04.05.17

Senate Floor Statement Of Senator Patrick Leahy On The Nomination Of Judge Neil Gorsuch To The Supreme Court

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 – all in the service of Donald Trump’s agenda. 

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.  My votes have never been about reflexive partisanship.  I have voted to confirm six Supreme Court nominees of Republican presidents.  Unlike Senate Republicans’ treatment of Chief Judge Merrick Garland, I take my constitutional duty to independently evaluate a president’s Supreme Court nominees seriously.  That has included Judge Gorsuch.

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 support, as I did 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 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 is in fact 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 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 process 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 as I was 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.”  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 choose 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.”  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. 

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.  But 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. 

Other Supreme Court nominees have been much more forthcoming.  When asked whether he agreed with important precedents, then-Judge Alito answered the questions; Judge Gorsuch did not. 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 over 10 years ago – whether the internment of U.S. residents who “have a particular nationality or ethnic or religious group” could be constitutional.  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.”  Then-Judge Roberts provided real answers to basic questions – 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.  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 he refused to answer whether the First Amendment prohibits the President from imposing a religious test, even when the Trump administration insists 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.  This 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.   

All of this matters because Supreme Court decisions are not simply detached applications of neutral principles.  If they were, all judges would reach the same results for the same reasons.  They do not.  Legal decisions are matters of interpretation and, often, matters of justice.  Whether he will acknowledge it or not, Judge Gorsuch’s record says a lot about his sense of justice.  At the Justice Department he embraced broad and discredited assertions of executive power.  He also once complained about liberals relying on the courts to vindicate their constitutional rights but, as a judge, he had no problem twisting statutory language to limit the rights of workers, women, and children with disabilities.

Just last summer, Judge Gorsuch wrote a concurrence to his own opinion 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. 

At his hearing, between not answering questions, Judge Gorsuch spoke repeatedly 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.

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.

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.  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