04.06.17

Full Statement Of Senator Patrick Leahy On The Nomination Of Judge Neil Gorsuch To The Supreme Court Of The United States

Just two days ago, the Judiciary Committee reported the nomination of Judge Neil Gorsuch by the narrowest margin, a party-line vote.  Yet the Majority Leader has already filed cloture to cut off debate on this nominee.  And he has promised to use whatever tactic is necessary to ensure this nominee is confirmed, no matter the concerns of the minority or millions of other Americans.  Today is just the seventy-fifth day of the Trump administration.  Only 75 days of having Republican control of both the White House and the Congress, and the Majority Leader has promised to vitiate the historic rights of the minority in this institution.  He is prepared to abdicate the Senate’s constitutional duty to serve as a check on the president and our responsibility to protect the independence of the Federal judiciary, just to install on the Supreme Court a nominee selected by far right special interest groups – all in the service of Donald Trump’s agenda.

Senate Republicans seek to justify their tactics by claiming that Democrats would do no different were the shoe on the other foot.  They are free to make that argument, but it is wrong.  There is one claim in particular that I need to address.  Some Republicans have asserted that if President Bush had made a Supreme Court nomination in 2008, the final year of his term, Democrats would have pocket filibustered that nomination the same way that Senate Republicans did to Chief Judge Merrick Garland.  Well, I was the Chairman of the Judiciary Committee during that time, and I can assure them that they are wrong.  Democrats did not invent an election year exception to the Constitution.  Look no further than when a Democratic-led Senate confirmed Justice Kennedy during a presidential election year.

If President Bush had made a Supreme Court nomination in 2008, that nominee would have had a hearing, and all Senators would have had the opportunity to debate that nomination on the floor.  As Senator Hatch and I wrote in 2001, “The Judiciary Committee’s traditional practice has been to report Supreme Court nominees to the Senate once the Committee has completed its consideration.  This has been true even in cases where Supreme Court nominees were opposed by a majority of the Judiciary Committee.”  This Senator would not have disregarded precedent and constitutional obligation because of partisan politics.  Whether such a nominee would have been confirmed would have depended on his or her views.  But the nominee would have been given a fair process, which Senate Republicans denied Chief Judge Garland when they pocket filibustered him.

My record in 2008 shows that I treated President Bush’s nominees fairly.  We confirmed 28 circuit and district nominees in 2008, including 10 in one day just weeks before the election, and reduced the number of judicial vacancies to just 34.  Compare that to 2016, when Senate Republicans allowed just nine circuit and district nominees to be confirmed in total.  That is less than 33 percent of the 2008 number.  Moreover, Republicans’ pocket filibusters, even for nominees supported by home state Republican Senators, allowed the number of judicial vacancies to skyrocket over 100.  Of course, they had done the same thing at the end of the Clinton administration, pocket filibustering more than 60 nominees.  Those are the facts.  Anyone who claims that judicial nominees were never obstructed before 2001 has conveniently forgotten those facts.

When Senate Democrats changed the cloture rule for lower court nominations in 2013, we did so reluctantly, and only after Senate Republicans repeatedly abused Senate rules to wage in unparalleled obstruction of President Obama’s nominees over a period of years.  By November 2013, the Republican Leader had orchestrated an unprecedented number of filibusters, including requiring cloture motions on 34 circuit and district nominees in less than five years – compared to 18 nominees who faced cloture motions during the entire eight year tenure of President Bush.

When it comes to judicial nominations, the filibuster has been a tool to protect the independence of our courts by compelling presidents to find mainstream, consensus nominees who do not bring an agenda with their lifetime appointments to our courts.  Senate Democrats filibustered a small number of President George W. Bush’s nominees, but it was not because they were conservative, or had been nominated by a Republican president.  It was because we had serious doubts about their ability to put partisanship and ideology aside and be fair, neutral judges.  Or it was because the president had ignored the traditional role of home state Senators when selecting the nominee.  We confirmed numerous conservative nominees, including Judge Neil Gorsuch.  In fact, during the 41 months that I was Chairman of the Judiciary Committee while President Bush was in office, the Democratic-majority Senate confirmed more circuit and district nominees than were confirmed during the 55 months when Republicans held the majority.

When President Obama took office, Senate Republicans imposed a new standard.  Just two days after he was sworn in, a group of extreme conservative activists instructed Senator McConnell to treat President Obama’s judicial nominees in an “unprecedented” way, and that is what he did.  For the first time, even noncontroversial district court nominees were subject to filibusters – Leader Reid was at one time forced to file for cloture on 17 of them in a single day because of Republican obstruction, even though none were particularly controversial and many actually had the support of their home state Republican Senators.  Republicans filibustered judicial nominees they ultimately supported.  They stalled Senate action for weeks and months on judicial nominees who they did not oppose and who they ultimately voted to confirm once their filibusters ended.  Senate Republicans kept making up new excuses for filibustering nominees that had nothing to do with the nominees themselves.  They abused the Thurmond Rule to filibuster Judge Robert Bacharach, even though he had been reported almost unanimously and was supported by his two very conservative Republican home state Senators.  It was obstruction for obstruction’s sake.

But the final straw was when Republicans blockaded the D.C. Circuit.  The Senate had confirmed four of President Bush’s nominees to that court, but only one of President Obama’s five nominees.  When Senate Republicans filibustered President Obama’s last three D.C. Circuit nominees in late 2013, they barely even bothered to pretend to find fault with the nominees themselves.  These were mainstream nominees with broad support.  Their only alleged flaw was that they had been nominated by President Obama.  Senate Republicans unilaterally decided that President Obama should not get to make additional nominations to that court, effectively trying to nullify the results of the 2012 election – a prelude to their unprecedented treatment of Chief Judge Merrick Garland.

Compare that to the situation we are in this week.  We are told that we must rubberstamp Judge Gorsuch or the Majority Leader will change the rules. Now, some may remember reports from last year where several Senators promised to blockade any Supreme Court nominations by one of the presidential candidates if that candidate won the election.  Of course, those were Republican Senators talking about Secretary Clinton.  But that proposed blockade is not what is happening here.  The fact is that there is a vacancy on the Supreme Court, and that vacancy should be filled with a qualified, mainstream judge.  I know that a Republican president would probably make a different selection than the one I would make, but I have always been willing to consult with presidents of both parties to find mainstream, consensus nominees.  That is my constitutional obligation as a Senator.

The Gorsuch Nomination

All presidents, including President Trump, are entitled to have their Supreme Court nominees considered on the merits.  And over my 42 years in the Senate, I have evaluated every nominee on the merits.  Although I had concerns that Judge Gorsuch would bring a partisan agenda to the Court, I went into his hearing with an open mind.  I hoped that he could convince me that he was a conservative I could vote for, as I did for Chief Justice Roberts.  I voted for Chief Justice Roberts not because I thought I would always agree with him, but because I was able to take him at his word that he did not have an ideological agenda.

It is no secret that Judge Gorsuch is very conservative – that much was evident in 2006 when he was confirmed to the Tenth Circuit.  Back then, Judge Gorsuch did not have a judicial record, but he gave answers that were reassuring.  He discussed the importance of following precedent, and of judicial restraint and deference to Congress.  He said, “Precedent is to be respected and honored.  It is not something to be diminished or demeaned.  It is something you should try to uphold wherever you can, with the objective being, follow the law as written and not replace it with my own preferences, or anyone else’s.”  He explained that judges should not be ideologues who disregard precedent “to effect [their] own personal views, [their] politics, [their] personal preferences.”  I wish that judge were before us today, but he is not.

Judge Gorsuch has a fine resume.  I do not take issue with his qualifications on paper.  My concern is that he has not lived up to his own standard.  I am concerned that his personal views, and his politics, have permeated through his judicial philosophy – and that in fact is the reason why his nomination is before us today.

To know what kind of justice Judge Gorsuch would be, we have to understand why he was chosen.  President Trump made clear from the very beginning that he had a litmus test: anyone he nominated to the Supreme Court would “automatically” overturn Roe v. Wade.  Then-candidate Trump proceeded to outsource the selection process to far right interest groups.  The leader of that unprecedented vetting admitted that they were not driven by “Who’s a really smart lawyer who’s been really accomplished?” but by a search for someone “who understands these things like we do.”  Let us be clear, these are not groups that support independent judges who act with restraint.  These groups search for nominees who will skew the courts; who will call to reject precedent; and who will further their partisan agenda.  If these groups sought a mainstream, widely-respected and independent jurist, they would have been as supportive of Chief Judge Merrick Garland.  Instead, they funneled money to push Senate Republicans to hold Chief Judge Garland’s nomination hostage.

The Federalist Society’s purpose statement, which is on their website, calls for “reordering priorities within the legal system to place a premium on,” among other things, “traditional values.”  These groups, and the billionaire donors who fund them, have a clear agenda – one that is anti-choice, anti-environment, and pro-corporate.  We cannot pretend that they blindly gambled their millions of dollars on Judge Gorsuch.  They chose and invested in Judge Gorsuch for a reason: they are supremely confident that he shares their far right agenda.  And so is the White House.  The White House Chief of Staff has stated that Judge Gorsuch “has the vision of Donald Trump.”  He said that with this nomination “We’re talking about a change of potentially 40 years of law.”  It is clear that the people who vetted Judge Gorsuch do not want a nominee who will “call balls and strikes.”  They want a nominee who will expand the strike zone to the detriment of hardworking Americans.  We should all find that concerning.

The Roberts Standard

At his public hearing, Judge Gorsuch did nothing to allay my concerns.  In fact, he solidified them.  I cannot recall a nominee refusing to answer such basic questions about the principles underlying our Constitution.  These were fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court.  Some of the questions that I asked him were not intended to be difficult.  Several could have been answered by any first-year law student, with ease.  Yet, unless we were asking about fishing or basketball, Judge Gorsuch stonewalled and avoided any substantive response.  He was excruciatingly evasive.  His sworn testimony and his approach to complying with the Judiciary Committee’s historic role in the confirmation process was, in my view, patronizing.

Judge Gorsuch claimed that he did not want to prejudge potential cases.  That is a valid concern, but only within reason.  It should not be used to evade questions on long-settled precedent or on the meaning and purpose of constitutional provisions.  Judge Gorsuch would not even state whether he agreed with certain landmark Supreme Court cases such as Brown v. Board of Education.  He refused to say whether he believes that the Equal Protection Clause applies to women.  He refused to say whether the framers of the First Amendment believed it permitted the use of a religious litmus test.  He refused to provide information regarding his selection by extreme special interest groups and a billionaire businessman.  And he even refused to confirm whether he would continue to recuse himself from matters involving that billionaire – as he has done on the Tenth Circuit – even if presented with the exact same facts. 

Other Supreme Court nominees have been more forthcoming.  When asked whether he agreed with important precedents, then-Judge Alito answered the questions.  When I asked then-Judge Roberts whether Congress has war powers, he said, “Of Course.  The Constitution specifically gives that power [to declare war] to Congress.”  I asked whether Congress has the power to stop a war, and he said, “Congress certainly has the power of the purse,” but added “as a judge, I would obviously be in a position of considering both arguments, the argument for the Legislature and the argument for the Executive.  The argument on the Executive side will rely on authority as Commander in Chief, and whatever authorities derive from that.”  It was perhaps not the answer I would have liked, but he certainly engaged with the question and showed that he understood the issue in a way that did not prejudge any potential case.

I later asked then-Judge Roberts whether “Congress can make rules that may impinge upon the President’s command functions.”  He responded: “Certainly, Senator.  The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches.  The President is the Commander in Chief, and that meant something to the Founders.  On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution.  Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President’s view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.”  Whether one agrees with it or not, that was a substantive answer.

I asked Judge Gorsuch a similar question in writing – whether he agreed that “the Constitution provides Congress its own war powers and Congress may exercise these powers to restrict the President – even in a time of war” as the Court held in Hamdan v. Rumsfeld.  Here is the totality of his response: “I agree that Hamdan v. Rumsfeld recognized limitations on the power of the President. It is a precedent of the Supreme Court entitled to all the weight due such a precedent.”  Perhaps that is better than no response at all, but not by much.

When I asked Judge Gorsuch a straight-forward historical question about whether the framers of the First Amendment believed it permitted the use of a religious litmus test, he refused to answer.  I asked then-Judge Roberts a similar question – whether he would reject Korematsu and hold it unconstitutional to intern U.S. residents who “have a particular nationality or ethnic or religious group.”  He answered: “I suppose a case like that could come before the Court. I would be surprised to see it, and I would be surprised if there were any arguments that could support it.”  I do not think he prejudged any cases, but he was still able to provide a real answer to a basic question – and he earned my support.

I had hoped that Judge Gorsuch would be more transparent in written questions – given time to carefully craft answers away from the lights and cameras.  But he again declined.  He refused to expressly acknowledge that Congress has war powers, even though every high school student knows that the Constitution gives Congress the power to declare war.  He again misstated the holding of Citizens United in an attempt to evade my question about Congress’s ability to enact campaign finance legislation.  He provided no answer at all to questions regarding the Supreme Court’s decision in Shelby County to gut the Voting Rights Act, and about women’s rights to obtain contraception.  And, again, he refused to answer whether the First Amendment prohibits the President from imposing a religious test, even when the Trump administration has adamantly claimed such a litmus test is not at issue with his travel ban.

Previous nominees respected the Judiciary Committee’s constitutional role by answering questions in a substantive way – not with mere platitudes.  The difference is clear to Vermonters.  As an editorial in the Rutland Herald put it, “Gorsuch’s affable muteness sent a message: I am above the people and their concerns.  I have no responsibility to anyone but the narrow band of millionaires and ideologues who have advanced my nomination and to the president who has declared war on the American government.”  I ask that the full editorial be included in the Record at the conclusion of my statement.    

Judge Gorsuch claimed that his personal views do not matter so he would not share them.  But that did not stop him from speaking at length about over-criminalization and arguing that there are too many Federal criminal laws and regulations.  Those of us on the Judiciary Committee know this is a substantive and controversial policy issue that has been vigorously debated in recent years.  I have to wonder why this was the only issue where he put forward his actual views.  That is not good enough for me.  As the article by Garrett Epps in the Atlantic put it, Judge Gorsuch refusal to answer questions implied that the role of a judge is “a job which calls, apparently, for neither values nor any firm connection to human life as it is lived.”  The American people know better. 

All of this matters because court decisions, especially Supreme Court decisions, are not simply detached applications of neutral principles.  If they were, all judges would always reach the same results for the same reasons.  They do not.  Legal decisions are not mechanical.  They are matters of interpretation and, often, matters of justice.  One Supreme Court justice said more than a century ago:  “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.”

The Gorsuch Agenda

Whether he will acknowledge it or not, Judge Gorsuch’s record says a lot about his judgment and his sense of justice.  In a policy role at the Justice Department, he embraced broad and discredited assertions of executive power.  Judge Gorsuch once complained about liberals relying on the courts to vindicate their constitutional rights, but, once on the bench, he had no problem rubberstamping the far right’s social agenda when he ruled that employers could control their employees’ access to contraception.  As a judge, he twisted statutory language to limit the rights of workers, women, and children with disabilities. 

Judge Gorsuch also reached for broad constitutional questions that were not before him in order to advance his agenda.  Just last summer, Judge Gorsuch wrote a concurrence to his own opinion in a case called Gutierrez-Brizuela v. Lynch.  His unanimous panel opinion decided the case on narrow grounds.  But Judge Gorsuch nevertheless wrote a separate concurrence to argue that the Chevron doctrine should be overturned.  The Chevron doctrine not only forms the basis for our modern government, but it is well-settled law, and has been for decades.  As Emily Bazelon and Eric Posner wrote in The New York Times, “The administrative state isn’t optional in our complex society.  It’s indispensable.”   But this is precisely why Judge Gorsuch has failed to demonstrate that he is a mainstream nominee.  His judicial record demonstrates a partisan agenda – a hostility toward our government’s power to enact environmental, labor, consumer, and other regulations that keep hardworking Americans safe and ensure a level playing field. 

Between not answering questions, Judge Gorsuch spoke repeatedly at his hearing about the limited role that judges play in our democracy.  But his actual record belies that claim.  And that is precisely why extreme-right interest groups selected Judge Gorsuch.  That is why the President’s chief of staff promised he would bring a change of 40 years of law.  And that is why I cannot support his nomination.

Partisan Rule

It is for this nominee that Senate Republicans have brought us to this precipice.  But perhaps we should not be surprised.  Republican leadership has sought to govern only by simple majority since day one of the Trump administration.  They paraded before the Senate the most extreme and partisan slate of Cabinet nominees I have ever seen.  Their signature legislative goal – to repeal the Affordable Care Act – collapsed under the weight of their own intra-party infighting.  And they dusted off the Congressional Review Act to roll back more than a dozen environmental, workplace, privacy, healthcare, and transparency protections – all over the objections of the minority. 

Think about that.  Republicans have not sought compromise on anything in this Congress.  That is not the way to govern. With a simple majority vote, Republicans repealed an important Internet privacy rule that protected Americans’ online activity.   That means hardworking Americans will now see their private Internet activity sold to the highest bidder for greater corporate profits. 

But Senate Republicans didn’t stop there.  With simple partisan majority votes they have rolled back protections to ensure that all students have the same educational opportunities.  Republicans have eliminated rules requiring employers to maintain records of workplace injuries so employers could avoid accountability.  Republicans have rolled back rules holding coal companies accountable for their pollution.  Most recently, Republicans undermined health care access for millions of Americans, rolling back protections under the Title X program.  In underserved communities and rural areas like Vermont, Title X is critical in making sure women have access to the basic health care they need. 

But this is what one-party rule gets you.  Republicans are great at looking out for corporate interests.  They struggle at looking out for the interests of hardworking Americans.  The irony of it all is that even these partisan efforts have been too partisan for some Republicans.  Three times this year – the most since any Vice President since 1911 – Vice President Pence was forced to make the trip to Capitol Hill to break a tie.

With the Gorsuch nomination, Republicans are proving that they have no interest in playing by the rules; they prefer to break them.  The unprecedented obstruction of Chief Judge Merrick Garland will be a permanent stain on this body.  Then, days after the 2016 election, Republican leaders threatened to change the rules to get their own nominee through – before we even had a name.  After disregarding his constitutional obligations for nearly a year, the Majority Leader now tells us we must rubberstamp President Trump’s nominee or he will forever damage the Senate.

It is interesting that the Majority Leader’s argument for obstructing Chief Judge Merrick Garland is that the American people needed to weigh in on this decision, as if they had not weighed in when they re-elected President Obama in 2012.  But when the American people did vote last November, nearly three million more of them chose Secretary Clinton over Donald Trump.  In fact, Ezra Klein had it right two months ago when he wrote that this nomination “makes a mockery of the popular will.”  I ask that the article, “The country deserves a compromise Supreme Court nominee. Neil Gorsuch isn’t one,” be included in the Record at the conclusion of my statement.  Because of the divergence between the popular and electoral vote, Klein argued, “This is a time, if ever there was one, for a compromise nominee, and Gorsuch is not a compromise nominee.”  This is exactly what the 60-vote threshold is for.  It helps ensure that presidents consult with Senators of both parties and find mainstream, consensus nominees.  The filibuster protects the rights of the minority and of individual Senators, it protects the constitutional role of the Senate, and it helps us protect the independence of the Supreme Court.  The Court is no place for someone with a radical, partisan agenda.

We Need a Consensus Nominee

Senate Republicans are defending their threat to change the rules by claiming that Judge Gorsuch is essentially a perfect nominee, and that if Democrats filibuster Judge Gorsuch, then we would filibuster anyone.  That is nonsense.  We have asked only for a mainstream nominee.  Perhaps they are confusing our approach with their blockade of Chief Judge Garland.   Unlike Committee Republicans’ treatment of Chief Judge Merrick Garland, I take my constitutional duty to independently evaluate a president’s Supreme Court nominees seriously.  My votes on Supreme Court nominations have never been about reflexive partisanship.  I have evaluated every nominee on the merits – and I have voted to confirm six Supreme Court nominees of Republican presidents.

If the Senate does not vote to end debate on this nomination, that is a judgment on defects of this nominee.  I remind Senate Republicans that they do have a choice here.  We could work together, with President Trump, to find a mainstream, consensus nominee.  I expect that an actual mainstream nominee would be confirmed easily, even if nominated by President Trump.  Recall the process President Obama used when he selected Chief Judge Merrick Garland.  As he described it: “I’ve sought the advice of Republican and Democratic members of Congress.  We’ve reached out to every member of the Senate Judiciary Committee, to constitutional scholars, to advocacy groups, to bar associations, representing an array of interests and opinions from all across the spectrum.”  If President Trump were to follow that template, we would not be in this extraordinary place.

As I said on Monday, I respect this institution as much as anyone.  For more than 42 years I have devoted myself to the good that it can accomplish.  We 100 Senators stand in the shoes of 320 million Americans.  First and foremost, we must do right by them.  And I will not vote solely to protect an institution when the rights of hardworking Americans are at risk.  It is for these reasons that I must oppose this nomination. 

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David Carle: 202-224-3693