04.03.17

Statement of Senator Patrick Leahy On The Nomination Of Neil Gorsuch To Be An Associate Justice Of The Supreme Court

Let me begin with the nomination of Rod Rosenstein to be Deputy Attorney General.  Mr. Rosenstein has spent 27 years in the Justice Department and the last 12 years as U.S. Attorney for the District of Maryland.  He has a reputation for integrity that is unusual for this administration’s nominees.  But, if confirmed, he will inherit a situation that no Justice Department nominee has faced since 1973: an active criminal investigation into a sitting president’s campaign and administration.  Every week, new evidence surfaces indicating that Trump campaign officials colluded with a hostile foreign power to influence the election and undermine our democracy.  Numerous senior officials from the Trump campaign have been caught lying about their communications with Russian officials.  Even the Attorney General was forced to recuse himself after the press revealed that he misled this Committee about his own contacts.  And time and again, the White House has demonstrated that it will not respect the independence of any investigation.  Whomever assumes the role of Deputy Attorney General in this administration will face extraordinary tests of integrity.  It is against this unprecedented backdrop that we consider Mr. Rosenstein’s nomination today.

Anyone paying attention, let alone someone familiar with the Justice Department rules, understands that this situation calls for appointment of a Special Counsel.  Americans deserve an investigation that is independent and inspires public confidence.  This issue is too important for us to skew for partisan motivations.  Country must come before party.  Mr. Rosenstein assured me and others that on the matter of Russian interference in our election, he is on the American side, not the Russian side.  I trust that he will hold true to that statement.   

If confirmed, Mr. Rosenstein will face other critical tests as well, including whether he will continue to support the Justice Department’s Smart on Crime initiative, focusing the most serious criminal penalties on the most serious offenders.  I will vote to advance Mr. Rosenstein’s nomination today because I expect him to do the right thing when facing such pivotal issues.

Now, the nomination of Judge Gorsuch.  I said weeks ago that I was approaching this nomination with an open mind.  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.  Unlike Committee Republicans’ treatment of Chief Judge Merrick Garland, I take my constitutional duty to independently evaluate a president’s Supreme Court nominees seriously.  That includes Judge Gorsuch.

For those of us who hoped that Judge Gorsuch would use his confirmation hearings to give insight into the type of Justice he would be, we were certainly disappointed. Based on his record, I had concerns about his views and whether he would bring a partisan agenda to the court.  Judge Gorsuch did nothing to allay those fears.  He in fact solidified them. 

I cannot recall a nominee refusing to answer such basic questions about the principles underlying our Constitution, and about how he interprets those principles.  These are fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court.  Some of the questions 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 this Committee’s historic role in the confirmation process have been patronizing.  That is a disservice to the American people.  And it is a blight on this confirmation process.

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. 

I hoped that Judge Gorsuch would be more transparent and forthcoming in written questions – after given time to carefully consider the questions 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 he again refused to answer whether the First Amendment prohibits the President from imposing a religious litmus test, even when the Trump administration has adamantly claimed such a litmus test is not at issue with his travel ban.

Judge Gorsuch’s nonresponsive testimony makes it difficult for this Committee to fulfill its constitutional duty to examine his judicial philosophy and evaluate his nomination.  Perhaps we should not be surprised that a nominee would not respect the role of this Committee after Senate Republicans let rank partisanship blind them from their constitutional duty to consider Chief Judge Merrick Garland.  They did not afford Chief Judge Merrick Garland the courtesy of a hearing.  Some even refused to meet with him.  What a shameful stain on the proud history of this Committee.

The lesson Judge Gorsuch may have learned from Senate Republicans’ treatment of Merrick Garland is that this Committee is nothing more than a partisan rubberstamp.  Judge Gorsuch appears to believe that since Republicans are in the majority he need not answer questions and is entitled to confirmation.  The Majority Leader appears to believe that too.

Previous nominees respected this Committee’s constitutional role by answering questions in a substantive way – not with platitudes and aphorisms.  One law professor wrote in the Atlantic that Judge Gorsuch “was by turns condescending, evasive, and even dishonest.  In fact, it’s not too much to say that he, in his aw-shucks gentlemanly way, gaslighted the committee in a genteel but nonetheless Trumpian style.” 

That description befits a nominee who the White House Chief of Staff stated “has the vision of Donald Trump.”  Judge Gorsuch did not do nearly enough to prove Mr. Priebus wrong.  In fact, he said that marriage equality is settled law but refused to say the same thing about a woman’s right to choose.  That is telling considering it is the same position taken by President Trump, who promised time and again to nominate justices who would overturn Roe v. Wade.

When pressed on this issue, Judge Gorsuch claimed that his personal views did not matter, and he refused to discuss them.  As the article by Garrett Epps in the Atlantic put it, Judge Gorsuch 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.”  I ask that the article, titled “The Fundamental Dishonesty of the Gorsuch Hearings,” be included in the Record.  The American people know better.  We know that 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.”

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.  As a judge, he twisted statutory language to limit the rights of workers, women, and children with disabilities; and he reached for broad constitutional questions that were not before him in order to advance his agenda.  Judge Gorsuch complained about liberals relying on the courts to vindicate their constitutional rights, but he had no problem rubberstamping the far right’s social agenda when he ruled that employers could control their employees’ access to contraception.

When the far-right groups that vetted him look at that record, they like what they see.  The leader of that vetting has said that the process was driven not 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.”  We know that these groups, and the millionaires who fund them, have a clear agenda – one that is anti-choice, anti-environment, and pro-corporate.  These groups are confident that Judge Gorsuch shares their agenda.  That should concern all of us.

I have thought a lot about this nominee, and whether I could somehow find a way to support him.  When I reached the decision to support Chief Justice Roberts’ nomination, I did so knowing that he was conservative.  But I also believed that his record as a judge at the time showed a commitment to restraint and minimalism.  While many other Democratic Senators voted the other way, his record allowed me to take him at his word that he did not have an ideological agenda.  I said then that “a vote to confirm requires faith that the words he spoke to us have meaning.”

Compared to Chief Justice Roberts, there is a yawning crevasse between the words Judge Gorsuch spoke to us, and his actual record.  When viewed in isolation, perhaps those words would appear satisfactory.  But when viewed in the context of his troubling tenure at the Justice Department, his unprecedented selection process by far-right interest groups, and his judicial record evidencing a partisan agenda, they are unconvincing.  

These are extraordinary times, and this is an extraordinary nomination.  Last year this Committee forever tarnished its reputation and 100 years of bipartisan tradition to do the Majority Leader and Donald Trump’s partisan bidding.  Senate Republicans held a Supreme Court vacancy and an eminently qualified nominee hostage with the sole and express intent to deny President Obama an appointment to the Supreme Court.  Since taking office, President Trump has focused his attention on targeting the very communities that are most at risk by his choice for the Supreme Court – a nominee who, the White House tells us, shares his agenda.  This nominee has since refused to address any substantive issues during his testimony.  He has left this Committee and the American people with only unresolved concerns.  The Majority Leader is now promising to rush this nominee toward confirmation, depriving Senators of a full debate on the Senate floor.  And the Majority Leader has promised to use whatever tactic is necessary to get his way – that Donald Trump’s nominee is confirmed, even if that means forever damaging the Senate. 

I respect this institution as much as anyone.  For over 42 years I have devoted myself to the good that it can accomplish.  But I cannot vote solely to protect an institution when the rights of hardworking Americans are at risk.  I fear the Senate I would be defending no longer exists.  I have often said that the Senate, at its best, can be the conscience of the Nation.  I must now vote my conscience, both today and later this week.  My conscience will not allow me to ratify the Majority Leader’s actions – not last year and not this year.  I will not support advancing this nomination.

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