoms.
I am sure we would all agree that everyone in the United States, in
every organization, has a right to speak, write, and broadcast freely.
That is what our First Amendment says. We are a resilient democracy. We
are confident that our values and institutions will prevail in the free
marketplace of ideas. Our Constitution protects the right of
individuals and organizations to spread those Russian viewpoints,
disinformation, and even outright lies, but the American people have a
right to know if RT America is a Russian propaganda organ that takes
its direction from the Kremlin. They have a right to know who is
funding their operations.
RT has publicly boasted that it uses a shell nonprofit corporation to
dodge U.S. laws. This legislation, the Foreign Agents Registration
Modernization and Enforcement Act, would put an end to that charade.
The legislation Senator Young and I recently introduced would give the
Department of Justice the authority it needs to request documentation
from RT News on funding sources and foreign connections.
As we see here, clearly the legislation has hit a nerve because
Kremlin spokesman Dmitry Peskov defended RT News, and Russia's State
Duma is considering measures to retaliate.
What RT says about our legislation is that “US senator wants to
probe RT as a `foreign agent' . . . What's next, public executions”?
Well, that is ridiculous. The editor-in-chief at RT News has said that
my legislation is a “persecution of dissenting voices.” As I said,
that is just nonsense. I welcome dissenting voices. That is what our
First Amendment and the United States are all about. But it is not
reasonable or acceptable for an individual or organization working in
the United States on behalf of a hostile foreign government to conceal
funding and direction that it receives from that government.
Vladimir Putin is not going to stop us from enforcing our laws and
protecting our country. We have a responsibility to expose RT News, RT
America, and the entire panoply of tactics that Russia has used to
interfere in our 2016 election and that they continue to currently use
to sow confusion and distrust and spread around stories which pretend
to be news but which are not accurate.
Make no mistake, the Kremlin's influence campaign is an ongoing
enterprise, and to the extent that it is successful, that it can
operate under the radar screen, it will become even more brazen and
more aggressive in the future.
In testimony before the Senate Armed Services Committee last
December, Dr. Robert Kagan of the Brookings Institution said that
Russia's broader objective is to subvert Western democracies, and we
see that going on now in Europe. He said: “For the United States to
ignore this Russian tactic, and particularly now that it has been
deployed against the United States, is to cede to Moscow a powerful
tool of modern geopolitical warfare.” That was a direct quote.
This is a profound test for our country. Our democracy has been
attacked and continues to be under attack from this kind of news that
is being put out by a Kremlin-funded organization which is a hostile
foreign power. We need to understand the Kremlin's tactics, and we need
to expose this propaganda here in the United States, including RT
America. To that end, I urge my colleagues to support the Foreign
Agents Registration Modernization and Enforcement Act. Let's give the
Department of Justice the tools it needs to investigate and expose RT
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Nomination of Neil Gorsuch
Mr. DAINES. Mr. President, today I am joining my colleagues on the
floor with a bit of confusion, a bit of disappointment, and, frankly, a
lot of questions. I am referring to the confirmation of Neil Gorsuch as
the next Supreme Court Justice.
As a Senator, one of the most consequential votes I will cast is a
vote to confirm a U.S. Supreme Court nominee. It is a lifetime
appointment to our Nation's highest Court.
I recently spoke with some students back in Montana, some FFA
students. The average age 17, 18 years old. God willing, Neil Gorsuch
may serve on the Court for 30 or more years. These FFA students'
children and perhaps even grandchildren will be part of Neil Gorsuch's
time on the Court, given that he likely will serve for three decades or
As it stands today, the Senate is on the precipice of confirming Neil
Gorsuch to be our next U.S. Supreme Court Associate Justice. However,
as the news has been reporting, as our Twitter feeds are overflowing
with information, it looks as though my colleagues on the other side of
the aisle are caving to the pressures of the far left, and they are set
to unleash an unprecedented filibuster.
I have met with Judge Gorsuch. I watched his confirmation hearings.
What I have seen and what most Americans agree--Judge Neil Gorsuch has
been incredibly transparent, he has been accessible, and he is the
right man for the position. He is mainstream. He is a westerner. He is
committed to judicial independence. He has a brilliant legal mind--that
is without dispute. He is exceptionally qualified. In fact, the
American Bar Association unanimously rated Judge Gorsuch as “well
qualified.” That is its highest rating.
He has met with nearly 80 Senators. Prior to his hearing, he provided
the Judiciary Committee over 70 pages of written answers about his
personal record. He provided 75,000-plus pages of documents, including
speeches, case briefs, opinions, and written works going as far back as
his college days. The White House archives produced over 180,000 pages
of email and paper records related to Judge Gorsuch's time at the
Department of Justice.
Judge Gorsuch sat for three rounds of questioning, totaling nearly 20
hours, in committee. As the American people watched Judge Gorsuch
before that committee, they saw an exceptionally qualified nominee for
the highest Court in the land, someone who was bright, who was kind. I
would argue that Judge Gorsuch's mind, his intellectual capacity, is
only exceeded by his heart. This is a kind and independent jurist.
When he came before the Judiciary Committee, this was the longest
hearing of any 21st-century nominee. He answered nearly 1,200 questions
during his hearing, which is nearly twice as many questions posed to
Justices Sotomayor, Kagan, or Ginsburg. He was given 299 questions for
the record by Democrats on the Senate Judiciary Committee--the most in
recent history of any Supreme Court nominee. Judge Gorsuch did all of
this with the utmost integrity and with transparency and humility. Yet
here we are, with Democrats engaged in unprecedented obstruction,
refusing to give Neil Gorsuch an up-or-down vote.
The Senate has only ever employed a cloture motion for a Supreme
Court nominee four times in modern history. We voted on cloture when
Justice Alito was nominated in 2006. We did the same in 1968, 1971, and
1986. In 1991, Clarence Thomas was confirmed on a 52-to-48 vote, and in
2006, Samuel Alito was confirmed on a 58-to-42 vote. In fact, when
President Obama was in the White House, Republicans did not filibuster
a nominee. This body confirmed Sonya Sotomayor in 2009 by a vote of 68-
to-31 and confirmed Justice Kagan by a rollcall vote of 63-to-37 in
2010. We did not filibuster.
Let me remind folks that cloture is in place to stop debate, not to
stop a vote. Cloture was put in place to speed the Senate up, end
debate, and move to a vote, not to stop a vote. It was never intended
to be a stall tactic or something to obstruct this body.
This bears repeating. Cloture was put in place to speed up the
process, to prevent obstruction.
This Chamber has never had a partisan filibuster to a Supreme Court
nominee. Let me say that again. This Chamber has never had a partisan
filibuster to a Supreme Court nominee.
So here we are today, with no other option but to invoke this so-
called nuclear option to put an eminently qualified individual on the
U.S. Supreme Court. Judge Gorsuch is the definition of a mainstream
judge. In more than 2,700 cases in which he has participated in the
Tenth Circuit, 97 percent of them have been decided unanimously; in
fact, he was in the majority 99 percent of the time. Yet Senate
Democrats would rather play politics and place the demands of extreme
liberal interests over ensuring regular order.
Let's talk about what we are and what we are not doing. We are in the
Senate, a Chamber I am honored to serve in, representing more than 1
million Montanans. We operate on a set of Parliamentary criteria based
on things that have happened before. Therefore, we are going to
establish a new precedent; we aren't changing the rules. This isn't
happening for the first time. Let us remember that in November of 2013,
Senate majority leader Harry Reid established a new precedent of how
many votes are necessary on executive branch nominees, with the
exclusion of Supreme Court picks.
What is even more shocking to me is that over the past few weeks,
through the hearing process, through the debate and discussions about
Judge Gorsuch on the floor, and with support from across my State of
Montana--let me just name some of those organizations and people in
support of Judge Gorsuch: the Montana Chamber of Commerce; four of
Montana's Tribes--the CSKT, the Crow Tribe, Fort Belknap and Fort Peck;
the Montana Farm Bureau, Judge Russell Fagg of the 13th judicial
district, Judge Jeffrey Langton of the 21st judicial district, Judge
John Larson of the 4th judicial district, State senator Nels Swandal,
retired judge of the 6th Judicial District; the Montana NRA members;
the Montana Grain Growers Association and the Montana Wool Growers
Association; the Montana Stockgrowers Association; our attorney general
in Montana, our auditor in Montana, our speaker of the Montana House.
This is a very mainstream group of Montanans, leaders back home who are
in support of Judge Gorsuch. Yet my colleagues are rejecting the will
of the American people, rejecting the will of Montanans, filibustering
this nomination, and not even allowing for an up-or-down vote.
The American people deserve a Supreme Court Justice who upholds the
rule of law and will follow the Constitution. The American people
deserve a Supreme Court Justice who doesn't legislate from the bench.
The American people deserve Judge Neil Gorsuch to serve on the U.S.
Thank you, Mr. President.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. TESTER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TESTER. Mr. President, I ask unanimous consent to be allowed to
speak for up to 3 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Internet Privacy Rights
Mr. TESTER. Mr. President, I rise today with a warning about S.J.
Res. 34. This measure undermines the privacy of all Montanans and all
Americans. It is a measure I strongly oppose because it takes the refs
off the field, leaving consumers at the whim of internet service
providers. It allows these companies to sell our data--to sell my
data--and to snoop through your search history and to track the sites
we visit. In other words, it allows internet companies to make a profit
by invading your privacy. It gives them the ability to collect and sell
your physical location, information about your children, your health,
finances, Social Security number, and web browsing history. In fact,
this legislation even extends to apps and your social media accounts.
Following the vote that we had here on this floor, a Republican State
senator from Buffalo, MT, proposed an amendment to our State budget to
push back against this irresponsible resolution. In my home State of
Montana, folks on both sides of the aisle are deeply concerned about
their right to privacy. Now folks you don't even know can have access
to the websites you visit, and they can have this access without your
This is another troubling step that folks in Congress have taken this
year to violate the rights of privacy of law-abiding citizens. We
already have a CIA Director who has advocated for the most intrusive
acts of the PATRIOT Act. We have a Supreme Court nominee before us who
supports the government's ability to reach into the private lives of
law-abiding Americans. Now Congress is rolling out the red carpet for
major corporations to collect and sell our personal online information.
Enough is enough. I am here today to provide a voice for all
Montanans and all Americans who value their right to privacy, who
expect their elected officials to defend civil liberties, to stand up
for constitutional rights, and who do not want private information
collected and shopped around like a used book on Amazon.
When the President decided to sign this resolution last night, he
ushered in the latest significant threat to our right to privacy. Now
it is the responsibility of service providers to protect our personal
I think folks in Montana and across this country have the right to
question the priorities of those who supported this resolution.
Everyone has a fundamental right to privacy, and the government
shouldn't be in the business of violating those individual rights,
especially when doing the bidding of big companies looking to make more
profits at the expense of people's privacy.
I want it to be known in this body that Montanans don't want anyone
snooping around in their private lives, neither the government nor
corporations. It is fundamental to our Montana values. Protecting
online privacy is critical to the integrity of basic, fundamental
freedom, of fundamental civil liberty. I urge all my colleagues to make
their voices heard on this critical issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
(The remarks of Mr. Barrasso pertaining to the introduction of S. 826
are printed in today's Record under “Statements on Introduced Bills
and Joint Resolutions.”)
Mr. BARRASSO. I yield the floor.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the Duke nomination?
Mr. BARRASSO. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Georgia (Mr. Isakson).
The PRESIDING OFFICER (Mr. Cruz). Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 85, nays 14, as follows:
[Rollcall Vote No. 103 Ex.]
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table and the President
will be immediately notified of the Senate's action.