Governors are sent by Him to punish the evildoers and praise the virtuous (1 Peter 2:14).

     
Congressional Record2017/04/07Senate | House | Extensions

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[Pages S2436-S2443]
From the Congressional Record Online through GPO




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

The PRESIDING OFFICER. Under the previous order, the Senate will proceed to executive session to resume consideration of the Gorsuch nomination, which the clerk will report.

The legislative clerk read the nomination of Neil M. Gorsuch, of Colorado, to be an Associate Justice of the Supreme Court of the United States.

The PRESIDING OFFICER. Under the previous order, there will now be 2 hours of debate, equally divided in the usual form.

Mr. McCONNELL. 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. SCHUMER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered. Recognition of the Minority Leader

The Democratic leader is recognized.

Mr. SCHUMER. Madam President, first, let me address the nomination of Judge Gorsuch, which will soon proceed to a final vote over the objection of we Democrats. Even though Democrats had principled reasons to oppose this judge, even though we offered many times to meet with the majority to discuss a new nominee and a way forward, the Republicans chose to break the rules and erase the 60-vote threshold for all judicial nominees. They had many options, and they chose, unfortunately, the nuclear option.

I believe it will make this body a more partisan place, it will make the cooling saucer of the Senate considerably hotter, and I believe it will make the Supreme Court a more partisan place. As a result, America's faith in the integrity of the Court and their trust in the basic impartiality of the law will suffer. Those are serious things for this Republic. Prior to yesterday's cloture vote, I shared my views on this moment at length, and I will let those comments stand in the Record.

As I have said repeatedly over the last week, week and a half, let us go no further down this road. I hope the Republican leader and I can, in the coming months, find a way to build a firewall around the legislative filibuster, which is the most important distinction between the Senate and the House. Without the 60-vote threshold for legislation, the Senate becomes a majoritarian institution like the House, much more subject to the winds of short-term electoral change. No Senator would like to see that happen so let's find a way to further protect the 60-vote rule for legislation.

Since he will soon become the ninth Justice on the Court, I hope Judge Gorsuch has listened to our debate in the Senate, particularly our concerns about the Supreme Court increasingly drifting toward becoming a more pro-corporate Court that favors employers, corporations, and special interests over working America.

We all know there is an anger and sourness in the land because average people aren't getting a fair shake compared to the powerful. In many cases, the Supreme Court is the last resort for everyday Americans who are seeking fairness and justice against forces much larger than themselves. At a time when folks are struggling to stay in the middle class and are struggling as hard as ever to get into the middle class, we need a Justice on the Court who will help swing it back in the direction of the people.

So we are charging Judge Gorsuch to be the independent and fairminded Justice America badly needs. If he is, instead, a Justice for the Federalist Society and the Heritage Foundation, that will spell trouble for America. Syria

Finally, Madam President, on Syria, I salute the professionalism and skill of our Armed Forces that took action last night. The people of Syria have suffered untold horrors and violence at the hands of Bashar al-Assad and his supporters in Tehran and in Putin's Russia. Making sure Assad knows when he commits such despicable atrocities he will pay a price is the right thing to do. However, it is now incumbent on the Trump administration to come up with a coherent strategy and consult with Congress before implementing it.

Madam President, 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.

Mr. BLUNT. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. BLUNT. Madam President, I want to talk about what we are doing today and how important it is, how unique it is in the history of the country. Since 1789, 112 people have served on the Supreme Court. It is hard not to be reminded today, as we vote for the replacement for Justice Scalia, that he served on the Court for 26 years after Ronald Reagan, who appointed him, left the White House and 13 years after President Reagan died. Clearly, the impact of a Supreme Court nomination by the President and confirmation by the Senate is one of those things that has the potential to last long beyond either the service of those in the Senate at the time or beyond those of the President at the time. It is a significant decision.

A Federal Court appointment, generally an appointment for life, is different than an appointment for someone who serves during the tenure of the President. I think almost all of us look at judicial appointments differently than we look at Cabinet appointments and other appointments that are concurrent with the President's term. This is an appointment that lasts as long as the judge is willing to serve and able to serve.

At 49 years old, Judge Gorsuch, who has already been a judge for 10 years, should know whether he likes being a judge. It would appear, and we would hope, he will have a long and healthy life to use his skills on the Court. I think those skills are very obvious in the over 2,000 decisions he has been part of, of the 800 decisions he has written as a circuit judge, the appeals judge above other Federal judges and right below the Supreme Court. [[Page S2437]]

So he is someone who comes to this job understanding the job, with a significant body of work that the Senate has had plenty of time to look at and the President had time to look at before this nomination was made. In those 800 opinions Judge Gorsuch has written, he has been overturned by the Court he will now sit on, the U.S. Supreme Court, exactly 1 time. That is an incredible average of decisionmaking if 1 of 800 times is the only time a court that is the court of appeals for you, the Supreme Court in this case, decides that your decision did not meet their view. Now, that does not mean that your decision did not meet your view of the law, if you are Judge Gorsuch, or your view of the Constitution. Of course, both of those things, after today--his view of the law, his view of how you apply the law--will go to the Court with him.

At the White House event where his nomination was announced, Judge Gorsuch said that a good judge is not always happy with his opinions. Now, what would that mean? I thought that was very reassuring in the sense that his job as a judge is to read the law, to look at the Constitution, and to determine how the facts of the case meet the reality of the law.

One of the things that makes this a great country to live in, a great country to work in, and a great country to take a chance in is the one thing you can rely on, hopefully--the rule of law. The one thing you can rely on, when good lawyers read the law, is that they all understand it to mean the same thing, and you move forward with whatever decision you make on that. What Judge Gorsuch was saying was that personal opinions are not always satisfied by reading the law. What he also, I think, reflects is a view that the law is what the law was intended to mean at the time.

There are ways to change the law. If the country has changed, if the world has changed, if circumstances have changed, there are ways to change the law, and that is our job. That is not the job of any Federal judges anywhere, including on the Supreme Court. Their job is to determine what the law was intended to mean when it was written, and their job is to determine what the Constitution was intended to mean when it was written. Everything the Constitution intended was not what we would want to live with today, and that is why we have that long list of amendments, starting with the Bill of Rights.

Even immediately, the people who wrote the Constitution said that we have to add some things to this because this does not mean what we really want it to mean as it is applied. So you get the Bill of Rights. Yet that is not the job of the Court. It is the job of the Congress to pass laws, the President to do his job of vetoing and sending those laws back or of signing them into law. The Court's job is what Judge Gorsuch understands it to be.

He said in his hearings: I have one client, and that client is the law. That client is not either party appearing before the Court. That client is not the government. That client is the law. I think he also said that judges are not politicians in robes.

We have a job to do that is different than the job of the Court, and I think, as we send Judge Gorsuch to the Court today--to be the 113th person in the history of the country to serve on the Court--we send a person who has an understanding of what a judge should do. Most Americans, when they think about what the Court is supposed to do, would clearly understand that is the job of the Court. There are other jobs to be done, and they are to be done in other places. I think he will be a great addition to the Court with his 10 years of experience as a judge and as the judge that other Federal judges' cases are appealed to. What great training he has had to get ready for the Court.

Then, of course, to get this job done, we had to return to the traditional standard that has always been the standard in the country, until the last few years, as to how Presidential nominations are dealt with. It is easy to confuse, I think, the unique role of the Senate in its having some barriers that the House does not have with regard to advancing legislation. Since, basically, 1789, that has been applied to legislation. The Senate has always seen its job as wanting to be sure the minority is heard before we move forward. Yet, starting in 1789, there was never a supermajority for Presidential nominations, whether it was to the Cabinet or the Court.

It is impossible to find, even before 1968, any case in which the Senate came together and said: We are officially going to decide that we are not going to have a vote on this judge. Now, not every judge got a vote, but when every judge got a vote, a majority of Senators determined whether that judge would go on the Court or not. Two members of the Court today did not get 60 votes. Clarence Thomas got 52 votes, and I think Judge Alito got 58 votes. Two members did not get 60 votes, but nobody thought they needed 60 votes because that had never been part of the structure of how judges got on the Court.

I think what we have done this week is return the Senate to, essentially, the practice on Presidential nominees that for 214 years was the way nominees were always dealt with.

In 2013, the Senate was controlled by our friends on the other side of the aisle. With the roughly 1,250 to 1,300 Presidential nominations, they decided that every nomination that was available to them--for every judge where there was a vacancy, for every person where the President might have had a vacancy to fill--would be determined by a simple majority. From that moment on, everybody, I think, should not have been surprised, when we eventually had a Supreme Court vacancy-- and this is the first one since that happened--that whoever was in charge would extend that same majority to the Supreme Court. Now all Presidential nominees are back to where they had been for 214 years.

I heard the minority leader--I heard my friend Mr. Schumer--talk about the importance of our recommitting ourselves to the protections for the minority in passing legislation. I think we can do that. Frankly, this exercise of refreshing our minds as to how legislation has always been handled in that way, I believe, has probably created a greater commitment to that--to the legislative supermajority to move forward with debate--than we have had for a while.

I think the leader of our friends on the other side and certainly the leader on our side have both said nobody is willing to back down on the challenges the Senate faces when we are required to come together to get things done.

The Senate is unique. Essentially, it takes 6 years for every Senator to run for election. After some new sense of the direction of the country occurs, voters basically have to say again and again and maybe a third time: No, we really want to change the way the country has run up until now. Quick decisions are not necessarily the best decisions in a democracy, and in our democracy, this institution--the Senate--is the legislative institution that determines that there is a necessary either coming together of the people who are here at the time or for voters to say at another time: No, you did not get it the first time, and we are sending different people because we really want to make this change.

I think the vote today and the traditions of the country send that 113th person into the history of America to serve a lifetime term on the Court. I am confident the President's nominee and the Senate's decision to send that nominee to the Court sends a good person to the Court with a good understanding of what the Supreme Court of the United States is supposed to be. His job is not to look at the law and try to determine what it should have said or to look at the Constitution and determine what it should have said but rather to look at the law and the Constitution and determine what they say.

Judge Gorsuch, as well as any person who has ever appeared before the Senate to stand available for that job, understands that principle, will take that principle to the Court, will work with his colleagues, as he has on the Tenth Circuit, in order to rally around what the law says and what people can rely on in a country where our freedoms should be secure and where we should know that the courts are there to determine what is right in any given case, not what the judges think would be their ideas of what would be right.

I look forward to the vote later this morning and to seeing Judge Gorsuch be sworn in as a member of the Court sometime in the very near future. [[Page S2438]]

I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The senior assistant legislative clerk proceeded to call the roll.

Mr. McCAIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCAIN. Madam President, I rise today in support of the nomination and the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court. I do so with mixed emotions because I believe that the actions taken in order to achieve this position will have lasting effects that are unfortunate on this body as far as comity is concerned, but also the confirmation of future judges of the Supreme Court by 51 votes. Rather than go back through the history of what former Majority Leader Reid did in regard to judges and what we are doing now, I am very concerned about the future which will then, with only a 51-vote majority required, lead to polarization of the nominees as far as their philosophies are concerned when the majority does not have to consider the concerns and the votes of the minority.

With my focus on Democrats' unprecedented filibuster of Judge Gorsuch's nomination to the U.S. Supreme Court and the Senate's regrettable action yesterday to invoke the nuclear option on Supreme Court nominees, I have been remiss in not taking the time to describe for the American people why I support strongly and without qualification confirming Judge Gorsuch to serve as an Associate Justice of the U.S. Supreme Court.

Why I do so is very simple. Rarely has this body seen a nominee to the Supreme Court so well qualified, so skilled, with such command of constitutional jurisprudence, with such an established record of independence and such judicial temperament as Judge Gorsuch. It is, in fact, exactly for these very reasons that this very body unanimously voted in 2006 to confirm this very judge--this same judge--to the U.S. Court of Appeals for the Tenth Circuit. Yet, now, the other side would have the American people believe that this very same judge lies firmly outside the mainstream and is, therefore, otherwise unacceptable to serve in the Nation's highest Court. Even by the standards of this body, this sophistry is breathtaking.

Let me take a moment to join the chorus of support of my colleagues and recount why Judge Gorsuch is so deserving of this body's support for confirmation to the Supreme Court.

First and foremost, Judge Gorsuch is a world-class judge. On the U.S. Appellate Court for the Tenth Circuit, Judge Gorsuch has maintained the lowest rating of other judges dissenting from his opinion. Indeed, according to the Congressional Research Service, only 1.5 percent of Judge Gorsuch's majority opinions were accompanied by a dissent--the lowest of any judge in that study. Notably, the U.S. Supreme Court has never overruled any of Judge Gorsuch's opinions--not a single one. Furthermore, in the more than 2,700 cases Judge Gorsuch participated in, 97 percent of them were decided unanimously, and Judge Gorsuch was in the majority 99 percent of the time. These are facts. In addition, the U.S. Supreme Court overruled an opinion where Judge Gorsuch sat on a panel only one time.

While serving on that court, Judge Gorsuch built an exceptional reputation for his fair-minded, articulate, and sharp intellect. Stanford Professor Michael McConnell, who served with Judge Gorsuch on the Tenth Circuit, characterized Judge Gorsuch as “an independent thinker, never a party liner” and “one of the best writers in the judiciary today. . . . [H]e sets forth all positions fairly and gives real reasons--not just conclusions--for siding with one and rejecting the other.”

Second, Judge Gorsuch has one of the most impressive professional and academic backgrounds this body has ever seen. He graduated from Columbia cum laude and Phi Beta Kappa and cum laude from Harvard Law School. He also obtained a doctorate degree in philosophy from Oxford University and served as a Truman and Marshall Scholar. Additionally, he served for U.S. Circuit Court Judge David Sentelle, Supreme Court Justices Byron White and Anthony Kennedy. Judge Gorsuch also served as Principal Deputy Assistant Attorney General at the Department of Justice before serving as a judge on the U.S. Court of Appeals for the Tenth Circuit.

For all of these achievements, Judge Gorsuch has earned the highest possible rating from a group Minority Leader Schumer calls the “gold standard” for evaluating judicial nominations.

Finally, Judge Gorsuch has established himself as an exceptional nominee. Indeed, Judge Gorsuch's appearance before the Senate Judiciary Committee was extraordinary. In the course of the three rounds of questioning by that committee, each Member had the opportunity to quiz Judge Gorsuch for over an hour each on just about every aspect of constitutional law. In answering about 1,200 questions from the panel, he demonstrated almost peerless mastery over that field.

Furthermore, Judge Gorsuch's nomination, with the help of my friend and former member of this body Kelly Ayotte, was exemplary in its transparency. Before his hearing, and in response to the Judiciary Committee's requests, Judge Gorsuch provided over 70 pages of written answers about his personal record and over 75,000 pages of documents, including speeches, case briefs, and opinions--which, by the way, makes you wonder why he wanted the job. Anyway, White House archives and the Department of Justice similarly produced over 180,000 pages of documents related to Judge Gorsuch's time at the DOJ. The Department of Justice, moreover, provided access to reams of documents that would ordinarily be subject to claims of privilege. However, in the spirit of cooperation and in the hope of truly bipartisan consideration, the Department of Justice provided my friends on the other side access to these records anyway.

Additionally, in response to almost 300 separate questions posed by Democrats on the committee, Judge Gorsuch provided another 70 pages of written responses, and did so within a week of receiving them, to give my friends sufficient time to review the answers before the committee voted for consideration of his nomination.

Despite all of that I just said--despite everything that I just said, my friends on the other side would have the American people believe that Judge Gorsuch lies firmly out of the mainstream and hopelessly obfuscated his judicial philosophy.

My friends, when you do that with an individual that qualified, you lose credibility.

For all of the reasons I just went through, that is simply untrue. Moreover, when many of my friends on the other side had the opportunity to question Judge Gorsuch over the 20 hours they had with him during his confirmation hearing, they contented themselves with asking Judge Gorsuch for his personal opinions on issues that could come before him if he is confirmed to the Court. In addition, they passed hypotheticals they knew he, for ethical and prudential reasons, could not possibly be expected to answer.

Here is some straight talk. The real reason most of my friends on the other side opposed Judge Gorsuch's confirmation is that President Trump nominated him--because their base of support and related special interests on the far left have been upset about President Trump's election in November. The fact is that if most of my friends on the other side of the aisle are opposed to this nominee, they will oppose any nominee put forward by this President, or any Republican President, for that matter.

The record is clear. Judge Gorsuch's qualifications, knowledge, skill, judicial temperament, and record of independence are truly exceptional. For these reasons, he has earned my strong and unqualified support for his confirmation to the Nation's highest Court.

Could I just make one additional comment, and I know my friend from Utah is waiting. When President Obama and Presidents before him were elected from both parties, it was pretty much the standard procedure here in the U.S. Senate to give the incoming President the benefit of the doubt. In other words, the American people, by electing a President of the United States, had also basically endorsed his responsibility and his right to nominate judges to the courts. That is just [[Page S2439]] sort of a given, because the American people spoke in their selection of the President of the United States, taking into consideration those responsibilities the President would have. So, therefore, for those reasons, I voted for most of President Obama's nominees, as I did most of President Clinton's nominees. Now we are in a position where we are so polarized that even a man of the qualifications of Judge Gorsuch is now opposed by our friends on the other side of the aisle.

I say to my friends on the other side of the aisle, and I say to my friends on this side of the aisle: That is not the way the Senate was designed to work. The Senate was designed for us to communicate, for us to work together, for us to understand the results and repercussions of a free and fair election. It is about time we sat down together and tried to do some things for the American people in a bipartisan fashion. This near-hysterical opposition that I see from my friends on the other side of the aisle does not bode well for what we know we need to do.

Madam President, I recognize the presence of the distinguished Senator from Utah, and I say “distinguished” because both he and I are of advanced age.

I yield the floor.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Madam President, I really appreciate my colleague for his comments. He is one of the great Senators here, and we all pay attention to what he has to say, especially on foreign policy and military affairs, but also on so many other things as well. People ought to be listening to what he is saying with regard to this judgeship. I have great respect for Senator McCain and always will. He is one of the truly great Senators in this body. I just wish my colleagues on the other side would pay a little more attention to what he is having to say here today. So I thank the Senator. Nomination of Heather Wilson

Madam President, I rise today in strong support of the confirmation of Dr. Heather Wilson to be the 24th Secretary of the Air Force.

I have had the privilege of knowing Dr. Wilson since her election to Congress, where she distinguished herself as a member of the House Intelligence Committee. In my interactions with Dr. Wilson in the Intelligence Committee, it quickly became apparent that she is a person of great intellect and exceptional character. But this should come as no surprise since she has always achieved a level of excellence in each of her endeavors.

Dr. Wilson knew success from an early age. She made history as one of the first female graduates of the Air Force Academy. At the academy, she thrived as a student, eventually earning a Rhodes scholarship to attend Oxford University, where she earned a Ph.D. in international relations.

Dr. Wilson then wrote a well-received book titled “International Law and the Use of Force by National Liberation Movements.” As a lawyer, I was particularly impressed by Dr. Wilson's in-depth analysis of international law. What is all the more impressive is that the book was published as she was serving as Director of Defense Policy and Arms Control for the National Security Council.

Dr. Wilson's commitment to national security was evident when she served in the House of Representatives from 1998 to 2009. When she left the House after more than a decade of service, Congress' loss was South Dakota's gain. In 2013, she became the president of the South Dakota School of Mines and Technology. There, she showed extraordinary skill in leading a large institution.

In sum, Dr. Heather Wilson is a person of great intellect, strong management skills, and superlative character. I believe she will be an outstanding Secretary of the Air Force, which is why I strongly encourage my colleagues to confirm her without delay.

Confirming Dr. Wilson with dispatch is necessary to address the many challenges currently facing our military. After all, there are fundamental issues regarding the readiness of our armed services-- especially the Air Force--which must be confronted and resolved.

Although the lack of proper investment and training is evident in each of the military departments, I am especially concerned about the Air Force because of its unique missions and responsibilities. Two words describe each set of problems facing our Air Force: “too few”-- too few aircraft; too few personnel, including pilots; too few flight training hours.

Regarding the shortage of aircraft, as the Air Force Vice Chief of Staff recently testified before the SASC Readiness Subcommittee, less than 50 percent of the services' aircraft are ready to perform all of the combat missions to which they are assigned. The average age of the service's fighter aircraft is 27 years old. Many other aircraft, including the B-52 and the KC-135, have decades of wear and tear. Even more alarming, the aging aircraft of the 1950s and 1960s will be retained in the force for the foreseeable future.

The current number of 55 fighter squadrons falls short of the number needed to fulfill our warfighters' requirements. As Dr. Wilson testified during her confirmation hearing, “the Air Force is not fully ready to fight against a near-peer competitor,” such as China or Russia--too few aircraft, indeed.

Of course, the number of aircraft is just one of the multiple issues facing the Air Force. We also have too few personnel, including pilots. Our aircraft--no matter how advanced--cannot fly without experienced and highly trained maintenance personnel, and we need 3,400 more before the service can effectively accomplish its mission.

We are also running short of the men and women who fly these aircraft. In recent testimony before the Airland Subcommittee, senior Air Force officers testified that the service had a deficit of 1,555 pilots. Of that number, we require more than 750 additional fighter pilots. Further, there is concern that those pilots who remain are receiving very few flight training hours--much less than needed.

These are enormous challenges. But despite the Herculean task in front of us, I have no doubt Dr. Wilson will develop the strategies and policies required to restore our Air Force to a full state of readiness. I hope the Senate will speed the confirmation of Dr. Wilson to become the 24th Secretary of Air Force.

Madam President, I am very concerned with the way Neil Gorsuch has been treated. We could not have a finer person, a more ready person, a more knowledgeable person, a more legal expert-type of a person than Neil Gorsuch for this very, very important calling on the Supreme Court.

It is amazing to me how some of my colleagues on the other side have ignored all of the facts, all of the evidence, all of the experience, all of the goodness of this man. I hope they will not vote against him, but it looks to me as though many of them are going to vote against him. If you are voting against Neil Gorsuch, who can you support? Are you just going to support people who do your bidding? Or are you going to support people who really can do the Nation's bidding, do the things that this country needs?

Neil Gorsuch is that type of a person. He has that kind of an ability. He has that kind of experience. He is a terrific human being. Whether you agree with him or disagree with him, you walk away saying: “Well, he certainly makes a lot of good points.” You walk away saying: I like that guy. He is somebody I can work with. He is somebody that really loves this country. He is somebody who sets an exemplary example in every way.

I have to say that, in my years of service here, I have seen a number of Supreme Court nominations, and I have seen a number of people put on the Court, and they have all been exceptional people. But there is none of them who exceeds Neil Gorsuch. He is that good. It is kind of a shame that we can't, in a bipartisan way, support this selection.

I suspect that there is more to it than Judge Gorsuch. I think our colleagues on the other side know that this early in President Trump's reign as President of the United States, he might very well have another one, two, or even three or four, nominees to the Court. I don't blame my colleagues on the other side for being concerned, because-- let's face it--he is unlikely to put people on the Court with whom they agree.

On the other hand, he is very likely to put people on the Court who are [[Page S2440]] great lawyers, who have had great experience, who will bring great distinction to the Court, and who will, without telling us how they are going to vote and how they are going to rule, do the job that we all count on the Supreme Court doing.

The Supreme Court, to me, is a sacred institution. We have had great Justices on both sides--on all sides, as a matter of fact. We have had great Democrat Justices. We have had great Republican Justices. No one knows how great the nominee is going to be until that nominee actually serves on the Court and does the job that is so difficult to do as a member of the U.S. Supreme Court. I have every confidence Neil Gorsuch will be one of the all-time great Justices for that Court. He deserves confirmation. He deserves overwhelming confirmation. If we weren't in such a disputative mood around here, if we didn't have so much problems with each other, he would be an easy person to support.

So I hope we can put our politics aside and look at the man, look at his experience, look at his ability, look at his genius, look at his decency, and look at the fact that he agreed with his colleagues on 99 percent of the cases tried before the Tenth Circuit Court of Appeals-- and most of those colleagues were Democrats. Look at these types of things, and say: My gosh, what are we about here? Has it just become a politicized exercise every time we have a Supreme Court nomination, one way or the other?

I have to admit that it looked as though Hillary Clinton was going to win. Senator McConnell decided that we should not put Merrick Garland on during a Presidential election, which I think was a good decision. It was a sincere decision. It looked as though, if Hillary Clinton was going to win, she might very well put a much more liberal judge on the Court than Merrick Garland. The fact of the matter is, Senator McConnell knew the odds were against Republicans winning the Presidency this last election.

To some, it was kind of miraculous for Donald Trump to win. It wasn't miraculous to me, because last May Donald Trump called me and asked me to support him. I said: You don't want me. I said: I am the kiss of death.

He laughed and he said: What do you mean the kiss of death?

Well, I supported Jeb Bush, and he went down to defeat. Then I supported Marco Rubio, my colleague in the Senate, and he had to withdraw. So I am the kiss of death.

He said: I want you, anyway.

So I became one of two Senators who supported this now-President of the United States and was gratified to see him win that election. I thought he could. Deep down, I knew there was a great chance because I was going all over the country and I found that people were not willing to say whom they were for. I knew darn well they were for Trump. They just didn't want to admit it--especially Democrats. But he got an overwhelming number of blue-collar Democrats--I understand them; I learned a trade as a young man--who voted for him.

When I say I learned a trade, I was born not with the wealth of some of our colleagues. I was born in what some people would call poverty today. We didn't think we were poverty-stricken. My parents were very solid, decent, honorable people, but they were poor--frankly, poor in the sense of monetary value. But they were good, honest, decent people, and I feel very blessed to have been raised by them.

All I can say is this. To allow the selection of the Supreme Court nominee to come down to a wide vote against that nominee with the qualities of Neil Gorsuch--if that is what my colleagues on the other side, in their wisdom, decide to do, I think it is a disgrace. I think it flies in the face of years and years of people selected for the Court. Now, we all can differ. Everybody has that right. All I can say is I just wish we were more together as a body.

I have great respect for my Democratic colleagues, as well as my Republican colleagues. This is the greatest deliberative body in the world. Despite our difficulties and our differences, we do a lot of really good things for this country. And we do it at its best in a bipartisan way when we can.

Madam President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The senior assistant legislative clerk proceeded to call the roll.

Mr. CORNYN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered. Syria

Mr. CORNYN. Madam President, I would like to start briefly by mentioning the horrific chemical attack on innocent civilians in Syria earlier this week. It was nothing short of evil. I stand shoulder to shoulder with the administration in condemning this brutality. Again, we see Bashar al-Assad crossing a line--a line drawn and then ignored by the Obama administration.

The United States and the world community simply can't stand idly while Syria continues crimes against humanity, again, under Russian protection. That is why last night the administration responded quickly and proportionally. I commend the President and his national security team for acting decisively and sending a clear message to Assad and our allies. I am sure it was a message that was not missed by the leaders of the Iranian Government, the Russian Federation, and North Korea.

I agree with Ambassador Haley that Russia's obstructionism at the U.N. has enabled Assad and prevented international action, resulting in at least 400,000 Syrians dead in this civil war and millions of others displaced as refugees, not only internally but externally as well. Going forward, I stand ready to work with the President and his administration on a unified strategy to defeat Assad's barbarism and work toward greater stability in Syria and throughout the region.

Madam President, on another subject, as we all know, here in about 20 minutes, we will start the vote to confirm Neil Gorsuch as the next Justice of the Supreme Court. Over the last few weeks, our colleagues and I have--and the entire country, as a matter of fact--have gotten to know Judge Neil Gorsuch not only as a judge but as a man. He is a good man with superb qualifications and incredible integrity.

A Colorado native, Judge Gorsuch has served on the Denver-based Tenth Circuit Court of Appeals for about 10 years. He is known for his sharp intellect, his brilliant writing, and his faithful interpretation of the Constitution and laws passed by Congress. He is, in short, a distinguished jurist with an impeccable legal and academic record.

In addition to his decade on the bench, his professional experience includes years practicing in a private law firm, prestigious clerkships, including the Supreme Court of the United States under two separate Justices, and service in the Department of Justice.

It is simply undeniable that Judge Gorsuch is a qualified, high- caliber nominee. I have no doubt that he will serve our Nation well on the Supreme Court. But of course, in spite of all of this--his sterling background, his proven character, his broad bipartisan support--we have seen an unprecedented attack on this good judge and this good man in the form of a partisan political filibuster, the first ever lodged against a Supreme Court nominee. Yesterday, our Democratic colleagues would have prevented the up-or-down vote we are getting ready to have here starting at 11:30. For what? Well, it certainly was not because of the judge, his character, his qualifications, or his background and experience; it was merely because so many of our colleagues across the aisle simply have not gotten over the fact that Donald Trump won the Presidential election and Hillary Clinton did not.

Before Judge Gorsuch was nominated, the minority leader, our colleague Senator Schumer, said they needed a “mainstream nominee.” After President Trump nominated a mainstream nominee, Democrats then looked for other ways to make him out to be some sort of extremist or radical. But they failed because there is simply no evidence to justify those kinds of characterizations.

For one, judicial experts spanning the political spectrum, including President Obama's former Solicitor General, voiced their support.

Second, they had to deal with the facts of his record. During his time on the Tenth Circuit, Judge Gorsuch was [[Page S2441]] involved in thousands of decisions--2,700 to be exact. The vast majority of those panel decisions made by at least three judges-- sometimes more on the panel--97 percent of them were unanimous. So you would basically have to slander the reputations of all of those other judges with whom the judge agreed to claim that he is some sort of out- of-the-mainstream extremist. That is truly an impressive record for a judge in a multi-judge court like the Denver-based Tenth Circuit Court of Appeals. It simply rebuts any picture our friends across the aisle have attempted to paint of him as some kind of extremist or radical.

I would ask our friends this question: If Judge Gorsuch does not fit the bill for a qualified, mainstream nominee, then is there any nominee from this President or any other Republican President who will meet the Democrat's arbitrary, flimsy standard?

Time and time again, our friends across the aisle failed to make any intellectually honest argument against this nominee. Still, they are determined to block him. That brought us to the cloture vote yesterday and the last-ditch effort to block Judge Gorsuch. They did not want to even give him the up-or-down vote we are getting ready to have here in a few minutes. Instead, they wanted to kill his nomination by simply refusing an up-or-down vote and moving his nomination forward.

In our Nation's entire history, before yesterday there had only been four cloture votes for Supreme Court nominees--only four. None of them had been cast as a partisan filibuster determined to try to block the nomination--until yesterday.

Still, the minority leader, cheered on by the extreme groups on the left, barreled this Chamber to the first-ever partisan filibuster of a Supreme Court nominee, following a regrettable and recent tradition of Democratic obstructionism when it came to Republican judicial nominees.

Now that there is a Republican White House, that is what they want to do again--obstruct. This is a wholly concocted method the Democrats started back when George W. Bush was President to deny a Republican President an opportunity to nominate the person of his choice, confirmed by a majority vote in the Senate.

Before 2000, before Senator Schumer and a number of liberal legal activists decided they wanted to raise the threshold for confirmation to 60 votes, instead of what the Constitution requires, which is a majority vote. No one would ever have dreamed that the Constitution would have allowed for a 60-vote requirement, rather than an up-or-down vote.

It is not that our friends across the aisle truly oppose Judge Gorsuch. The fact is, they oppose President Trump. That is what this is all about.

This vote isn't actually about President Trump. It is about the man we have all learned so much about, Judge Neil Gorsuch, who has a record of faithfully interpreting the law, a man who has proved himself to possess an independent judicial mind, who simply follows the law wherever it may lead. He is someone who has won bipartisan approval.

This vote is about delivering our promise. The Republicans have promised to let the American people's voice be heard in deciding who they would choose as President to select the next Supreme Court Justice. The American people did that. They chose President Trump, and he chose Judge Gorsuch.

If Hillary Clinton had been elected President today, I have no doubt that her choice for the Supreme Court would be confirmed by a majority vote in the same U.S. Senate.

Now it is time that we deliver on the promise we made to the American people and confirm Judge Neil Gorsuch to the Supreme Court.

I yield the floor.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. DURBIN. Madam President, I hadn't planned to speak this morning, but when my friend from Texas decided to give his version of history, I thought: Well, I ought to give my version. It is slightly different.

Justice Antonin Scalia passed away in February of last year. President Barack Obama, the President of the United States of America, had a constitutional responsibility under article II, section 2 to nominate a person to fill the vacancy on the Supreme Court, as every other President had. And he did.

He came up with the name Merrick Garland, the Chief Judge on the DC Circuit Court of Appeals, a man who is widely respected, judged unanimously “well qualified” by the American Bar Association. President Obama submitted his name to this Congress, to the Senate, a Senate that has a Republican majority, led by Senator Mitch McConnell of Kentucky.

Senator McConnell and the Republican Senators did something that had never happened in the history of this Chamber--not once. They denied President Obama's nominee the opportunity for a hearing and a vote. In fact, Senator McConnell went further and said: I won't even meet with the man.

It had never happened before.

You say to yourself: Well, come on. This isn't beanbag. You are in Washington. This is major league politics. This sort of thing must happen all the time. Never.

In fact, if you go back not that far in history, to 1988, in the last year of President Ronald Reagan's Presidency--his fourth year of his second term, some call it the lameduck year--there was a vacancy on the Supreme Court.

Republican President Ronald Reagan sent the name Anthony Kennedy to a Democratically controlled Senate, which had the power to do the same thing Senator McConnell did: Deny a hearing, deny a vote.

Well, what did the Democrats do? We gave Justice Kennedy a hearing, a vote, and sent him to fill the vacancy on the Supreme Court.

Under Senator McConnell, the Republicans refused Merrick Garland the same opportunity, and they said to President Obama: You are in your fourth year. You are a lameduck. Your choice for the Supreme Court really doesn't count.

But there was more to it. Really, the strategy was based on the premise and possibility that a Republican would be elected in this last November election, and if so, that Republican President could fill the vacancy on the Supreme Court.

Well, that is exactly what happened. The election of Donald Trump gave him the opportunity to fill the vacancy of Antonin Scalia, a vacancy that should have been filled, I believe, by Merrick Garland, President Obama's nominee.

That is what led up to the vote yesterday, but there was more.

Where did the name Neil Gorsuch come from? It is true that he served on the Tenth Circuit for 10 years. He had been approved by the Senate. He certainly had a strong resume. But how did he get on the finalist list?

Well, most of the time you never know. Presidents don't always disclose how they come up with names. In this case, it was very open because, during the course of his campaign, Donald Trump, the candidate, listed 21 names of people whom he would appoint to the U.S. Supreme Court. On that list of names, Neil Gorsuch of Colorado.

How did that name make the list? Well, we know because President Trump told us. He was the choice of the Federalist Society and the Heritage Foundation. If you know these two organizations, you know they are Republican advocacy groups, very conservative groups, and they were going to pick the nominees who were approved by them and submit them to Donald Trump, which he then publicized. We know that because, at the end of the day, Donald Trump thanked the Federalist Society for nominating Judge Gorsuch. That is how the name came to us.

I sat through the hearings as a member of the Senate Judiciary Committee, and I will tell you that most Supreme Court nominees don't go out of their way to volunteer information. They try to be respectful, but they don't try to say much of anything. They don't want to get in trouble either as judges or as candidates to be a Justice on the U.S. Supreme Court. So there were gaps in his testimony and troubling questions raised about him.

I don't want to dwell on him so much as I want to dwell on this process. What happened yesterday on the floor of the Senate was unfortunate. Since I have been in the Senate, the last four Justices on the Supreme Court--two [[Page S2442]] nominated by President Obama, Sonia Sotomayor and Elena Kagan, and two nominated by George W. Bush, John Roberts as well as Justice Alito--all received 60 votes during the course of their consideration. That is not, as the Senator from Texas alluded, written in the law per se, but it was written--until yesterday--in the rules of the Senate. You needed 60 votes to overcome the possibility of a filibuster and to file cloture.

Well, that rule was changed yesterday to a simple majority. That is an unfortunate occurrence. A lifetime appointment to the highest Court in the land should be more than just a bare majority vote, as far as I am concerned, and, historically, with very few exceptions, that has been the case.

That is not the case here. We found yesterday that the Republicans voted for a change in rules, which was under the power of the majority to do--a change in the rules, which lowered the standard for this judge for the first time officially in at least a century to a mere majority vote. That is what he received, and that is what brings his nomination to the floor today to be considered for the Supreme Court.

At the end of yesterday's session, when the rule was changed, some Senators were engaged in high fives on the other side of the aisle. I am not sure why. I don't think it was a time for any winning celebration. I think it was an unfortunate moment.

The question is, Where will we go from here? We know what the outcome of the vote will be on Judge Gorsuch this afternoon. That is preordained by the rule struggles we went through yesterday. But where does the Senate go? Where should we go? Well, I hope we will have the good sense to restore the 60-vote margin when it comes to future Supreme Court nominees.

It may be that Justice Gorsuch has an asterisk by his name as the only one to have been officially approved with cloture set at a majority vote, but I am hoping, even if he reaches the Supreme Court, that will not hold him back from serving this Nation well. I know he has told us over and over again that is exactly what he wants to do.

But I hope the Senate will restore the standard of 60 votes necessary for the Supreme Court. I really believe serving as a Supreme Court Justice is an extraordinary opportunity for a person to serve this Nation, an extraordinary responsibility, and we should take it very seriously. It shouldn't be a majority decision; it should be a 60-vote decision. I hope we get back to that very soon.

Secondly, I hope the Senate will not be derailed by this Supreme Court nomination having happened so early in the session. This is a great institution. I have given a big part of my life to it and look forward to serving more in the Senate--not as long as the Senator from Iowa, who I think has retired the trophy in his State for his service in the Senate--but I do believe this is a great institution.

An example is that the Senator from Iowa and I are of opposite political faiths. He and I have worked together on some important issues in the past, and we want to work together in the future. I think we can. If we can restore what you and I remember as the glory days of this body, it is in the best interest of this Nation.

So beyond this Supreme Court nomination, let's hope we can all come together to make that happen.

I see my colleagues filing in. I know they are anxious to vote. I am not going to hold the Chamber. I am just going to say that I thank the Presiding Officer and my friend, the chairman of the Senate Judiciary Committee. I look forward to the vote.

I yield the floor.

The PRESIDING OFFICER. The Senator from Iowa.

Mr. GRASSLEY. Madam President, we are about to vote on the nomination of Judge Gorsuch, so I would like to say to my colleagues why I am so pleased that we will soon be referring to him as “Justice Gorsuch.”

I opened our Judiciary Committee hearing with this: One of Justice Scalia's best opinions begins with this declaration: it is the “proud boast of our democracy that we have a government of laws and not of men. . . . Without a secure structure of separated powers, our Bill of Rights would be worthless.”

The separation of powers in our Constitution is a guardian of our liberty. Judge Gorsuch understands that. His deep understanding of the separation of powers enlivens his opinions.

By faithfully enforcing the boundaries among the branches of government and the power of the Federal Government in our lives, this Justice will ensure that the law protects our liberties.

Here is the other thing that is important about a judge who respects the separation of powers: We know he will be independent. He told us that he is his own man, that no person speaks for him. He is not beholden to the President who appointed him. His testimony shows that he is not beholden to us in the Congress either. He wouldn't compromise his independence to win confirmation votes. He passed the test.

This is a man of integrity, and his qualifications for the bench are exceptional. You know the story: bachelor's from Columbia University, Harvard Law School, doctorate from Oxford University, partnership at a prestigious law firm, and high-level Justice Department service for the people of our country, but most importantly, a decade-long record of faithfully applying the law on the Federal bench in 2,700 cases as a member of the Tenth Circuit Court of Appeals.

Let me sum up this way: This brilliant, honest, humble man is a judge's judge, and he will make a superb Justice.

I yield the floor.

Madam 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. DURBIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The VICE PRESIDENT. Without objection, it is so ordered.

Mr. DURBIN. I yield back the remainder of our time.

I withhold that request until the arrival of the leader.

I suggest the absence of a quorum.

The VICE PRESIDENT. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. McCONNELL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The VICE PRESIDENT. Without objection, it is so ordered.

Mr. DURBIN. Mr. President, I yield back the remainder of time on this side.

The VICE PRESIDENT. Without objection, all time is yielded back.

The question is, Will the Senate advise and consent to the Gorsuch nomination?

Mr. McCONNELL. I ask for the yeas and nays.

The VICE PRESIDENT. Is there a sufficient second?

There is a sufficient second.

The clerk will call the roll.

The legislative clerk called the roll.

Mr. CORNYN. The following Senator is necessarily absent: the Senator from Georgia (Mr. Isakson).

Further, if present and voting, the Senator from Georgia (Mr. Isakson) would have voted “yea.”

The VICE PRESIDENT. As a reminder, expressions of approval or disapproval are not permitted from the gallery.

Are there any other Senators in the Chamber desiring to vote or change their vote?

The result was announced--yeas 54, nays 45, as follows: [Rollcall Vote No. 111 Ex.] YEAS--54 Alexander Barrasso Blunt Boozman Burr Capito Cassidy Cochran Collins Corker Cornyn Cotton Crapo Cruz Daines Donnelly Enzi Ernst Fischer Flake Gardner Graham Grassley Hatch Heitkamp Heller Hoeven Inhofe Johnson Kennedy Lankford Lee Manchin McCain McConnell Moran Murkowski Paul Perdue Portman Risch Roberts Rounds Rubio Sasse Scott Shelby Strange Sullivan Thune Tillis Toomey Wicker Young NAYS--45 Baldwin Bennet Blumenthal Booker Brown Cantwell Cardin Carper Casey Coons Cortez Masto Duckworth Durbin Feinstein Franken Gillibrand Harris Hassan Heinrich Hirono Kaine King Klobuchar Leahy [[Page S2443]] Markey McCaskill Menendez Merkley Murphy Murray Nelson Peters Reed Sanders Schatz Schumer Shaheen Stabenow Tester Udall Van Hollen Warner Warren Whitehouse Wyden NOT VOTING--1 Isakson

The nomination was confirmed.

The VICE PRESIDENT. The majority leader.

Mr. McCONNELL. Mr. President, I move to reconsider the vote, and I move to table the motion to reconsider.

The VICE PRESIDENT. The question is on agreeing to the motion.

The motion was agreed to. ____________________



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