Skip to main content

tv   Judiciary Committee Sends Gorsuch Nomination to the Senate Floor  CSPAN  April 3, 2017 9:55am-2:40pm EDT

9:55 am
[inaudible conversations] >> senators from the senate judiciary committee starting to feel the room here while we wait for this hearing to come together and for the voting to begin on judge gorsuch. rod rosenstein for attorney general, rachel brand for associate attorney general. a look at the background on judge gorsuch from today's "washington journal." >> the outcome of the vote today isn't really in doubt, is it? >> no, not at all. 11 republicans said on the judiciary committee and there are nine democrats. as long as all republicans vote
9:56 am
in favor -- vote favorably to report judge gorsuch out of the city that he should make its way onto the floor and there is no sign that any republican who is a fact. the question is now what happens when his nomination goes to the floor. we've got about 37 senate democrats who declared the filibuster judges nomination for the supreme court. you would need 41 to block and that is very close to getting married. it remains to be seen. judge gorsuch will be confirmed by the end of the week and mitch mcconnell the senate majority leader is prepared to use the nuclear option to get there. >> reviewers come into this, explained that the nuclear option is. >> is basically a very provocative procedural tools because it's not used very often
9:57 am
and essentially changes the rules and the senate, by just 51 votes. senate majority leader harry reid to change have the filibuster's work on nominations except with cabinet nominees. basically the supreme court. this is a move that infuriated leaders at the time but now republicans are in the majority. they say democrats are being stubborn with their refusal to advance on judge gorsuch to an up or down vote. almost all of this 52 member conference to use this nuclear option is now and that he was dead judge gorsuch confirmed by the end of the week good >> what happened to the top of
9:58 am
atl to preserve the filibuster for the future nominee. >> it didn't go too much anywhere. always especially in these circumstacircumsta nces, there's always a a group of democrats and republicans who are genuinely concerned about the direction that the senate is going in terms of the nuclear option that you had people like john mccain have mentioned that he may have been talking with democrats and telling reporters all week how concerned he is about the direction of the senate. however, like we saw in 2005 the gang of 14 was a group of seven republicans and seven democrats and the bush nominees back to the george w. bush administration. the majority had to invoke the
9:59 am
nuclear option at that time. however, these 14 senators came together and said they would not filibuster judges unless they were extraordinary circumstances said the tax cut helped together to advance a lot of the bush nominees over the 60-vote threshold. first of all, it's a different senate. there's only three of members of that can't afford and around republicans. i talked to him a lot about this issue for the last week. he just feels that this is not a chamber from a senate that can make deals like that. that is why it is all but inevitable. we have to wait and see if they're for doing democratic votes to block neil gorsuch and enough republicans for nuclear.
10:00 am
it is kind of a reflection on just the transformation of the senate. in the last several years. >> certainly we can watch that. thank you for breaking it down for us. >> thanks for having me. [inaudible conversations] [inaudible conversations] [inaudible conversations]
10:01 am
[inaudible conversations] [inaudible conversations] [inaudible conversations]
10:02 am
>> most of the members of the senate judiciary committee already here in the room and the heart senate office building voting on the nomination of judge neil gorsuch to the u.s. supreme court. the seat left empty since february of last year. justice antonin scalia passed away. the committee has heard more than 20 hours of testimony from judge gorsuch including the two on the screen now. dianne feinstein and ranking member, patrick leahy as well in the chair chuck grassley on the left. the committee also expect you to vote on rod rosenstein or deputy attorney general and rachel brand to be associate attorney general. of course after the vote today,
10:03 am
no matter what happens here, the senate majority leader mitch mcconnell says they are doing to take up the judges nomination before the full senate by friday. [inaudible conversations] [inaudible conversations]
10:04 am
[inaudible conversations] [inaudible conversations] >> good morning, everybody, particularly to the large crowd here to view this committee meeting this morning. we have much to do today, so i appreciate everyone being here.
10:05 am
we have three nominees on the agenda are ripe for consideration neil gorsuch to the supreme court rod rosenstein, deputy attorney general, rachel brand to be associate attorney general. i want to explain how we will proceed we need to report out the nominees for the attorney general. we all understand that it important for the department of justice to have senior leadership in place. my intention is to have everyone speak on the judge and then vote on his nomination. then we will turn to rosenstein and brand. i'll have a statement on both of them that i'm going to put in the record so we keep these moving. regarding the judge for the most part everyone has already
10:06 am
indicated one way or another how they intend to vote, so there isn't a whole lot of mystery about how this is going to go committee meeting today. regardless, everyone should have an opportunity to ask when their boat. so everybody can speak as long as they want to. but my hope is that members can try to keep their remarks within 10 minutes so that everyone can speak and we can proceed in an orderly way. now i speak in turn to the ranking member. today we are considering the nomination of judge neil suggs six to serve as associate justice of the supreme court. over the last couple of months, the nominees opponent have tried to find fault with 10 that salt
10:07 am
will not stick. and of course we have seen that it just has that were. before the president made his amount may, the minority leader declared that any nominee must prove and ralph in his words mainstream to get confirmed. well, that task ran into trouble the minute the president selected the nominee. he was confirmed to the 10th circuit 2006 by unanimous voice vote. in the 10 years since, his record on the bench has proved that the judge falls well within the mainstream. he has participated in 2700 cases. he is told that the majority 99% of the time and roughly 97% of
10:08 am
those 2700 is were decided unanimously. two of his former 10th circuit colleague. one was a reagan appointee. one was a clinton appointee remarked upon and now i quote them, his fair consideration of opposing views his remarkable intelligence. his wonderful judicial temperament expressed to although that again and his collegiality among colleagues. so you get words like fair, remarkable, wonderful, collegiality from people that have people that have served with him during that period of time. some appointed by republican presidentpresident s. some appointed by democratic presidents. and then you wonder what the uproar about him is all about. legal commentators across the political spectrum have recognized that he's mainstream.
10:09 am
even rachel matteau who is the next that way conservatives that the judge is a quote through a mainstream choice that you might expect from any republican president, and this quote. once it became clear that judge gorsuch is mainstream, opponents then moved the goalposts in fact a whole different task. any nominee for president tried the minority leaders said must prove that he has independent. of course there is no debate on this question either. the night -- they turn my phone off here. goodnight judge gorsuch was nominated, president obama,
10:10 am
solicitor general neil calvo wrote a "new york times" op-ed entitled, quotes, why liberals should back meal gorsuch the end of quote. he argued that one basic question should be paramount. quote, is the nominee is someone who will stand up for the rule of law and say no to a president or congress that strays beyond the constitution and the laws? , and of quote. he answered his own question. quote, i have no doubt that if confirmed judge gorsuch would help to restore confidence in the rule of law. and of quote. he went on to write the judges record should give the american people confidence that he will not compromise principle in
10:11 am
favor of the president who appointed him. it is for these reasons and others that david frederick, the board member of the liberal american constitution society argued in an opinion piece that there is no principled reason to oppose judge gorsuch and that we should applaud such independence of mind and. and supreme court nominees. so then another task on the independents charged didn't stick either. next, we heard that the judge is against the little guy for the big guys. as an initial matter, this is really a strange criticism considering that my colleague, the minority leader praised justice sotomayor who quote is
10:12 am
the rule of law above everything else, even when doing so results in rulings that go against sympathetic litigants, and of quote. and the judge himself proves how absurd this argument is by saying a number of cases where he ruled that the so-called little guy. regardless, it is of course a silly argument. no judge doing their job considers this database of the litigants before them when deciding the case is. that is by liberal harvard law professor feldman described the critique that judge gorsuch doesn't cite with the little guy as a truly terrible idea. the rule of law is a liberal conservative or shouldn't be, and of quote.
10:13 am
in other words, a good judge listens to the argument regardless of who makes them and applies the law regardless of the result. so that didn't stick. so next we heard that the judge has unanswered questions. that argument is basically a complaint that he won't tell us how he's going to vote on a whole host of legal questions that he might have to deal with when he said some not damaged. well, the irony here of course is that seeking assurances from the nominee how he will vote on particular legal questions undermine the very independent that we demand of the supreme court and right now his nominees. this approach is consistent with the judicial ethics and this can establish the petition taken by
10:14 am
justice ginsburg during her nomination. in fact, that is where the ginsburg rule comes from. she put it this way, quote, the judge sworn to decide impartiality can offer no forecast for a while would show -- for that would show not only disregard for the specifics of a particular case, it displayed disdain for the entire judicial process, end quote. judge gorsuch response reflects the ginsburg principle. and so at last after all these charges leveled against the nomination and fallen flat, we learned the nominee should be opposed because of his record --
10:15 am
not because of his record or qualifications, but because those clients he had. for the groups who now support him. we've heard criticism of the judge's former client, the department of justice and is litigating position, opposition on these grounds may be creative, but they are in fact baseless. here's the inconsistency. judge justice kagan, for example, argued solicitor general that the government could constitutionally banned pamphlet material when that issue was raised at her hearing. she said she was a government lawyer acting on behalf of her client. that client happened to be the same united states government that judge gorsuch had worked or a while. today the other side is arguing
10:16 am
that government lawyer should be held personally responsible for every legal position once again and finally of course they are speaking out in support of his nomination and spending quote, unquote, dark money, on issue advocacy. it speaks volumes that the nominee. after reviewing 2700 cases, more than 180,000 pages of documents from the department of justice and the george w. bush library and thousands of pages all day
10:17 am
or detect did is an attack on the people who support the nomination. now, as a senator who has participated in 14 supreme court hearings, i must say these comments strike me as really odd. to hear my friends on the other side will it, it is only conservative south site groups who are engaged in the nomination process. but we all know that isn't true. it is no secret that there are dozens of adequacy groups on the web who get involved in the nomination process. there is absolutely nothing whatsoever wrong with that. we call it free speech. a group called the coalition for constitutional values ran ads in support of justice sotomayor and
10:18 am
justice kagan before their confirmation. the american constitution society touted justice kagan as a justice for every american, and of quote. where did the money come from? i don't know and i suppose a lot of people think that i shouldn't say i don't care, but this is america where people can then their many where they want to spend it and they can use their money for political speak for any advocacy that they want. and of course as we see, advocacy groups on the left are engaged on this nomination as well. liberal billionaires by tom stier, george soros found their own dark money organization like nexgen climate, a group that describes judge gorsuch as an extreme candidate wrong for the
10:19 am
supreme court. under any circumstances, end quote. everyone in this room knows that liberal and progressive groups have been pressuring the minority leader to find a reason i'm any reason to filibuster a nominee. naral has run ads to pressure members to filibuster. we even had some groups called progressive change campaign committee target is senior, and extremely well-respected democrat over his quote, unquote squishy comment suggesting he might not filibuster. in short, any democrat who supports the nomination. now that is very dark and of course all last year, the groups on the left to coordinate an
10:20 am
attack on me because i didn't hold a hearing on garland. they followed me all over iowa, put a go board, even had a plane pulling a banner or special event in des moines. can you imagine not playing for mobile billboards. every time meeting he had. billboards in des moines iowa all over it touting three republicans that were ashamed of grassley. i found that the republicans may be 20 years ago. tv ads, radio ads. the town meetings and even somebody i found out from washington state to make sure
10:21 am
that everybody knew how bad i was. i don't care about it because that's the way we do things than as representative democracy. i tell people one people up front in about two minutes of opening meetings. i let them set the agenda. i want half of the process. how can you be representative of the people if you don't have dialogue with it. these people have dialogue with me and it's part of our democratic system. i've never heard the democrat explained about all that money. we took the right course for the simon and for the court. we process this nominee and so we are processing the nominee.
10:22 am
9:00 on election night, everybody thought hillary clinton is going to be president of the united states. a long time before that 9:00, months before, i said whoever is the lack of president we are going to process that nominee. and that is what we are doing right now. that is democracy at work. via much i disagree with advocacy groups on most issues, but i don't take issue with their engaging in the process and making their voices heard -- voices heard. the bottom line is this. if the issue advocacy groups are engaged in the process, the remedy is not to attack, intimidate or try to silence them. the remedy is to support nominees who will apply the law as it's written. the remedy is to support nominees who leave legislative congress.
10:23 am
if you want politics, the solution is judge is who apply the is a threat and leave the policy making to the other branches. which brings me back to where i start. judge gorsuch is eminently qualified. he's a mainstream judge whose aren't universal respect of colleagues on the bench or in the power. we have congress write it as a judicial status without respect this nominee we vote if it judges judge. we should have on the supreme court. so i urge you to join me in supporting his nomination. senator find time.
10:24 am
>> tanks very much, mr. chairman. this is not a routine nomination. and last year is unprecedented. throughout our nation's history the 19 supreme court justice says have been nominated and can earn in three of have been nominated and confirmed after the presidential election took place. there was simply no reason that the nomination of judge garland could not proceed other than to deny that then president of the united states president barack
10:25 am
obama the ability to fill the seat and that is what has taken place. secondly, the press reported indicate that $7 million of dark money was spent to defeat judge garland's nomination. this too is unprecedented. however with the nomination of judge gorsuch, the spending of dark money has on the ground. weeks ago, press began reporting that the pope brothers through concerned veterans for america and other conservative donors through the judicial crisis network planned to spend at least $10 million on a political campaign to support judge gorsuch nomination. since then, the national rifle assist the haitian has launched a $1 million ad and just last friday, the judicial crisis network announced another
10:26 am
1 million targeted to specific senators in missouri, montana, indiana and colorado. so this nomination is not the usual nomination. it comes in a different way and has excessive spending of dark money than in the time i have been on this committee i have never seen before. this is deeply troubling and the way a serious process i strongly believe the expenditure, millions of dollars of unknown dollars could not be permitted in the nomination of a supreme court justice. however, we have had four days of full and fair hearing and
10:27 am
today we begin our markup. i want to thank for the leadership in a cooperative manner which we are cannot did. you are allowing all members to fully ask russians and the time they needed to examine and judge gorsuch record in here from outside witnesses is very much appreciated. in reviewing the last of judge gorsuch decisions on the 10th circuit, two standout as appearing to indicate his view of how a law should be interpreted and whether precedent should be overturned. the first which has been talked about before, but nonetheless very important is a case called trans am tracking. the driver how fonts mattered was stranded in subzero
10:28 am
temperatures for several hours with frozen brakes on a trailer and no heat in his cab. it was so cold his torso was none and he could not deal his feet. after waiting hours for assistants, mr. madden was then struck it to drive the cab and the trailer together or not at all. when he could no longer stand the cold, he unhitched the trailer and drove to get help because of this he was fired. the department of labor found he was illegally fired for refusing to operate the vehicle. in fact, the administrative law judge, the administrative review word and the majority of the 10th circuit all agree that he had been illegally fired for refusing to operate the vehicle as then struck dead by his employer. judge cac quarante disagreed.
10:29 am
-- judge gorsuch disagreed. the term operation be interpreted by the oxford dictionaries definition. that operate should include only operating the cab of the track and add-ins employer can fire him with impunity. i find this striking. first, judge gorsuch argument ignores the reality risk your own life or the life of others on the road. secondly, it ignores the fact that judges are not evaluating cases and interpreting in a vacuum or law school classroom, but rather cases are about real people and real life. in fact, the majority of his own court noted that judge gorsuch
10:30 am
narrow interpretation of the word operate was based on one dictionary while they had found a different dictionary definition that supported their reading of the statute. simply put, a judge happens to select should not and cannot determine whether a just outcome is achieved in a case. the second case that really stood out and the father testified before us was luke p. luke perkins was diagnosed with autism at 22 months. as he got older, the amount of structure and educational services he needed increase. in response, luke's parents and grand parents did all they could. they dug deep into their savings. ..
10:31 am
adding the word barely made a narrow interpretation of the law, even narrower. as a luke's father testified to us, and i quote, judge gorsuch felt that an education for my son that was even one small step above insignificant was acceptable, end quote. luckily, the supreme court
10:32 am
unanimously rejected judge gorsuch interpretation of the law actually during our hearings. in both cases, judge gorsuch unnecessarily went out of his way to comply his own view of what the law should be, even when it would have devastating effects on peoples lives. because these cases were troubling, i had hoped judge gorsuch would better explain his judicial philosophies and personal views at this hearing. but that did not happen. judge gorsuch views were difficult to discern because he refused to answer many questions, even basic questions that have been answered by previous nominees here for example, senator blumenthal asked the judge if he agreed with the results of brown v. the
10:33 am
board of education, one of the most important cases in our history i think everyone would agree. rather than agreeing that schools should not be segregated, judge gorsuch instead said it was quote, the correct application of precedent, end quote. to be clear, when asked if he supported brown, judge gorsuch refused to directly answer. in contrast, when justice kennedy was asked about brown, he replied, and i quote, i think brown v board of education was right when it was decided, and to think it would've been right if it had been decided 80 years before, end quote. in another exchange, senator franken asked about the wave of recent laws to restrict access to voting. these laws were found to target
10:34 am
african americans with surgical precision. senator franken discussed the effect of these laws, but he simply asked if judge gorsuch was disturbed by efforts to disenfranchise african-american voters. the question has but one easy answer, and it is yes. yet instead of agreeing, judge gorsuch ducked the question. he responded, and i quote, if there are allegations of racism in legislation in the voting area, there are a variety of remedies, end quote. even justice alito was more candid. when asked about affirmative action, justice alito replied, i have personal experience about how valuable having people with diverse backgrounds and viewpoints can be. having a diverse student body is a compelling interest.
10:35 am
going even further, in 1987, senator biden asked justice kennedy not what he thought about affirmative action generally, but whether the voluntary affirmative action plans are legally permissible. judge kennedy unequivocally responded yes. unfortunately, judge gorsuch is answers were so diluted with ambiguity, one could not see where he stood even on big and long settled cases. when i asked judge gorsuch about his work at the department of justice involving the bush administrations defense of the use of torture, just by providing relevant documents, judge gorsuch said only that, quote, his memory is what it is, and it isn't great on this, end quote. and that the position he took on
10:36 am
torture, quote, was the position that clients were telling him, end quote, to take. not only did he not answer my question, he raised an additional concern. i strongly believe that when you work for the government, either as a lawyer or a policymaker, it's important to comment on the legality of the issue you advise or right. to say, i did what they wanted, is not enough. particularly if the legality is contradicted by both law and treaty. i also believe it's important to remember the context. at this point our country was involved in detaining people indefinitely without charge or trial, leaving them with no rights, no meaningful opportunity to challenge their confinement. the government had also decided the executive could order the
10:37 am
use of certain enhanced interrogation techniques that included waterboarding, stress positions, and sleep deprivation, as well as a host of other techniques which would and did result in death and serious debilitation of detainees. it was april 2004 when the public first learned about the prisoner abuse chronicled in the abu ghraib photos. then in june of 2004 information was leaked to the media that the department of justice had issued a legal opinions that stated enhanced interrogation techniques were within the law, and less they inflicted the kind of pain associated with organ failure or death. judge gorsuch reached out to the white house political director in november 2004, approximately
10:38 am
six months after these revelations, to say how we wanted to help the cause and be a full-time member of the team. then in march 2005 he reached out to the chairman of the republican national committee who vouched for gorsuch as a true loyalist and a good, strong conservative. judge gorsuch ultimately joined the bush administration in june of 2005. to our examination of his documents we learned that during his tenure at the department of justice he was involved in efforts to strip detainees of their ability to have habeas cases, defend and protect the bush administrations position on torture, an issue and expensive signing statement of the detainee treatment act. these statements were used to
10:39 am
highlight parts of the law the administration intended not to follow. importantly, we learned that judge gorsuch advocated for the bush administration to issue a broad signing statement. he said it could be used to, and i quote, help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy, and light of the mccain portion of the amendment. this statement clearly and in a formal way that would be hard to dispute later puts down a marker to the effect that the view that mccain is best read as essentially codifying existing interrogation techniques. nothing could be farther from
10:40 am
the truth. judge gorsuch's e-mail shows a knowledge of the bush administration's position on torture. also demonstrated he supported efforts to codify existing interrogation policies, such as waterboarding and other extreme techniques. in our written questions i asked again about his views on enhanced interrogation techniques. i know something about them. the intelligence committee while i was chairman had in classified status over 7000 pages with 32,000 footnotes the document all of this. i try to understand his opinions on right and wrong, and whether he was at all disturbed by what our government was doing. unfortunately, once again the answers i got were nonresponsive.
10:41 am
for example, i asked judge gorsuch what he meant when he suggested that a signing statement could inoculate the administration if they were later criticized for not making quote sufficient changes to the interrogation policy, end quote, based on the mccain amendment. judge gorsuch responded once again that he was, quote, a lawyer advising a client, end quote. and that his client, the government, was arguing that the mccain amendment simply codified existing policies. judge gorsuch's defense that he was only doing what his client wanted him to do. many of his colleagues, excuse me, of my colleagues on the other side of the aisle have praised judge gorsuch's qualifications, anderson question he is well educated and well credentialed.
10:42 am
but we are not just evaluating a resume. if we were every supreme court nominee passed unanimously, 100 to zero. rather, all of us evaluate not only their education and experience, but also their judicial philosophy, temperament and views on important legal issues. we do this because, if confirmed, and nominees decisions will affect the lives of all americans for generations. generations. and as i said, our job is to assess whether the nominee will protect the legal and constitutional rights of all americans. whether the nominee recognizes the humanity and justice required when evaluating the cases before him. unfortunately, based on judge gorsuch's record at the department of justice, his tenure on the bench, his
10:43 am
appearance before the senate and is written questions for the record, i cannot support this nomination. thank you very much. >> thank you. senator from utah. >> well, thank you, mr. chairman. if we are making a few comments about the nomination of judge neil gorsuch i want to remind y colleagues about the committees traditional practice regarding supreme court nominees. that practice was memorialized in a letter signed in june 2001 by incoming chairman patrick leahy and by myself as the day and ranking member on this committee. mr. chairman, i ask consent that that b place in the record at this point. >> without objection, so ordered. >> the letter states the district committees traditional practice has been to repeat supreme court nominees to the senate once the committee has completed its consideration, considerations, unquote. this letter was cited several
10:44 am
times last year by those demanding a hearing on the previous nominee, but it says nothing whatsoever about how the committee should consider a particular nominee. the best way to evaluate an individual nominee depends on many factors. last year we obviously faced some unique circumstances. this letter was irrelevant last year, it is certainly relevant now because we have completed our consideration of the gorsuch nomination. since only five current committee members were here in 2001, i wanted i wanted to make sure everyone was aware of our past practice. the conflict over the gorsuch nomination, it's not about whether our fellow citizens try to influence the presidents nominations or the stennis advice and consent. of course they do. from both the left and the right. anyone who thinks that specific left wing groups have not moved mountains and spent like mad to
10:45 am
influence past supreme court nominations has been living in a parallel universe for the last 30 years. nor is a comfort over the gorsuch nomination but whether as an obama had a right last you to avoid this nominee. though president does. -- no present district that's what checks and balances are for the constitution gets a president the power to nominate judges and kids of the senate the power of advice and consent on those nominations. both the president and the senate legitimately exercise their respective powers last year. the conflict over the gorsuch nomination is instead about two radically different ideas about the role of judges in our system of government. america's founders designed the judiciary to impartially interpret and apply the law. the judges did not make and cannot change to decide individual cases.
10:46 am
the law, not the judge, determines the results in the way to change the result is to change the law. the other ideas that deciding cases is a means to the end of judges addressing issues and advancing political interests. in this view, judges not only may but sometimes should change the law so that their decisions produce politically desirable results here the judge, not the law, determines those results and the way to change the results is to change the judge. judge gorsuch supporters and opponents agree on one very important thing. we both believe that he will take the law as he finds it and apply it impartially, refusing then his decision light of who the parties are or which political interest might be affected. i believe that's why he should be confirmed.
10:47 am
his opponents believe that is why, that's why he should be filibustered. and like america's founders, i believe that such impartiality and independence helps keep the judiciary within its proper role within our system of government. that role by design is necessary for the liberty that we now enjoy. judge gorsuch's proponents impartiality and independence as obstacles to overcome on the path to a fully politicized judiciary. that is why they demand that he prejudge cases, pre-comment on issues and take sides before cases even come before him. the democratic leader repeated over the weekend that if the nominee can't get 60 votes, the solution is to change the nominee. at least that is his current position, the one he takes each time the white house and senate are under republican control. put a different way, he wants the senate to do as he says now, not as he did then. that is not a principle.
10:48 am
it's just partisan politics. it is a very poor guide for the confirmation process. the choice we face is between impartial political judges, between judges who follow the law, those who attempt to control the law. judge gorsuch by any major is a superbly qualified nominee who is enthusiastically supported by those who know him best, regardless of their partisan or ideological views. he will be impartial, fair, and open-minded. he will be exactly the kind of justice that america needs and that our liberty requires. and you said support from some very liberal, very liberal lawyers who know how good he really is. and i hope that this committee will support him, and i hope the senate will support him. and you will become a justice on united states supreme court. >> senator leahy? >> thank you, mr. chairman.
10:49 am
and first i agree with senator feinstein. you make sure to follow the practice that we've always had allowing everyone to be heard, and i do appreciate that. we've made it the rule of this body and i think that's a good thing. we have on the agenda a couple of items and let me just mention briefly the nomination of rod rosenstein to be deputy attorney general. mr. rosenstein has spent 27 years in the justice department, the last 12 years as u.s. attorney for the district of maryland. yes, he has a reputation for integrity that is unusual for this administrations nominee, but if he is confirmed he's going to inherit a situation that no justice department nominee has faced since 1973.
10:50 am
an active criminal investigation into a sitting presidents campaign, and administration. every week as we know, new evidence surfaces indicating the trump campaign officials colluded with a hostile board power to influence the election and undermine our democracy. numerous senior officials from the trump campaign have been caught lying about their communication with russian officials. even the attorney general, who would be rod rosenstein said boss, was forced to recuse himself after the press revealed that he misled this committee, this judiciary committee, about his own context. anti-medic in the white house has shown they are not going to respect the independence of any investigation.
10:51 am
so a member assumes the role of deputy attorney general in this initiation will face extraordinary test and integrity. it is against this unprecedented backdrop that we both consider mr. rosenstein said nomination today. in fact, anyone paying attention, let alone someone to me with the justice department understands the situation calls for appointment of a special counsel. americans deserve an investigation, not only independent but one that might inspire public confidence. the issue is too important for us to skew for partisan motivation. contrary has to come before party. now mr. rosenstein ensured me and others on the matter of russian interference in our
10:52 am
election, he is on the american side, not on the russian side. and i trust that he will hold to do that statement. but if confirmed he will also face a critical test whether he will continue to support the justice department's violent crime initiative, focus in on the most serious criminal penalties on the most serious offenders. and so i just wanted to test it once you do know, mr. chairman, i will vote in favor of mr. rosenstein's nomination today. the other matter we have on the agenda of courses judge gorsuch. i said weeks ago as approaching this nomination with an open mind. my vote on the supreme court nomination has never been about partisanship. i have evaluated every nominee.
10:53 am
i have voted to confirm six supreme court nominees of republican presidents. unlike committee republicans treatment, unprecedented treatment, of chief judge merrick garland, i take my constitutional duty to an independently evaluate a presidents supreme court nominee seriously. and, of course, that includes judge gorsuch. for those of us who hope 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, concerns whether bring a partisan agenda to the court. judge gorsuch did nothing to lay those fears. in fact, i can say he solidified them. i cannot recall a nominee, and i
10:54 am
have voted on every member currently in the supreme court, plus many before, 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 i asked him were not intended to be difficult. several could have been answered by any first-year law student with ease. yet unless w we're asking about fishing or basketball, judge gorsuch stonewalled and avoided any substantive response. he was actually excruciating -- excruciatingly evasive.
10:55 am
his sworn testimony, his approach to compliance with its committees historic role in the confirmation process has been patronizing. it's a disservice to the american people. and it's a blight on the confirmation process. judge gorsuch plainly did not want to judge -- prejudge potential cases. that's a valid concern. we all accept that, but only within reason it should not be used to evade questions on long federal precedent or on the meaning and purpose of constitutional provisions. he wouldn't even state whether he agreed with certain landmarks supreme court cases such as brown v. board of education. is there anybody on this committee or elsewhere who would disagree that brown v. board of education? he refused to say whether -- equal protection clause applies
10:56 am
to women. he refused to say whether the framers of the first amendment believed permit the use of a religious litmus test. he refused to provide information regarding a selection by extreme special interest groups and a billionaire businessman. and he even refused to confirm whether he will continue to recuse himself from matters involving that billionaire, as if it has done on the tenth circuit, even if presented the supreme court with exact same facts. now, i actually hope that judge gorsuch would be more transparent and forthcoming in written questions to carefully consider these questions away from the lights and the camera. but he again declined. he refused to express that congress has war powers. even though every high school student knows the constitution
10:57 am
gives congress the power to declare war. again ms. stated the whole citizens united in an attempt to evade my question about congress is the ability to enact campaign finance laws. judge gorsuch provided no answer to all the questions regarding supreme court's decision in shelby county, which guided the voting rights act. he refused as questions about women's rights to obtain contraception. he again refused and whether the first amendment prohibits the president from imposing a religious litmus test, even when the trump administration has claim such a litmus test is not an issue with this travel ban. my family, i was brought up to believe in the first amendment. allows you to practice any religion you want, or none if you want. and that we live in a country
10:58 am
that does not impose religious tests. and so i think that judge gorsuch nonresponsive test when he makes it difficult for this committee to fulfill its constitutional duty to examine its judicial philosophy and if i went his nomination. perhaps we should not be surprised the nominee would not respect the role of this committee after senate republicans rank partisanship, to consider chief judge merrick garland. my distinguished colleague from utah, mr. hatch, has written a letter into the record. welcome he believes that i guess back then, but not now. because judge gorsuch was not even afforded, or chief judge merrick garland wasn't even afforded the courtesy of a hearing. some members even refused to meet with him.
10:59 am
what a shameful state 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 his amount is entitled to confirmation. unfortunately the majority leader believes that, too, and his most recent statement amplifies that. you know, previous nominees, both republicans and democrats, respected this committees constitutional role by answering questions in a substantive way. one law professor wrote in the atlantic that judge gorsuch was condescending, evasive and even
11:00 am
dishonest. there is not much to say that he -- chastise the committee and a gentoo but nonetheless champion style. that description befits a nominee who the white house chief of staff state has the vision of donald trump judge gorsuch should not to do enough to prove mr. previous wrong. in fact, he said that marriage equality -- [inaudible] but refused to say the same thing about women's rights to choose. that is telling considering it's the same position taken by president donald trump who promised time and again to nominate justices who would overturn roe v. wade. in fact, on this issue, judge gorsuch claimed his personal views did not medically refused to discuss it. in the article in the atlantic, judge gorsuch applied the role
11:01 am
of a judge is quote a job which calls apparently for neither values nor any firm connection to human life as it is lived. chairman, ask the article entitled the fundamental dishonesty of the course of cheering the included in the record. >> without objections were ordered. >> because actually the american people know better. certainly the people here from in vermont do. we know the court decisions, special supreme court decisions are not simply detached applications, a neutral principles. if they were, all judges would reach the same results for the same reasons, but they do not. legal decisions are not mechanical. they are matters of interpretation, but they are often matters of justice. one supreme court justice said more than a century ago, when we
11:02 am
take our seats on the bench we are not struck with blindness. and forbidden to know as judges what we see. now whether you acknowledge or not judge gorsuch record says a lot about his judgment and his sense of judgment. policy wrote the justice department as senator feinstein has noted, he embraced fraught and discredit assertions of executive power. as the judge he twisted statutory language to limit the rights of workers and women and children with disabilities. he reached for broad constitutional questions that were not before him in order to advance his agenda. judge gorsuch complained about liberals, but, but he had no problem rubberstamping the social agenda when he wrote that employers could control their
11:03 am
employees access to contraception. when the far right groups look at the record, they like what they see. the leader of that process was driven not by quote who's a really smart lawyer who's been really accomplished, close quote, but by someone quote who understands these things like we do, close quote. and we know what these groups, billionaires who fund that have a clear agenda on this anti-choice, anti-vibrant, pro-corporate. these groups are confident that judge gorsuch shares their agenda. well, that should concern all of us. i thought a lot about this nominee. i thought about what i could 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 and
11:04 am
knowing that my own party leader was going to oppose him. but i also believed his record as a judge of the time showed a commitment to restraint and minimalism. the other democratic senators voted the other way, and i respect that. but chief justice roberts record lobby, taken at his word that he did not have an ideological agenda. i said then that a vote to confirm requires faith of the words he spoke to us had meaning, close quote. compared to chief justice roberts as a johnny between the words of judge gorsuch spoke to us and his actual record. when viewed in isolation, perhaps his words would appear satisfactory. but when viewed in the context of his troubling tenure in the justice department, his unprecedented process by far
11:05 am
right interest groups and his judicial record evidencing a partisan agenda, then they are unconvincing. these are extraordinary times. this is an extraordinary nomination. last year this committee tarnished its reputation. in 100 years of bipartisan tradition to do the majority leader donald trump's partisan bidding. senate republicans held a supreme court vacancy and an eminently qualified nominee hostage with the sole and expressive intent to deny president obama an appointment to the supreme court, an appointment that he had every right by precedent and by law to make. now since taking office, president donald trump has focused his attention on targeting the very communities
11:06 am
most at risk by his choice for the supreme court, nominee who will 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 towards confirmation. even to deprive senators of a full debate on the senate floor. the majority leader has promised to use whatever tactic is necessary to get his way. to make sure that donald trump's nominee is confirmed, even if that means forever damaging the united states senate. i respect this institution as much as anyone. i never expected to be long enough to become the dean of the senate, but i have. for those 42 years, i devoted
11:07 am
myself to the good the senate can accomplish. but i cannot vote solely to protect an institution when the rights of hard-working americans are at risk. because i fear that the senate i would be defending no longer exists. i've often said that the senate is at its best can be and should be the conscience of the nation, but i must first and foremost vote my conscience, vote today and later today, by conscious will not allow me to ratify the majority leaders actions. not last year, not this year. i will not, i cannot support his nomination. thank you, mr. chairman. >> senator graham.
11:08 am
>> thank you very mu ch, mr. chairman. i appreciate the way you run the committee and we have had a spirited days of talking about judge gorsuch i will vote for him with a very conscious for whatever that matters -- conscience. one thing we need to look at is the 88. i do invest everything y'all saw. they interviewed 5000 people. 500 people within closely, 900 page report that puts them at the top of the legal profession. and i think they missed the part about where he yearns for the days of plessy v. ferguson. actually i missed that, too. i don't know what hearing y'all were attending. to say that this man somehow wishes brown v. the board of education wasn't decided, somehow wishes for the days of pre-griswold is a bit of a stretch. here's what he said.
11:09 am
cases in controversies are his lice work. you know, you just don't drop by the supreme court and say i'd like to get rid of brown v. board of education. where do i go? there's a system for a case to get to the supreme court. that system is pretty well established. when it came to griswold, he pretty well explained the system. it means somebody somewhere would have to pass a law outlawing contraception is between married couples, some politician would have to do that somewhere. somebody would sue, and the supreme court would have to take the case to change griswold. and he said i can imagine that crazy scenario that one, we would take the case and somebody would bring, with pass a law going back to the days before griswold. but here's the deal. if all that happens, shouldn't
11:10 am
he listen to what society had to say? if the supreme court decided to take that case, which they wouldn't, is some politician somewhere could convince other politicians to go back to that. , the point is to suggest that judge gorsuch somehow has in his heart a disdain for brown or griswold because he won't did he answer that you think he should give is a bit of a stretch. and, quite frankly, unfair to the judge. so with that one successful filibuster of a supreme court nominee, and that was bipartisan. by the end of the week that will still be the case. we will not have a successful filibuster of a supreme court nominee, because if we have to we will change the rules, and it looks like we're going to have to. i hate that, i really, really
11:11 am
do. senator schumer who is a good friend, we work on a lot of things, keeps talking about reasonable and mainstream, as if the knows what mainstream is on our side of the aisle. do you have any idea how offensive i find that comment in light of what i did with voting for stoudemire and kagan? i thought they were reasonable. i thought a mainstream. i thought they were progressive in the role of president come in the mold of president. he sure democratic base that when he picked atlantic kagan, she's a progressive in the mold of a bomb himself and i expected that. i expected them to be people that president obama would choose, not somebody i would choose. the only thing i ask of these two fine ladies are you really qualified for the job? get the character, the tip of it, the judgment? can you meet the federalist 78
11:12 am
test? i thought they did with flying colors. people in our side, some outside groups, some people inside the senate try to suggest that elena kagan was unfit for the job because when she was working at harvard she supported moving the rotc unit off-campus. well, i didn't like the fact that they kicked the rtc unit off-campus. but if you look at the way she has lived her life and wish you perform her duties as a judge and solicitor and everything else, it was hard for me to believe she was unpatriotic. therefore, not qualified to sit on the highest court of the land. it just may be believed she was in harvard and thinks like people at harvard. about rotc. nothing more, nothing less. sonia sotomayor, she gave a speech one time about judges, talked about the more diverse the court the better and said white man will have a hard time understanding some of the
11:13 am
situations that exist in modern society because they are white men. so that created a big dustup on our site that some of all of a sudden she hates white men, she's teresa. the reason i didn't buy that is because the way she lived her life. she interacted with a lot of people overlong bit of time, et al. then had the same view of her. that she's a well-qualified, extremely capable, articulate, good person who had been a mainstream judge. so i didn't buy for one second because she made a speech somewhere about diversity that all of a sudden she was unfit to serve because that may suggest she can't be there to white men. if you would look at her life at all and listened to what people had to say about her, you would realize pretty quickly that she was qualified and wasn't a racist. so when i hear senator schumer say change the nominee, don't change the rules, that's an absolute slam on a fine man.
11:14 am
we are not going to change the nominee. when it comes to president trump's judicial philosophy, you know what it is you are doing better than i am. i have no idea what his judicial philosophy is. he spent a record a lot, i can tell you that. he appreciates the courts, probably more than any president in history. but here's what i do appreciate about president donald trump. he listens to people who understand what a conservative jurists is all about. he listen to a lot of people. and he came up with a list that i applauded him on. i can vote for any 21 people he put out before the election, and they say he's under investigation, he shouldn't be allowed to pick. i bit of a stretch but let's say it's mike pence p or q is to pick? let's say it is paul ryan, lets that i've got my knickers in a more support than accident running for president. who would i pick? [laughing]
11:15 am
i would have picked him. because you can't do any better over here. i think sotomayor and kagan were great pics. i think neil gorsuch is a great pick by conservative president will be a great member of the court. and it's going to get there. there's nothing wrong with him. there's a lot wrong with modern politics in the senate. and we can all look in a mirror, find some blame somewhere. the bottom line here is that when it comes to qualifications, the aba said it best. the rating of a well-qualified is reserved for those sound to merit the committees strongest affirmative endorsement. so when it comes to brown v. board of education, griswold, that's just a bunch of political theater. i think the aba saw the judge for who he really is. mainstream, competent, highly qualified. to all the people who serve with george -- judge gorsuch in a
11:16 am
variety of roles throughout their life and his, they told us without any hesitation he is one of the finest people they know. so when nancy pelosi says if you breathe air, drink water can eat food, take medicine or any other way interact with the courts, this is a very bad decision. i think that says more about nancy pelosi that it does judge gorsuch. so from a qualification point of view, there is no argument. from a character point of view there is no argument. from the outcome of the election, i am glad that president donald trump chose neil gorsuch turkey could not have done better. and they did not expect him to win. this is what i said. march 2016 i have been telling everybody on my side she's going to pick somebody probably more
11:17 am
liberal than president obama is going to send over in a few days. of course carlin. i'm going to vote for that person i think is called flickered the president deserves the right to pick judges. that gets us back to garland. joe biden told us what he would do if a nominee, if a vacancy occurred in the last year of bush 41 term. [talking over each other] about a republican going to retire. here's what joe said. if someone steps down i would highly recommend the president not name someone not send up a name. if bush did sin so it up i would ask the senate to service a consider not having a hearing n the nominee. that was se said at a time whene primary process, the election was ongoing in 1992, the last year. look at the history of the senate. i think there's one time or a president that one part and the set of another that summer was confirmed in an election year. the bottom line is i don't think
11:18 am
judge garland was treated different or unfairly than what y'all would have done. and let me just say this to your faces. if the roles were reversed audibly one minute that you would given the accommodation you are asking us to a given garland, given the behavior of what you did in the past. so this idea that somehow that if this had happened in bush 433 leicester y'all would have allowed him after the primary season was afoot to pick somebody and put them on the court and defy history is just laughable to me. given what you have done. senator schumer and a few others leading wholesale filibuster everything bush 43 in his first term. i was in the gang of 14 we lost to circuit court judges as a result of the deal, but kickstarter circumstances test held until 2013. and in 2013 with the concurrence of president obama because i called them and asked him please
11:19 am
don't do this, he says i've got to come y'all have been unfair to me, i don't think the facts bore that out. just you change the rules for everything below the supreme court. you had a chance to grab power and you grabbed it. so when you complain about garland as the course is complaining about the fire, as far as i'm concerned. doesn't bother me one bit in terms of the way judge gorsuch was triggered, even though he is a fine man, given the way the senate, given that joe biden view, given reality. what does bother me is where we are headed. here's where we are headed. we are headed to a world where you don't need one person from the other side to pick a judge. and what does that mean? that means the judges are going to be more ideological, not less. it means that every senate seat is going to be a referendum on the supreme court, and that if
11:20 am
you ever wondered about how important the senate is, you're going to find out it becomes increasingly more important now because if you don't have the majority, you can't nominate and pick the judges because you can't count on anybody from the other side helping you because they're not required to do so and they don't have to do so. so i think the damage done to the senate is going to be real. so as to this fine man, i regret that he had to go through some of the things he had to go through. the hearing actually was well conducted i thought. a lot of you guys asked really, really good question. and some of you asked questions you know he couldn't answer, and some of his answers i think were taken out of context. if anybody really believes that this man wishes for the days of the country without brown, i think you're not being fair to the judge. what he's telling you is i decide cases and controversies. and as to roe v. wade, it is
11:21 am
the law of the land, but i can assure you the rights of the unborn have not been settled. that we're going to fight on our side, that we're going to push the concept that at 20 weeks our country is not going to allow wholesale abortion on demand where we are one of seven nations in the world that allows an abortion in the fifth month of pregnancy. in that case if it ever becomes law in the senate or this president will sign the law, will never get it to the senate. some judge somewhere will have to listen to the case in light of roe. all i'll ask him to do is listen to as excerpts going to be casen controversies around the unborn for a very long time to come. here's what i can tell you about judge gorsuch. he will listen. he applied the president and the very emotional case involving autistic young man turkey applied the law that existed in his circuit. that's exactly what he should
11:22 am
have done. so as to detainees, it's not just somebody in abstract i'm talking about. i know the man. i know exactly the role he played. i know that the senate voted for our men, my intimate 84-14, which said that the combat status review tribunal hearing would be appealed to the d.c. circuit court, as an adequate substitute for habeas. the court disagreed 5-4. i know that he said in front of the world that the treatment act outlaws waterboarding and that no man or women is above the law. i know exactly what senator mccain said about his own and then it, because i helped him draft it. and rather than reading a relatively long quote he says this amendment just codifies the current practices of the bush administration. i know a lot about signing statements and i know a lot
11:23 am
about neil gorsuch. i can tell you as a lawyer he was honest, trustworthy. he was smart and he faithfully represented his client, no more, no less. so i will vote for him. my conscious is clear about a lot of things. i remember all the nice things said about me. when i decide to be the only one on our side to find sotomayor and taken qualified to sit on the court. i remember harry reid saying i wish more people were like senator graham. maybe in the future there will be. i say that knowing my faults. i'm a republican. i'm partisan at times, like all of us. i've tried to play fair when he came to the court. tried to honor elections
11:24 am
regardless of whether or not the person i voted for one. and i haven't voted for anyone who is one in 12 years, or don't follow my political advice as to who to vote for. what i do believe i am following the constitution when i voted for sotomayor and kagan, and the traditions that have been in existence for 200 years. antonin scalia got 98 votes. kennedy got 97. justice souter got 90. clarence thomas 52, 48. we all know what that was about. ginsburg and 96. breyer 97. roberts 78. judge alito 58. sonia sotomayor 68. elena kagan 63 this would be the last person that will be subject to a filibuster, which was in effect in 1948, because of the
11:25 am
senate traditions are going to change over this man based on the times in which we live. and i find ironic and sad that we're going to change the rules over somebody who has lived such a good life, who has been such a good judge for such a long time. this says more about the senate that it does judge gorsuch. >> senator durbin? >> thank you, mr. chairman, and thank you for your fair administration of this hearing. i'm honored to represent the city of chicago and we got some basic stories that are taught to all newcomers on the political scene. one of them involves former man, former judgment of us knew personally. he was a law student at of chicago and he decided in 1948 he wanted to volunteer to work
11:26 am
on local campaigns for paul douglas would not state senate and amber stephenson for governor. so we went to the fifth ward headquarters. ward headquarters where the figure. they were innocent of chicago the word committeeman timothy o'sullivan was there and this new law student walked in and said i'd like to volunteer to be part of the douglas and stephenson campaign. o'sullivan took the stump of his cigar from his belt and said who sent you? he said nobody sent me. sullivan said, we don't want nobody, nobody sent. he told that story because it was kind of gets to the heart of politics in that city and a lot of other places and it's a fair question, isn't it? is it a fair question about neil gorsuch? who sent him? why are we considering this man for lifelong appointment to the highest court in the land? and the answer is obvious. we know who sent him. i have to agree with senator
11:27 am
graham. i don't know what donald trump's political, i know his political philosophy loaded i don't know his judicial philosophy as president. but we sure do know the judicial philosophy of the federalist society which was given the responsibility of coming up with a list of nominees to filthy fie scalia a vacancy on the supreme court. they did it. candidate donald trump announced it, that list, which has been for two of 21 names. in fact, the federalist society takes pride in the fact that they say that under republican presidents, every appointment to the supreme court has either been a member of the federalist society or cleared by the federalist society. think about that for a second. i don't remember seeing the federalist society in the constitution, but it come to put a constitutional role when there's a republican president. they picked the supreme court nominees. if you ask them, what do you use as a criteria?
11:28 am
out the back to another chicago story for metal to work for, name was cecil. he said for politics, there's a real reason and a good reason. what's a good reason that federalist society tells us for the selection of nominees? because back to speech in 1985 by edwin meese to the federalist society where he tried to come up with some basic definitions of what they were all about. he said they were rooted in the text of the constitution as illuminated by those who drafted proposed and ratified it. he called this federalist society standard a jurisprudence of original intention, contrasted it with the misuse of history by jurists who saw the constitutions sphere things like quote concepts of human dignity, close quote. of which they were trying to constitution into a charter for judicial activism. have we heard these phrases, originalism, judicial activism? over and over and over and we
11:29 am
are told rest easy, neil gorsuch is an original list. but if you're going to get into a real analysis of what constitution originalism is all about, be sure to read the words of justice william brennan who said that anyone who would ever studied in the archives knew better than to believe the records of the constitutional convention and the ratifying conventions offered so certain exact and singular of verdict as that which edwin meese expected to find. brendan called the idea that modern judges could discern the framers original intention quote little more than arrogance cloak as humility, close quote. so excuse me if i'm skeptical about the good reason why the federalist society gets to pick judicial court, supreme court nominees for republican presidents. perhaps let me suggest a real reason. who belongs to the federalist society? who finds the federalist society?
11:30 am
to appointment over and over by senator whitehouse, and other donors to remain anonymous at some to publicly disclose that they contribute. who would they be? try the coke brothers, try the richard mellon skate family foundation, try the mercer familcounty which i'm reading me and more about. billionaires who believe they want to control this political process. do they have an agenda? of course they do. we know it. we see it all the time. and that is what this decision process has become. ..
11:31 am
not just the corporations cannot provisionally. can you demonstrate you will be an independent check on this president or any president? can you repair to disappoint the president who chose you in the right and groups that have taken credit for your name coming before the committee. you need to be forthright about what your values are. today's opening day at the baseball season a few blocks away from here and unfortunately for those four questions, judge gorsuch win over for. he told us he wants to be judged based on its own record, not the views of donald trump or anyone else. let's look at his record 10 years on the circuit bench. case after case come a favorite
11:32 am
corporations and employers and special-interest elite. the very folks who sent his nomination to this committee. they make them over workers, consumers cannot people with disabilities and victims of discrimination. it follows the text of the law and the original intent of the law and yet we find clear patterns very bad precedent and selectively focus on some parts of tax and not on others. alphonse madden has become legendary. his poor, frozen truck run interstate 88 west of chicago in january, 14 below, given a choice between freezing to death and sitting there and waiting for us to set come away for a repair man or dragging a disabled trailer out on the interstate and endangering his life and the life of others. my friend and colleague senator franken said it was an absurdity and as he reminded us time he specialized in absurdity in a
11:33 am
previous life. in this situation can the seven judges a look at alphonse madden's plight did this man did what any reasonable person did and he should've been fired for it. the one judge you didn't see it that way, neil gorsuch did the luke p. case came out in the midst of our hearing in this room. the supreme court unanimously, an opinion written by justice robert unanimously struck down the very words written by neil gorsuch mccain stood up for a disabled child in his education. i have to disagree with my friend from south carolina. he was not just applying precedent. read the exchange between neil gorsuch and senator called the chart. he was doing more. he was reaching into another circuit and embellishing the standard but the word with which clearly is the supreme court found that decade like luke p.
11:34 am
would get no education at all. grace when we didn't talk about too much in this hearing. we should have. fester kansas state university diagnosed with cancer facing a bone marrow transplant she was given six months off for this amazing, important and dangerous operation. she's supposed to return to the classroom at the end of six months but there is an influenza epidemic on campus and she said to the people at the university and afraid to go back. and they said if he don't return to the classroom, you're fired. it is judge gorsuch who wrote the opinion that said that's a reasonable decision by kansas state. i don't think it was, but i think it's a reflection on the values. nlrb versus community health services distorted precedent authority and mandate workers unfairly locked up at fullbacka. keeping our wages.
11:35 am
i won't go through the list of cases. we read them all. they paint a troubling picture of judge gorsuch and values. judge gorsuch supports natural philosophies and time and again lead to the same outcome proved worker, victim and consumer. the corporate elite wing. it's also repeatedly shown he does not want to follow simply the law. he wants to change it in some cases. john king came here, testified under oath in under oath in support event that he made a revealing comment at the hearing. judge gorsuch is the only judge i know, only judge at home i'm aware who has written both majority opinions and concurring opinions in the same case. why would a judge do that? consider one of the cases, gutierrez versus persuade other judge gorsuch wrote the majority
11:36 am
opinion, then used a conference to call for abandoning the chevron doctrine which we spent a lot of time talkinabout. that's an idea that fits well with some people who want to deconstruct the modern administrative state for reference read write part. but it would depend on agency's liability to enforce consumer protection and environmental laws. gorsuch told us time and again about the efforts to ensure indigent defendants are appropriately represented. to get his record. when it comes to sixth amendment, the perfect record. 52 opinions judge gorsuch never underlined, condit attorney provided ineffective assistance of counsel. williams versus john upon note prejudice for a defendant and his attorney said he quit if they didn't accept a plea deal and also told his client would be perfect to accept the tenure plea agreement instead of life without parole.
11:37 am
i asked him about that case in a still thought that man had good representation and a fair trial if he said fair trial if he said it. two republican appointees disagree and judge gorsuch reasoning than the court held to have a plea deal. judge gorsuch has provided no raschein cb and independent check on this president or any president. we learned a lot about enough that the justice department. i won't reply background which is handled so well by senator feinstein and leahy. for my republican colleagues who never tire of bringing that judge gorsuch 2006 confirmation, may i remind you of the obvious at that time we didn't know about judge gorsuch struggling record at the justice department and we certainly didn't have a decade of judicial decision by judge gorsuch had the plane filters big business and away from american families.
11:38 am
the art of evasion is certainly one that is used by most nominees before us. judge gorsuch developed to a new level. virtually nothing at this hearing to these concerns many of us had about chief of staff declaration that he was a man with the vision of donald trump, whatever that means. no one has illusions about what's going on here. when people talk about the american bar association, they can be well-qualified. the first thing that comes to my mind is merrick garland. if that was a standard, we would he emit in this formal session. but celebrate the first anniversary of the year on the bench but were not. we are here because of republican strategy and the rest of the republicans to lie and if they can see up republican president. a lot has been said about the
11:39 am
damage that may be done to the senate but this nomination and of those that would take this week. it breaks my heart to guide us in this position. i love this place. i've been here a big part of my life and i can remember things about it at senators who are a singer as i am, maybe more can remember about this institution, what it used to be like, what the standard used to be, the pride we take in the senate. but then came the onslaught of filibusters, i'm precedent in the history of this body. republican majority at the time, even in the minority status did everything they could to stop the orderly consideration of bills and nominations. leading to the point of the second most federal bench of the land, d.c. circuit court of appeals was basically frozen. they couldn't fill vacancies because of the threat of filibusters for the nomination and that's what led to this well discussed rules change.
11:40 am
announcer brings us to this point. by senator fred says traditions will change this week. and honestly they started changing a long time ago. i just hope at the end of the day we can resurrect what this institution was all about and should still be all about. this nomination does not give us that chance unfortunately and we know what the fate of this nomination is like to be. mr. chairman, i have comments on the other two nominees. i nominees. i found the outset he would ask us to withhold the statements. >> you don't have to, but i'm going to. >> at the risk of going on and i walk on. i'll put the statement in the record. that rosenstein tyrannized impressed by the fact this man survived republican and democratic presidents and was u.s. attorney. he certainly comes with high recommendations from senators
11:41 am
from the state of maryland. i was troubled when he said he hadn't read the intelligence community assessment on russia's interference in our election. he responded to my march the 10th letter and is not read the report and he had no reason to doubt the intelligence community assessment. thank you for that. he also clarified recusal of attorney general session and i thank him for that. he would still bear responsibility for the russian announcemannouncem ent at the justice department investigation into russia's cyberwar against the united states. i hope they'll appoint a special counsel for that purpose. he also have responsibility over criminal justice suffers that the department of justice that i am concerned about sentencing guidelines which sessions -- attorney general session has now suggested. i am going to vote him out of committee come withhold my final vote on the floor until there is some clarification about a development this week. steven cook, former president of
11:42 am
the national association of u.s. attorneys has been tapped as the deputy attorney general and top deputy on criminal justice policy. the media reported that meet the hardliner jeff sessions picked to carry out his violent crime crackdown. steve cook, former federal prosecutor supports policies calling for lengthy prison sentences come end quote. members will remember mr. cook from his 2015 testimony stridently opposing the bill which the chairman of this committee and i support that as reforming corrections act. mr. brand, let me say again as briefly as i can. i believe i have supposed it for three reasons. she spent much of this decade were as chief counsel for the u.s. chamber cover u.s. chamber program asker should recuse herself to matters involving the chamber, she would not make that commitment. we need that assurance before i can vote. second, i'm concerned about refusal to answer key questions about civil rights and i'll put
11:43 am
those in the record for reference. third, ms. brand refused to say that the man-made climate change is real but it is a public interest in addressing that. troubling for a person who would oversee the justice department environment and natural resources division. publisher ms. brand shall be treated better than president obama's nominee stuart ellery who was never given the floor vote by the senate republicans. ms. brand locator bow, but i will vote no. i yield the floor. >> your statements will be put in the record. senator corning. thank you, mr. chairman. for the way you conduct did this here in denmark a and giving up a chance to express themselves than listening across the aisle, i can't imagine the pressure that they are failing to oppose this nominee. but if they are going to oppose neil gorsuch to the supreme court of the united states, they'll never voted never
11:44 am
support a nominee of this president because in the end i think that is really wicked airboat the most. we keep hearing about merrick garland, but i guarantee you that hillary clinton had won the presidency, we would never hear merrick garland name again because she would've had the opportunity to pick her own nominee to the supreme court in the chairman's exactly right. we essentially made this presidential election on november the eighth a referendum on which of the candidates you want to pick the nominee to the supreme court to fill the vacancy left by the death of justice scalia. the american people answer that question and said they preferred president chung tonight at selection as opposed to a potential president, hillary clinton. so why do not envy our colleagues who know they have it
11:45 am
qualified, honorable, good public servant in this nominee. judge gorsuch is an outstanding choice that the president and given the circumstances indirectly by the american peep hole. i'd urge my my colleagues to recognize those obvious realities and support the nominee. failing that, it encouraged them at least to get this nominee an up or down vote on the senate floor. let me go back and just cover briefly some of the criticisms of the nominee. first, our colleague said that the judge won't give me an answer to a hypothetical question about how i might rule in a future case. but they well know that every supreme court nominee has appropriately refuse to answer those questions. how would she feel if a future party to a lawsuit the judges
11:46 am
scored the judge has told you how told you had a cool if you had a chance to present your case. you wouldn't feel like justice is being done and it now. that's why judges routinely refuse to answer questions about how they would vote and how they would render judgment in future cases. we saw that from justice sotomayor, justice ginsburg, all of the judges who have come before the committee has held that same standard. that one clearly doesn't hold water. like i said i'm only for the lot about merrick garland, but i doubt we hear anything about merrick garland began if hillary clinton had one. i will leave it at that. then they complained about by groups. federalist society, other nefarious organizations supposedly that are exercising their rights under the can't situation to speak freely.
11:47 am
and to support a nominee who they believe will faithfully execute the duties of the off this. how outrageous. how outrageous that somebody would actually have the freedom to advocate on behalf of a nominee to the supreme court. i'll tell you the alternative that our colleague suggest is not the kind of america that i want to live in, one where the government decides who gets to speak and who does not get to speak. our colleagues may not remember, but i remember a judge gorsuch talked about the 1988 k. scott naacp versus alabama. they are, alabama site to get the membership list of the naacp for what purpose? you can guess for what purpose.
11:48 am
what did the court hold? the united states supreme court said under the first amendment to the constitution committee of the freedom to assess the anybody you want to. and if the government is going to use that to intimidate you, too perfect if from the freedom of association, that pilot is duchenne of the united states. all we hear from our colleagues is about dark money, unidentified contributors. there's $5 billion spent by hillary clinton, donald trump and their friend in the last election. i billion dollars and use it to $10 million being spent on this nomination influencing how people will vote. it is just ridiculous. well, let me repeat or maybe we stayed in a little different by
11:49 am
little different ways, but senator graham and others have said about how we find ourselves here. there has never been a partisan filibuster every supreme court nominee in american history. never. this will be the first. sometimes people want to talk about nate and 68. well, that was a bipartisan failed cloture vote. the judge for days after his nomination was on the war asked that his name be withdrawn and ultimately resigned in disgrace because of ethical lapses. that is not precedent. for neil gorsuch. that is just an excuse. i daresay that if they are unacceptable there will never be a nominee by this president that she will find acceptable. never.
11:50 am
how did we get started with filibusters of judges? well, we know there is every partisan filibuster filibuster of a judge to the supreme court before this one. and actually, it was an innovation of our colleagues across the aisle. after the 2000 election there is a famously reported meeting of people like laurence tribe and chuck schumer and other liberal act evasive figure out george w. bush won the election. how can we stop the nominees from getting confirmed? they dreamed up this idea that we can say that instead of a majority vote, which we all thought the constitution required, that we can say you can't get confirmed unless he does exceed the. another risk him in the senate rules somehow preempt the
11:51 am
constitution itself. well, that precipitated quite a crisis in the senate i recall. senator graham talked about it. ultimately there is a bipartisan group of senators come a so-called gang of 14 had entered into an agreement that saw most of the president's nominees being confirmed and i think two of them not confirmed. so that is how we got darted down this path of filibustering judges. as their democratic colleagues after the election of 2000 when they wanted to stop the nominees from george w. bush from becoming confirmed. what was the next iteration of that? after they cooked up this idea in 2013, they found it to be an impediment to their desire to pack the d.c. circuit court of appeals. the court that primary jurisdiction of the administrative state during the obama administration.
11:52 am
the sole purpose of that was not to fill the bench with people where they were needed and so-called judicial emergencies because people were hacked up and couldn't get a hearing in court because there weren't enough judges. this is probably the least hard-working circuit in the country get a site to pack the d.c. circuit court of appeals for no other reason other than to rubberstamp president obama's administrative state. we didn't like that very much to say the least, but that was the latest iteration. and now it's apparently come full circle. 2017, never before a partisan filibuster any supreme court nominee until this one and our colleagues say this is going to be the end of the senate as we
11:53 am
know it. now, this will merely return us to the status quo before they are racked at the 60-vote requirement during the administration of george w. bush. theoretically you could filibuster judges but it just didn't happen. clarence thomas was confirmed the 62 votes. there wasn't even a vote on cloture. no threat of filibuster. so we come full circle, mr. chairman. some say that when we could arm judge gorsuch, somehow that will be the dad of the legislative cloture requirement. i would just remind our colleagues that we treat nominations and legislation differently for good reason. the senate is supposed to be the
11:54 am
cooling saucer when it comes to the just patient passed by the house of representatives and that is an important role, particularly when there is legislating for 320 plus million people. when the question is up or down on a nominee, you can't change that by amendment. there isn't any consensus building. you have a binary choice. yes or no. it's a far different issue. so i disagree with those who somehow say this is the end of the senate as we know it. this is a restoration of the status quo before a democratic colleagues directed this artificial 60-vote requirement. so i am proud to say that this good man and this good judge who suffered himself to serve our country on the united states supreme court will be confirmed by the end of this week and he
11:55 am
should be. >> senator whitehouse. thank you, mr. chairman. let me join my colleagues in expressing my appreciation to you and the staff for the whole sum and collegial way which you've conducted this hearing. let me say that there is actually another way to do this. nothing prevents a press event from announcing a consensus nominee for the supreme court with both senate leaders standing beside him. nothing prevents that. this president chose to go a different way, choosing a candidate with less put together by what i consider to be front groups for big special interest. there is a significant backdrop to that concern. let's go back to 1954 for
11:56 am
starters when his first year on the bench, chief justice earl warren was faced with the monumental case, brown v. board of education of topeka, kansas. earl warren admitted that the court had to finally get her justice harlan carl in plessy and finally start down school segregation across the country. drawing on his experience in politics, chief justice warren also knew that such a far-reaching decision needed unanimity among the justices on the court and the chief justice worked through draft after draft of the opinion until he had forged that essential content is. this example is consensusbuilding appears to be lost started under chief justice rehnquist, but increasing under chief justice robert
11:57 am
conservative appointees on the court, consistently deliver for the republican party and big business and a recurring and disturbing array of 5-for decisions. those decisions when you look at their eyes have been anything but conservatives in the judicial steps. they overturn precedents. the passats statute by wide bipartisan margins in congress. they ignore original meaning of they stretch to reach constitutional issues. rather than calling and strikes are working to develop narrow ruling that do in fact build consensus, when there are five republican appointees on the court in recent years, they have can instantly delivered 5-for strikes down to republicans into
11:58 am
big business. in elections and a 5-for decision, the court held political gerrymandering claims that are not reviewable, paving the way for the red maps deified gerrymandering product they gave republicans control of the house against the majority vote of the country in 2012. shelby county and barlett b. strickland, the conservatives knocked down protections and to target minority voters with what the fourth circuit theater called surgical precision. remark by up to four cases, citizens united unprecedented political powder to republican donors on the republicans
11:59 am
unleashed what had been described properly at this anon is fine on our american selections. during our political system into chaos and very predict the blade advantage in powerful republican political interests. 65-for decisions but the american election, six to zero is the score for republicans. on to the corporations. corporations paid being called in front of juries. juries are the ones to touche and designed by the founders to be most immune to power. the institution of the jury was a particular favorite, it caused even that the founding fathers yeah but comcast and italian colors all 5-for are being held
12:00 pm
accountable by american juries. by the way, those decisions made no mention of the seven amendment. their decisions helped insulate investment bankers from fraud claims, janus capital group. they protect employers at the expense of employees bringing discrimination cases. ledbetter, gross, banff and nassau, for decision all holding for the corporate employer. they hobbled units in cases units in case of zacarias v. quine i've-4. i don't take it takes a crystal ball to guess the outcome of the friedrichs question when it comes back up to the court with a fifth republican justice. then comes the bonus decisions. hobby lobby asserting corporations have religious right to supersede health care right to their employees 5-4.
12:01 pm
in heller and make donald advising for the gun lobby a series, a former supreme court chief justice once called a fraud all republicans. add back in those three pro-corporate political spending cases and a score on this count corporations versus human is the team-0. at some point the pattern becomes evident. it is against this evidentiary backdrop that i've reviewed judge gorsuch nomination. he had to prove to me that he would not join a new right in gang of five upon joining the court and go on another similar corporate shopping spree. i'm sorry to say he did not meet up our. i know my friends on the other side of the aisle will accuse democrats of being on race about and politicizing this process. their behalf.
12:02 pm
this is a bit rich to last coming from the party that not only denied judge garland, perhaps the most qualified judge nominated at such a hearing, but the flagrant beneficiary of these partisan decisions. i feel like i'm watching casablanca for the inspect or says that he is shocked to find that gambling is going on here as he has handed his winnings. i believe we are nearing a great point for the court and for the country. since citizens united, the government has dwindled and cynicism towards government has skyrocketed. especially a certain versus the bike. in a 2015 paul, 75% of u.s. adult perceived corruption is widespread in the country's government. 75%.
12:03 pm
82% of americans think money has too much influence in politics. by the way, they are right. even the supreme court is not spared from public dissolution by a margin of 9-1 americans think a regular person won't get a fair shake in the supreme court compared to vice versa. the three major popular writers on the supreme court all express similar concerns. something is wrong at the court. as a child of the foreign service, are of a firm in american sectional is on. i saw firsthand what happened when dictators or oligarchs could manipulate a government for their own gain. the insisted danger to popular democracy at the hands of concentrated economic power was
12:04 pm
warned of long ago by none less than thomas denver said he warned of what he called a trial of strength, a trial of strength between popular democracy and moneyed corporations. american needed justice who understands the stakes. america's needed justice who can help the court find its way back to robust protection of popular he and not so relentlessly take sides of moneyed corporations and not jeffersonian trial of strength. this popular government. for this nominee to be able to say, for instance, that dark money is a plague on our thomas received is to need disqualifying. that silence is particularly
12:05 pm
pungent while the beneficiary of a dark money campaign for his confirmation. this nominee candidacy was born on a list prepared by right wing pro-corporate groups was announced to this nominee by the leader of one of those group and they supported at millions of dollars in dark money spending. against that backdrop, his silence on dark money is tallied. and the political leader of the republican party is preparing to break the rules of the senate to guide him onto the court. please don't tell me that he's making non-effort in the interest of sudden high judicial loss of the. this is about making sure that people went out the court who
12:06 pm
are of a certain type, like ceos and billionaires. i'm sorry, that there is just too much as it is of where this leads for me to trust this nominee. i yield that. >> senator leahy. thank you, mr. chairman. fortunately, our system doesn't require any one person. fully trust is the law and what we trusted the constitution. what we trust is the system which he properly followed and aired several results in the equal application of the law to the individual. what we've seen here today are many of my colleagues is the next donation as to complaints that different people have about judge gorsuch. complaints that because they are not direct it at the way he actually analyzes the law, try to blame him for something else.
12:07 pm
try to blame him for something other than his jurisprudential approach. try to blame him for something that is resulted in the conduct of a third-party, someone not even considered for confirmation at the united states supreme court or blame him in some cases for the law. laws that are actually made by congress or in other instances precedent set by the 10th circuit that is solid faithfully in individual cases. so there's been a suggestion. sometimes an implicit at other times it's been very explicit that judge gorsuch is beholden somehow to individuals that have expressed support for him. this is a very serious claim. there is absolutely zero evidence to back it up. not a scintilla of evidence. this is not how judge gorsuch
12:08 pm
decides cases ms not being there to back out of. and yet my colleagues, many of them have continued rather reckless late to accuse judge said except these someone who is influence on the basis of someone's identity and the party on the basis of whether they're an individual corporation committed big iron little guys some of them have put it. and yet there simply is no evidence for that and to suggest otherwise is to suggest it has been happen on the 10th circuit with judge stubbs its rulings that have been on the supreme court. you might as well call a judge with whom you disagree a so-called judge. this is denigrating to our judicial system, which while imperfect is one that i would put on par with an impact above that of any in the world. several members of this committee have gone so far as to
12:09 pm
sign a letter asking judge stubbs at to find out to funds one of these organizations in particular called the judicial crisis network and also to recuse himself if he's confirmed the supreme court of the united states for many cases involving that organization are those who find that oregon is a shame. this is an odd request in fact, it's unprecedented. and it one that i'll add this unnecessary as judge gorsuch pointed out. no one speaks for him. no one else is authorized by hand. he speaks only for himself. this is the when the constitution was written the way it was. it's where they give article iii judges including supreme court justices life tenure say they can say without any risk of outside influence. but the request is most
12:10 pm
definitely unprecedented when it comes to the committee. whenever there's a supreme court nomination, a number of organizations will submit papers to this committee. some will submit testimony, others will submit letters. some of them might run advertisements. sure people exercise their rights amendment right to weigh in on a particular nominee. to my knowledge based on what we had till now, but nominee to exert public pressure on any outside organization. has not passed any nominee to the supreme court to tell any organizations having to speak on that nominee's behalf or reporting to advocate for the confirmation of that nominee. two out that organizations donors, to identify them.
12:11 pm
that is not the nominee's job is putting them on the a terrible position. are they, mr. chairman, to enter a list of organizations that submitted letters in connection with the nominations of justice kagan and sotomayor. they are very long list. without objection so what are. thank you, mr. chairman. in addition, i would like to know that there were a number of other groups that have over time express their viewpoints in one way or another i see their support or opposition of various supreme court nominees. many of these have been on the last. many of these have been from organization including naral, and now, move on, people from the american way. and yet, i note that no member of this committee, not a single republican, not a single democrat has suggested that a nominee has any obligation that
12:12 pm
point either to identify such organizations donors or to recuse one's for many case involving one of those organizations are anyone contributing to those organizations. not one. not a big case of justice kagan, justice sotomayor or any other supreme court nominee that i'm aware of. i also want to say another thing about this dark money point. some of my colleagues have characterized this as a national out rove of citizens united. this is not the outgrowth of citizens united. this line of reasoning ignores the fact that the supreme court upheld the sec disclosure rules and just and united. the heaviest part of that decision to uphold other disclosure requirements. it ignores the fact that in 2010 in a different case the supreme
12:13 pm
court upheld other disclosure requirement. so if you have issues with lack of disclosure is mandated by federal law, perhaps we should talk about that in connection with the legislative discussion. if you want to change the law, let's talk about changing the law. make sure you're not leaving something on the supreme court that the supreme court didn't do any shirt and they shouldn't think that a non-judge stubbs asked the judge gorsuch didn't do especially to the extent you're talking about federal policy, making federal law that after all his congresses job and the inadequacy of the law as the impact on us, not someone else. i also want to address the notion that somehow there is a good guy, but outside dichotomy that we need to be worried about. that judge gorsuch as opposed to the little guy and always favors the big guy. it is worth noting something that chairman grassley alluded to it earlier.
12:14 pm
there is a statement made by professor noah feldman, professor of law. a self-described liberal ball professor at harvard who referred to this attempt to smear judge stubbs at this quote, unquote terrible idea. i was a statement chairman grassley quoted earlier. i'd like to share little bit more of that statement whereafter landing that it's a terrible idea goes on to explain some of the reasons why, including the fact that citing with workers against employers isn't a jurisprudential position. it's a political stance. justices including progressive justices should decide cases based on who the parties are. they should decide cases based on their beliefs about how the law should be interpreted, close quote. professor feldman, again himself
12:15 pm
and felt described as liberal is right. this is a bedrock principle in the rule of law and the american legal system under our constitution. judges don't. in fact they should never decide cases based on the identity of the individual party. that's not how it works. if not ever how it should work. one of the reasons why is judge gorsuch has so carefully explained. you show me the ruling of a judge who always agrees with his or her own decisions, always feels comfortable with 10 as a matter of policy outcomes. i'll show you someone who's not a very good judge. judges aren't there to decide cases on the basis of the identity of the parties. now, if you think long for the p. was wrongly decided or if you think judge gorsuch separate
12:16 pm
opinion entrance and tracking was wrong, then make a legal argument. let's talk about how the statutory text in that case was interpreted. that's the appropriate discussion to have here. if you read about the driver and the trains and tracking case, what type of a statutory construction. rather than talking about the outcome, if you want me for judge gorsuch, anyone to defend whether or not the law was written in that case, that's a different equation altogether. it deals with congress. if what you want to do is talk about whether or not the employer made the right decision to terminate the driver in trans am tracking, i don't take anyone in this room will do better. as far as i can tell is a foolish decision to fire the tracker.
12:17 pm
i don't think judge gorsuch if he were to opine on not to disagree but that wasn't the question before him. the question was whether federal law had something to say about whether or not the decision could be legally upheld. the law as he carried carefully analyze what not allow judicial intervention in that circuit and then that is exactly the kind of jurors we need. again, if you disagree with his legal analysis in that case, let's talk about it in terms of this legal is rather than on the basis of the identity of those parties. everyone on this committee is familiar enough with the law in the cases to do that. i can only assume that in instances where people can't identify enough of a statutory textual reason to disagree, but they want to change the subject to send them out and said they turned to the identity of the
12:18 pm
parties. in any event, these are a few cherry picked cases out of 2700 cases that judge stubbs x has decided in his 10 years on the bench. they ignore cases were judge gorsuch as i did with the little guy. cases like amv homes, fisher versus city of his port city of albuquerque. william studied the sports and will be powell. i'm wondering why these cases don't count, at least on some hot tally up. i wonder why an art doing judge gorsuch is somehow a means dream, we judge that is so wildly out of the mainstream that he can't become earned the supreme art of the united state could have been 2700 cases
12:19 pm
banning an entire decade of judicial service on the u.s. court of appeals for the 10th circuit house then -- how that same person who is so out of the mainstream that it then 97% of the time in a unanimous posture with the colleagues remembering of course that as an appellate judge on the 10th circuit, he never said the loan. he is sitting on the senate panel, usually a panel of three judges. usually in an en banc posture or he said to the dozen or so colleagues. 97% of the cases, he reached the ruling that was unanimous with his colleagues with whom he was sitting. 99% of the cases he was in the majority. that is not the background of the judge decided the mainstream. if you don't think judge gorsuch should be confirmed, focus on
12:20 pm
his jurisprudential approach. if you disagree with some of his rulings, focus on his legal analysis. at the end of the day, it is difficult to imagine a judge is more well, more well credentialed for more well suited as a matter of judicial interpretation of statutory construction, a matter of judicial temperament. i am honored to support the confirmation of judge gorsuch and i encourage my colleagues to do the same. thank you, mr. chairman. >> senator klobuchar. thank you, mr. chairman. >> before you go, your time will start. i want to can talk with you as i did my ranking member here. there's two ways we can do lunch. we can adjourn around 1:00 to 1:30 or approximately that time.
12:21 pm
or if you are going to do it and people go one by one and go eat, i am willing to stay here and plow right through until we get done. could i have some sort of vacant and is a what to do? if you want to adjourn or 1:00 to 1:30 on the razor and peered >> that the majority cater this bunch? >> okay, people who don't want to do that come to stay here. >> i vote for applying right through. >> i think we should pirate through. plow through regardless of the catering issue. >> well, okay. i ask for the people who want to adjourn at half-hour have the most votes. let's -- >> mr. chairman, and ask a question about that? is the photo finish? >> we have to finish have to finish today and we will be able to because they've been told
12:22 pm
there will be two hour rule and all of that stuff. then we will just plow right through. senator klobuchar, go ahead. >> thank you. that is a great finishing to mankind oratory here. i want to take on senator lee's challenger to focus on the nominees judicial a. i will say a few things. first of all, i want to thank the chairman and senator finds time for how they conduct the hearing. i thought they were civil and i think that was really important, especially with what we are dealing with now. i also was thinking it is true that for most judges, there is agreement on a lot of the easy cases in the lower federal court, but those aren't the cases the supreme court get. the supreme court is this hard cases in the gray area. for me as i've looked at the nominee's record, i've tried to
12:23 pm
focus on when he was confronted with cases that he could deal with on the supreme court that campaign finance, which we know has been a major decision that's come out of the supreme court, how has he responded to those kinds of cases and what do we think he would do when he got on the supreme court? what i've concluded and maybe the best analogy is you, senator lee, when you and i work on its antitrust matters and we try to find common ground, we have many different views and then we try to find area where we have consensus, the narrow ground where we have consensus and are able to come together at the moment. well, very many of the nominee's opinions for that is not what he did. he might be on the opinion where there is consensus, but then he tries to go a step further and take kind of, in my mind, a provocative approach come a broad ideological leap and that is what concerns me when you get
12:24 pm
to the supreme court level. with some of my other colleagues, i have sat through the last hour here and do i find it difficult to hear them spout righteous indignation about the senate rules? i do because when i hear the litany of those votes for the southern nominees 97-0, 98-era, the numbers for justice kagan, the number for justice sotomayor, the numbers for justice roberts, the numbers are just as the lead up, all i think about is the numbers will oppose justice garland were judge garland. he got zero votes because they senate and the majority decided to sit on it for almost an entire year. something that we had not seen for a senate did not take action on a nominee and that way since the civil war. and zero, i would prefer to take senator lee's challenge and
12:25 pm
focus not on that today, but in that focus on this nominee has of. after a thorough examination and consideration of answers in the record, i have decided not to vote in either of the nominee. for me, his record on critical cases involving the rights of children with disabilities, campaign finance and preserving health and safety protections have led me to conclude that i can't support the nomination. now, let me make this clear. i did not expect that i would agree with every opinion he wrote in everything he ever said, but what i thought time and time again was a judge that clearly demonstrated the contrast between judicial approaches. one is the one we have seen with the proposed nominee last year, merrick garland, which was to write their consent decisions and the other is to move towards a more ideological decision.
12:26 pm
and i thought a lot of those ideological decisions in key cases. now, senator durbin mentioned this disability case and i was the one that asked a lot of questions about that case after senator durbin initially raised in the supreme court decided on the day we had the hearing for judge gorsuch decided he-euro decision to reject what was essentially the standard that judge gorsuch had come up with in a case a few years back in the 10th circuit. as we know, the ide a -- idea very important for kids with disabilities. in disabilities. and i say, 124,000 kids rely on this law to protect their education. i also am quite aware that i occupied the senate seat that was once held by minnesota's own hubert humphrey. he was someone who of course was
12:27 pm
never at a loss for words and he delivered a speech or two years ago in our state and the line of that speech that is just as appropriate as it was then i think is appropriate today. he said, quote, the moral test of government is how that government treats those in the town of right, the children, those in the twilight of life, the elderly and those who are in the shadows of life, the needy, the sick and the disabled. so an 8-0 decision two weeks ago, the supreme court under that principle, ruling against the narrow interpretation of the idea embraced by judge gorsuch that limited the educational opportunities for kids with disabilities. chief justice roberts wrote the unanimous opinion and reject did the nearly more than the minimum standard that the judge used to limit and help the children with disabilities can get at school.
12:28 pm
i couldn't agree with the 8-0 decision more. all children, particularly those with disabilities deserve because they need to succeed in life and every justice on the supreme court have the duty to protect those kids. they are simply following the words that are etched on the supreme court building. equal justice under law. in explaining his ruling, the judge that he was bound by precedent used the nearly more than demented standard. i sat here is senator graham repeated those words and that the judge was found by precedent. so i spent a lot of time looking at that to see if in fact i was true and they simply don't agree when you look at the cases. so what happened was back in 1996, before judge subs x was on the 10th circuit, there is a case about a kid with disability and the 10th circuit found the number of finding, but when they
12:29 pm
talked about this particular standard ,-com,-com ma that wasn't why the case was decided. i know i'm in the weeds here, but i'm taking on senator lee's challenge to actually talk about the record and what it says is the what the court did way back in 1996 was they used a case from the third circuit that they were downed by and just mention it. they also mention the 10th circuit case that they would be more bound by it, which was different and was a broader's entered and then they really didn't decide the case based on it anyway. so here comes judge gorsuch in 2008 and he has a case that is going to turn on this. see site this case in the past and uses it to support the standard that this case does turn on. however, the whole case wasn't even what it was decided on and it was from another circuit that circuit wasn't bound by it.
12:30 pm
and maybe in the wee, but it matters because it shows again that he went a step further. is that enough? no. the old case from a weight difference are good that it wasn't decided on actually said more than demented mess. as i said during the questioning, that means something. if you have a gas tank on and see and you say more than empty, it can mean a long way out. he added the word merely more than demented mess which clearly has a different meaning which puts it even closer to empty. that is why i don't believe that he was one bound by precedent. ..
12:31 pm
he made this decision and he went again, further than he needed to, which is my commenting here today. second, campaign finance. in my view, one of the most troubling court decisions in recent years is citizens united. since citizens united, dark money, as my colleagues pointed out, has been spent in extraordinary sums adding up to $800 million in the past six years. it continues to have an outside influence on our politics, distorting our representative democracy, hurting our campaigns on both sides of the aisle. you can't control who you are to the people you represent and what they say about you if in fact other people are doing it for you, other groups you have no control over.
12:32 pm
how does this apply to the jud judge? it applies to the judge, i wouldn't even bring it up if he hadn't made a decision that was very relevant to this area of the law. there was a case that came by and it was a narrow case about how the campaign-finance laws apply in colorado to certain kind of contributions involving major parties or nonmajor parties. was it enough to just be in the narrow consensus group? no. he then issued a concurring opinion which went farther, and what he said was maybe we should apply strict scrutiny laws to campaign contributions. what does that mean? if the supreme court adopted his view it would compromise the few campaign-finance protections still on the book and make it more difficult for congress to pass future reform. the notion that congress has
12:33 pm
little or no role in setting reasonable campaign-finance roles is an indirect contradiction with where the american people are. in recent polls, over three quarters of americans said we need sweeping new laws to reduce the influence of money in politics. now while polls aren't a judges problem, democracy should be. when unlimited, undisclosed money is is used for campaigns it drowns out the public's voice and in the words etched on the supreme court building. equal justice. my colleagues asked him again and again about his views on public finance laws and he had many opportunities but never told us what the proper legal standard for evaluating campaign-finance laws would be if he wasn't going to use the one that was used.
12:34 pm
a majority of the current justices support public disclosure of contributions and yet the judge gave us no real sense of his views. during our exchange on campaign-finance, i was reminded of the words of justice scalia and his support for greater disclosure. he said this, requiring people to stand up in public for their political acts, fosters civi cic courage. without democracy is doomed. i do not look forward to a society which, thanks to the supreme court campaigns anonymously and even exercise the direct democracy of initiative and referendum hidden from public scrutiny. this does not resemble the home of the brave. third example, chevron.
12:35 pm
the most striking example of the decision made by the judge not to decide a case narrowly based on the facts was this one in which he actually wrote the opinion and then wrote a concurrent to his own opinion. that is pretty different than what most judges do because they mostly embrace the fact that they've gotten the consensus opinion. i guess it's better than defending your own opinion but he did a concurrent and he went beyond the facts to suggest overturning a long established precedent and case where he suggested eliminating chevron. he said it's time to take on the behemoth. it's a 33-year-old supreme court case that ensures the most complex regulatory decisions are made by the experts who are best equipped to handle them, not by judges or lawyers without any relevant technical knowledge. it is a standard that was embraced by justice scalia and has been used in more than 13500
12:36 pm
decisions. chevron ensures that the federal rules that health, safety and education rules stay on the book. these protect the hard earned pension money of an hourly minnesota grocery store worke worker -- that was an actual case based on chevron. they protect the clean water in our lakes and they were the difference between life and death for minnesota iron ore workers. the judges approached the law would have titanic real-world implications on real lives. when he wrote an opinion that it would be time to face the behemoth, he suggested a change in law that would put countless rules in jeopardy, compromise protections that matter to the american people, and create widespread uncertainty in our laws. i asked the judge whether he believed that overturning chevron would create tremendous uncertainty. i asked him what he would replace it with. i did not the straight response. he even answered he did not know
12:37 pm
what all the consequences would be. he also said he wasn't thinking of being a supreme court justice when he was writing the decision. what does all this mean? it means that the judge has repeatedly gone beyond the facts of the case, issuing separate concurrences with far-reaching effects, or in the case of the disability decision, actually writing opinions that are profound consequences. that is what happened. by the way, chief justice roberts said when all is said and done, student offered an educational program providing merely more than minimal progress from year to year can hardly be said to have been offered an education at all. when i read these opinions, i think about justice byron white, who i note judge gorsuch clerked
12:38 pm
for and admires. justice white has been admired by many saying he decides only the case in front of him. here's the quote. time and again justice white avoided broad theoretical basis for decision when a narrow fact specific rationale would suffice. you see, there is a reason we have judges to apply the law to the fact. it's because answers aren't always as clear as we would like, and sometimes there is more than one reasonable interpretation, and by the way when it gets to the supreme court level, it's not those 97% of cases where everyone agreed in the lower court level. it's going to be those really hard cases. it is that discussion that makes it so critical that justices
12:39 pm
interpret the law evenly, without fear or favor and with the good judgment and humility to recognize the gravity of the office, to respect the role of the judiciary, and to understand the impact of their decisions on people. as i noted in my opening statement, and as i look back at the judges record and his answers last week, i am again reminded that it isn't a law professor or federal jurist who is helped by the eighth circuit reliance on chevron in interpreting a labor department rule. in this case it was an hourly minnesota grocery store worker that got to keep his hard earned pension. when the court stripped away the rules that open the door to unlimited super pack spending, it wasn't the campaign-finance or's or the admin who were hurt. it was a grandma and lanes borough minnesota who thought it mattered when she sent her senators $10 in a campaign contribution. as the green -- granddaughter of an iron ore worker, it was the
12:40 pm
minnesota iron or workers, who like my grandpa, would go down 1500 feet every day in a cage with their black lunch buckets all with the hope that maybe their kids could go to school. those are the people we can smile, we can talk about the rules, but those are the people affected by the supreme court of the united states. my dad, who ended up as the first kid in his family to graduate from high school, and from there went to community college and then to the university of minnesota still remembers as a little boy standing in st. mary's church and seeing the casket of those iron ore workers laid out in the front of the church because they didn't have safety rules that protected those workers back then. i believe that we need justices who understand that the law is more than a set of dusty books in the basement stacks of a law
12:41 pm
library. it's the bedrock of our society. above all, we need justices who understand and will uphold the modemotto on the supreme court building to help all americans achieve equal justice under law. that is why i will not be supporting judge gorsuch nomination to be an associate justice of the supreme court. thank you, mr. chairman. >> senator sass. >> i appear to have a defective microphone. i can be loud enough. mr. chairman, i have a lot to say. >> can you move the microphone? you have to talk into the microphone for the recorder. >> mr. chairman, i have a lot to say but i will save it for the floor and help push your schedule forward. i would like to associate myself with your opening comments. i think it is obvious that the
12:42 pm
senate is not a healthy institution. that is not something because of the last six months or two years. it is a long time coming and i'm sad about that. bigger picture, today is a good day for america. baseball is back and judge gorsuch is one step closer to taking his seat on the supreme court. think you, mr. chairman. >> thank you, senator sass. senator franken. >> thank you, mr. chairman. i want to thank you and the ranking member for how these hearings were conducted, but more you. >> thank you. >> but also the ranking member. [laughter] since justice scalia's passing, i have heard a number of my republican colleague including my friend senator graham this morning make reference to what is often referred to as the biden rule. that would justify their decision to deny president obama's nominee a hearing and to keep justice scalia seat vacant.
12:43 pm
this is a rule they believe that chairman biden laid out during a 90 minute speech that he gave in june of 1992. now then chairman biden did lay out a rule in that speech, but my colleagues focus on the wrong part of the speech. because, further ends of the speech than that wa which was quoted by senator graham, he said, and i quote, if the president -- who was george h.w. bush at the time, consult and cooperates with the senate or moderates his selections absent consultation, then his nominee may enjoy my support as did justices kennedy and souter.
12:44 pm
now mayor carlin was a moderate selection indeed. in 2016, five days before president obama nominated chief judge garland, senator hatch was interviewed about the vacancy. here's what he said. the president told me several times he is going to name a moderate to fill the vacancy, but i don't believe him. obama could easily name mayor garland who is a fine man. he probably won't do that because his appointment is about the election so i'm pretty sure he will name someone the democratic base wants. as it turns out, in recognition of the forthcoming election and republican senate, president obama did name a moderate. now part of what made mayor garland a moderate pick was the
12:45 pm
fact that he had a reputation for working with his colleagues on the d.c. circuit to identify areas of agreement. senator publish our mention this. to craft strong consensus decision. when i met with him i asked him how he did it. he said part of how he reaches consensus is by deciding a case, he doesn't seem interested in deciding places narrowly. even when judge gorsuch agrees with majority in a case and joins their decision, he frequently writes his own concurring opinion setting out his own views. judge gorsuch has done this 31 times, including writing to
12:46 pm
concurring opinions to majority decisions that he himself wrote. that is not seeking out consensus. that is holding his nose to join a consensus opinion and then writing separately to make clear that the decision would've been different if he could have persuaded his colleagues to see things his way, or perhaps to point the way to broader more sweeping rulings in other cases. that kind of thinking gives me concern particularly in light of what president trump and his staff have been saying about judge gorsuch. white house chief of staff along with chief strategist steven bannon interviewed gorsuch before he was nominated by president trump. they later appeared before right-wing activists at sea pack
12:47 pm
and told the crowd that a justice gorsuch would bring about a change of potentially 40 years of law. that is what this is about. this isn't about finding a consensus nominee who only calls balls and strikes, a nominee like mayor garland. this is about confirming a nominee who would guarantee 40 years, 40 more years of 5 -4 decisions favoring corporations over workers and consumers, preventing americans from getting access to the courts, favoring big dark money in our election and giving states a permission slip to target certain people with almost surgical precision.
12:48 pm
in order to make it as difficult as possible for them to vote. now judge gorsuch made great pains to paint himself as a mainstream judge. he said he was in the mainstream 99% of the time. that's not unusual. it doesn't really provide any insight into his approach of being a judge. after all courts of appeals are required to follow supreme court precedent and the vast majority of the cases all over the country in courts of appeals are decided unanimously. so, while some of our colleagues on the other side accused democrats of cherry picking when we talked about certain cases where judge gorsuch wrote separate concurring opinions of where he dissented, those
12:49 pm
writings offer the clearest window into his judicial philosophy. those are the cases that show up and show how he really thanks. those cases only underscore a disturbing pattern of the siding with corporate interest against everyday americans. i was particularly struck by his dissent in trans am trucking, because in that case he seemed to bend himself into a pretzel in order to side with a trucking company against the truck driver. you've all heard the story. senator feinstein described it again today and the situation where the driver was in. i just want to review the two choices that the truck driver was given by the trucking
12:50 pm
company, presented by his boss. after he had waited three hours in 14 below temperature in a cab that had notes heat, he had fallen asleep only to be woken by a phone call from his cousin, thank god. his cous reported later that he was sounded woozy and he wasn't tracking, that his torso hurt, he couldn't feel his feet, he had trouble breathing, all of these are signs of hypothermia according to the mayo clinic. his boss, after three hours gives him two choices. he can wait there with the
12:51 pm
trailer and his cab. his brakes are literally frozen. he can wait there, maybe freeze to death or he can go on the interstate at 2:00 a.m. with frozen brakes, fast as you can go is maybe 15 miles per hour hour. this is 2:00 a.m., it's dark, it's icy, people are traveling on the interstate 80 or 85 miles per hour hour this time and night. you go 85 miles up the hill, you come over the hill and suddenly you are coming down on a semi-
12:52 pm
that's going ten, 15 miles per hour hour. that's like going 70 miles per hour hour into a semi- that is stopped. that was his second option. instead he does what any of us here would do. he unhitched the cab and drove it down the road to get warm and after he warmed up, he came back but he was fired. he was fired for abandoning his cargo. now there is a law to protect people in his situation so he filed a case. when it gets to the tenth circuit, a three-judge panel agrees with madden, the driver. they find the trucking company shouldn't of fired him, but one
12:53 pm
judge dissented, judge neil gorsuch. here's what i want to get to. in the hearing i asked judge gorsuch what he would have done if he were driving that truck, which would you have chosen i said, which would you have done and this is how judge gorsuch responded. senator, i don't know what i would have done if i were in his shoes. now, is there anyone here who would have not done exactly what the driver did? i don't think so. of course you would unhitched the trailer and go find a place to get warm. of course, but judge gorsuch said he didn't know what he
12:54 pm
would have done. is that possible? i asked him if he had even given any thought to what he would have done and he didn't answer that so i asked him again, given the choice of sitting there and possibly freezing to death or going on the road with an unsafe vehicle, or doing what mr. madden did, what would you have done. judge gorsuch responded senator, i don't know, i wasn't in the man's shoes. judge gorsuch says he decides cases based on the facts and the law alone. i go to the law he said over and over again. but someone else did the majority. here is the law. a person may not discharge an employee who refuses to operate
12:55 pm
a vehicle because the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicles hazardous safety or security condition. the majority rule that the company couldn't fire the truck driver because he had refused to operate the rig. the entire rig, the entire vehicle because it was unsafe, but judge gorsuch said no, by operating the cab he was operating the vehicle therefore he didn't refuse to operate a vehicle so he ruled against the driver. judge gorsuch said he made the decision by applying the plain meaning rule. i pointed out that the plain meaning rule has an exception.
12:56 pm
when using the plane meaning rule would create an absurd result, courts should depart from the plane meaning. it is absurd to say that this company was in its rights to fire him because he refused to choose the tween possibly dying by freezing to death or possibly killing other people by driving a semi on an interstate at 10 miles per hour hour at 2:00 a.m. the company is fortunate that mr. madden made the choice that he made because otherwise they may very well have faced a wrongful death claim which they probably would have tried to arbitrate now, everyone knows whagorsuch would have done in hs
12:57 pm
situation. everyone here in this room knows if judge gorsuch would have been given an honest answer he would have said he would've done exactly what the driver did. he just didn't want to admit it. that's because there is no good answer to the question in the hearing. if he had said that he would do the very same thing, that would make his dissent look every bit as absurd as it was. but if he had said i would've done what the company told me to do, that would have told us that he is really bad judgment.
12:58 pm
of course he knew what he would have done. i defy any of my colleagues who come to me after this and say to me he didn't know what he would have done. he just wasn't being honest. he wasn't being honest. frankly, there are a lot of questions he didn't answer in response to questions about precedent and his judicial philosophy and even about bedrock constitutional principles. he dodged, deflected and obfuscated his responses to democratic members of this committee. they were cagey and evasive.
12:59 pm
mr. chairman, some of our questions may have been tough, but they were all fair. judge gorsuch has been nominated for a lifetime appointment to the highest court in the land so my democratic colleagues and i take seriously our responsibility to thoroughly examine his views. that is our job. that is what our constituents expect of us, and that is the point of the hearing. i am disappointed that judge gorsuch wasn't forthcoming with his answers. in the absence of answers we have to rely on his record and his record is not reassuring during his time on the tenth circuit. he has consistently ruled in favor of powerful interest pretty sided with corporations over workers, corporations over consumers and corporations over women's health. if confirmed he would guarantee more of the same from the roberts court, a court that is
1:00 pm
already, is already inclined to side with big business, more than any supreme court since world war ii. i don't believe that is the court that our country can afford. so, in light of his record, and in the absence of sufficient answers, and honest answers to questions that were proposed during a hearing, i opposed this nomination, and i urge my colleagues to think about that. to think about a judge, when asked a straightforward questi question, in my judgment did not answer truthfully. thank you.
1:01 pm
>> thank you, mr. chairman. thank you for the way you conducted this whole process. in 1987, i was here in the senate as an intern. i was in the office of a democratic senator. my wife at the time was here as an employee of a republican senator. she answered the phones. it was during the time of the robert bork hearings. i remember that time, being in all of this aghast body in this judiciary committee, and watching this committee to liberate. judge bork was extremely controversial. he ultimately was voted down on the senate floor. but he wasn't filibustered. in 1991 we were still here living in washington.
1:02 pm
my wife, myself, we watched the clarence thomas hearings, extremely controversial. probably the most controversial nominee of our time. he received an affirmative vote on the senate floor, very close but he wasn't filibustered. one senator, during either of those two nominations, just one senator could have demanded, could have filibustered or demanded a closure vote. not one senator did. it simply wasn't practice. in 2003, i was in the house of representatives. i was watching the senate and watching with a lot of admiration, those who form the gang of 14 to try to avert what we are seeing today. i remember thinking where have we come?
1:03 pm
why are we here? why can't we adhere to the practice. it's always bad that you give the president's executive calendar deference. you allow people to come to the floor for a vote. later this week we will likely be forced with the prospect of changing the rules. i think we shouldn't be here. i have not voted on a supreme court nominee. i have voted on controversial cabinet nominees just in the last couple of years where loretta lynch was put forward to replace eric holder. i can tell you it wasn't popular with my base and it still isn't. i hear about it just about every day. i voted to confirm her. i didn't agree with her philosophy. she behaved, in terms of philosophy, about how i expected she would. she was true to the president who nominated her.
1:04 pm
but i thought she was qualified. absent of extraordinary circumstances, the president ought to get his or her nominees, at least they ought to get a floor vote so i wish mr. chairman that we would instead change the behavior of senators rather than change the rules of the senate. i think we are where we are, and i hope that in the future, when future nominees come up, i hope that if i am in your position in the minority, that i will vote to advance at least for a floor vote, the president's nominee and i will commit to do so if the person is qualified. i think any stretch to say that
1:05 pm
this good man before us, judge gorsuch, is not qualified for the position, some wak may quibe about decisions or dissents he has made. i would argue that case has been raised so much that it demonstrates precisely what edmund burke described as the cold neutrality of an impartial judge. he himself said if a judge goes home at night and agrees with every decision that he's made he's probably not a good judge. and his only client is the law, he will likely not agree, not till good about decisions i have been made. i think he's a good man, he's lived a good life and he is certainly qualified. i hope we can advance him for an up or down vote on the senate floor. i yellei yield back. >> senator koontz.
1:06 pm
>> thank you senator graham. i would like to thank all of my colleagues for the thorough, respectful and constructive way in which these hearings have been conducted. there have been just 112 supreme court justices in our nations entire history. these jurists have decided cases that have shaped the interpretation and application of our constitution and influence the lives of generations of americans. some of these cases are celebrated turning points in our nation's long quest to form a more perfect union, cases like brown versus board education that ended racial segregation in schools, cases like gideon versus wainwright which ensures that all are entitled to couns counsel. cases that decided it's the law of our land that loving couples can affirm their commitment in marriage whether they are of opposite or same-sex. there are other signature cases like judge scott that have left
1:07 pm
stains on our history that outlasted the service of any one justice. since justice scalia passed away february 2016, i have reflected on the importance of verse up in court and the senate's responsibility to evaluate the president's nominee to fulfill the vacancy. just over 25 years ago, i was myself a law student intern on the senate judiciary committee nomination unit for chairman joe biden. at that time, i heard from long serving senators, a record of grievances of misunderstandings of wrongs committed one party against another, and a variety of confirmations and hearings in the bush and reagan administrations and before. i am struck that half of the committee serving here today hasn't previously participated in any supreme court confirmation on this committee. when justice scalia died, i called on president obama to
1:08 pm
nominate a consensus candidate to the court that would help us bridge our deep partisan divide, and enhance the legitimacy of the court on which our rule of law so profoundly depends and president obama did just that. he nominated chief mayor garland, one of the most confirmable nominees ever nominated to the supreme court. instead of healing the wounds left bipartisan battles long since passed, new ones formed. republicans held the seat open for over 300 days without regard for the damage of doing so to the court or to this body. i appreciate my colleagues defense of the speech once given by my former boss, senator biden. this action by my colleagues was unacceptable and has scarred this process and this body. as senator cornyn previously remarked, there has never been a partisan filibuster of a supreme
1:09 pm
court nominee in history. while technically correct, i question what a seven-month refusal to hold a hearing or vote is if not the longest partisan filibuster on this committee ever. i haven't forgotten the injustice done to judge mayor garland and neither have any of my colleagues, but we simply cannot move this committee and this body forward if we simply obsessed over past grievances and revenge. and so, unlike the majority leader who announced before any nominee from president obama that he would get no hearing, i pledge to treat president trent trump nominee fairly and to engage actively in this process and i did so, and throughout this process i have kept an open mind. after reviewing his record, after meeting with him twice and participating in four days a very well run senate judiciary confirmation hearings,
1:10 pm
submitting questions and getting feedback from thousands of don't delaware ian's, i have decided i will not support his nomination in the judiciary committee today. i appreciate that he is an intelligent journalist and engaging writer. i admire his commitment to being a good father to his daughters and a good husband to his wife and a good mentor to his clerks, and i even agree with many of his decisions. but i believe that my role in evaluating his nomination is more than reviewing his resume. it is more than recognizing he is smart and charming and i have to do more than think about a large number of consensus decisions because the law is shaped by circuit courts and even more so the supreme court by a handful of very significant signature decisions and i must follow my predecessors practice in considering judge gorsuch philosophy, and its impact on
1:11 pm
the constitutional rights of others, even though it's very different from himself with values different from his own. that is why my questions i judge gorsuch hearing focused on his view of americans rights to privacy and liberty to make the most important personal life decisions. at the hearings, i focused in on the tenth circuit case written by judge gorsuch, happy lobby, which allowed companies to refuse access to family planning based on the for-profit religion believes. i laid out in great detail why i viewed that as not just a strange reading or an overreach, but one that is wildly outside the context of the dictionary act and of previous law. i can summarize this best as quoting judge gorsuch dissent.
1:12 pm
he said the view was nothing short of a radical revision of the law and the loft corporation print such views were unsupported by jurisprudence. in his concurrence and hobby lobby, he advanced a broad theory, the religious freedom restoration act in which i an employer could avoid complying with any neutral law in order to avoid complacent the in the wrongdoing of others. i'd challenged him to give me a roll to this theory but was left with more questions than answers. i also asked him about his understanding of core constitutional provisions that protect reproductive rights, death with dignity and marriage equality. in his 2006 book, he was critical of individuals rights to make their own end-of-life
1:13 pm
decisions and asserted that all human beings are intrinsically valuable and the intentional taking of life by public officials is always wrong. his book and other comments suggest a narrow interpretation of the key precedent, and absolutely central case to addressing personal liberty and reproductive rights as protected under the 14th amendment due process clause. it is a critical precedent that the supreme court has continually relied on for 25 years. it protects the freedom of many, including most recently, the freedom of same-sex couples to have intimate relationships and support marriage equality as the law of the land. on each of these important issues and more, he avoided responding concisely and thoroughly to questions. it was detailed by senator feinstein. he avoided responding to
1:14 pm
questions that many other nominees nominated by both republicans and democrats have not just answered but answered squarely. he told me the kc decision remains an open question in many ways. he would not agree with me that the right to privacy extends to protecting women's rights to have autonomy over their reproductive choices and protecting the privacy of intimate relations between consenting adults, whether same-sex or the opposite. this and many more left me concerned that he harbors a restrictive view of the right to privacy and personal liberty rooted in the due process clause of the 14th amendment. let me be clear, i don't think these and other issues raised by many of my colleagues are just narrowly partisan issues. i think it is unfortunate if we lead the public to view members of the supreme court simply as red tags or blue pegs deciding cases along partisan lines. there are many cases that are decided not along partisan lines but along lines that are narrowly legal. i think in 60% of cases decided
1:15 pm
by the court, they are unanimous. indeed several justices nominated by republican presidents have appreciated exactly this point, the important role of due process in securing individual liberties. they have taken a far more restrained view of their role. it shows a tendency to explore broader issues than what is necessary to decide the case before him, willingness to promote actively changes to the law. he has insisted the chevron doctrine should be revisited for me, even more troubling, he suggests restricting access to federal court. the critical tool for enforcement.
1:16 pm
it's based on these and many other concerns that i've detailed in my questioning, my question for the record and further statements that i've made that i will ultimately vote against judge gorsuch nomination today. still, i share the belief that he is a talented jurist and i understand why all my republican colleagues will support him and whilwhy some of my democratic colleagues will support him as well. i believe he will advance to the full senate. we are a historic moment. thanks to actions, decisions and mistakes made by both democrats and republicans over recent years, over many years, we have eroded the process for reaching agreement and the dishonored our long-term agreement. i said last week it would be
1:17 pm
tragic if it leads senate republicans to join majority leader. the majority leader has assured us he will abolish a 60 roll threshold if the democrats don't support him on the floor. i don't agree with that approach, but like it or not, that is the reality. on thursday, the full senate will participate in a closure vote. it's one of the senates long traditions and though many americans may not know exactly what it means, it means we are done debating and we are ready for the final vote. almost always a combination of democrats and republicans are required for us to get to closure. on thursday we will be voting to decide whether we are ready to decide debating the nomination. i'm not ready to end debate on this issue so i will be voting against closure unless we are able to finally sit down and
1:18 pm
find a way to avoid the and fill the next vacancy on the court as not a narrowly agreed but a way for both of us to weigh in and secure support for members of both parties. the reality we are in requires us to consider what both democrats and republicans are doing to this body and to consider what both have done to erode the trust that has long-lasting between us and consider well up there we can stop the undeniable momentum that makes the senate unique and important. democrats, including me are still furious at the way judge garland was treated last year, but the traditions and. [inaudible] for my part, i hope and pray that we can yet find a way
1:19 pm
together to find a solution. thank you. >> thank you very much mr. chairman. judge gore search has shown himself to be a judge of unwavering commitment to our loss and the separation of powers defined in our constitution. the american bar association prides itself on serving as a neutral arbitrator of the procession in this country and as we've all heard, they have bestowed on judge gorsuch its highest possible evaluation. their report is full of excerpts such as the following. he enjoys an excellent reputation for integrity and as a person of outstanding character. i have known and interacted professionally since his appointment to the tenth circuit
1:20 pm
court of appeals. i cannot identify a person more qualified in every sense of the word to serve as an associate justice of the united states supreme court and he believes strongly in the independence of the judicial branch of government and predict he will be a strong voice in protecting it. the judiciary committee recently computed a four-day review. in addition to hearing from him from over 20 hours, the received formal testimony from 30 outside witnesses. thousands of thousands of words were exchanged over the course of the hearing all in front of the american people. what the people saw is a thoughtful, humble and brilliant legal mind in the service of the public. in response to a question of mine, he said the following, i come here with no agenda but one, no promises but one, to be as good and faithful a judge as
1:21 pm
i know how to be. that is it, and i cannot promise or agree or pledge anything more than that to this congress. that statement, and the hearing as a whole confirmed him to be a man of great integrity, of the mainstream, an exemplary student of the law whose record shows he is part of the unanimous decision 97% of the time and 99% of the time in the majority. my colleagues have raised the possibility that he might have secret intentions or to shred the constitution from the bench. they have parsed words for hidden meetings. imagine strategies from concurring opinions and searched for cloaked messages in his writings. he has over ten years as a jurist, with 700 opinions to
1:22 pm
review. most of it was focused on four or five cases. let's talk about what he testified to under oath. in the face of repeated positions on how some k should've been ruled or should've been handled or should've been handled in the future, he was following president and following the law. on the first day he gave no fewer than eight assurances that he follows the law as a judge. by my count, on the second day, he gave 3 36 36 assurances thate looks to the law and on the third day it was 29 more times. that's right. by my count he said 73 times that he is committed to the law when he hears a case sitting as a federal judge. still many worry he had a secret agenda to overturn long-standing
1:23 pm
legal precedent. just in case some are confused he mentioned no fewer than 97 times that he followed precedent as a judge, as he is that bound to do. more than 60 times he reminded the senate and the american public what a proper jurist do does, follow the law and the president. we even talk about the book he cowrote, the law of judicial precedents. 942 pages of dedication to following precedent. during the oral testimony, he dedicated to ruling as the law requires, reading the language of the statute as a reasonable person would understand it, and respecting the president. just to put all these things to rest, he assured everyone he is without secret agenda, none.
1:24 pm
in reviewing the record is clear to me that those who come before judge gorsuch received equal treatment under the law. when i sat on the bench and someone comes to argue before me, i treat each one of them equally. they do not come as rich or poor, big guy or little guy. they come as a person and i put my ego aside when i put on that rope and i open my mind and i open my heart and i listen. i asked him, as some has indicated when he was nominated he was required by the president to make some commitment to the president as to how he would rule on some case or how he would resolve some issue. in fact i asked bended my question to whether the president or anyone at the white house were in the administration had made such a demand of him. his response to me was that he had not been asked to do so and had he been asked, he would have
1:25 pm
walked out of the room. judge gorsuch will follow the law and follow precedent as his career has shown. let me turn quickly to a couple issues that have been raised. some raise the issue of what they called dark money saying there are some people and organizations who are so hopeful he gets nominated and confirmed that they are spending money to support his nomination. that is true. what the opponents don't say is that there are other people in other organizations who are so opposed to his nomination that they are spending millions of dollars in opposition to his nomination. that's also true. as our chairman said in his opening remarks, that is part of our system in america, and for those who are claiming that because some support his nomination, that he must therefore be committed to their
1:26 pm
agenda is simply false. he has shown himself to be a manic character and integrity who will follow the law and honor precedent. let me clear up the brown versus education attacks. there were attacks in the hearing and attacks here today saying he won't say whether he supports the ruling and understands the issues in brown versus board of education print let me read his exact testimony to this committee in his heari hearing. on day two he stated, brown versus board of education corrected an erroneous decision, a badly erroneous decision and vindicated the dissent by the first justice harlan in plessy versus ferguson, where he correctly identified that separate to advantage one race can never be equal. he went on to say on the same day, he got the original meaning of the equal protection clause
1:27 pm
right the first time and the court recognized that belatedly. it is one of the great stains on the supreme court history that it took it so long to get to that decision. on the third day, when the issue was raised again, as if it was not clear enough, he stated it is a seminal decision of the united states supreme court. maybe one of the great moments in supreme court history. again, he said, i've said it was a seminal question of the united states supreme court that corrected a badly erroneous decision and vindicated the original understanding and the correct original understanding of the 14th amendment. it is one of the shining moments of the constitution history of the supreme court. that is what i've said. and then after it went on he finally said we are all on the
1:28 pm
same page on brown versus board of education, senator. notwithstanding all of the incredible support and the clear evidence that judge gorsuch is qualified, there are still those of my colleagues who are advocating for the extreme step of filibustering his nomination. many today have given reasons why they personally are going to vote no, but voting no is different from filibustering. the argument is being made that all supreme court justices are submitted to a 60 vote rule, not of 50 plus one role. that is simply not true. they can attempt to indefinitely delay his confirmation but they cannot defend this as regular or established practice. none of the current sitting justices were subjected to a filibuster. two were even confirmed with
1:29 pm
fewer than 60 votes. neither were subjected to the procedural roadblock. when president obama nominated justice so the mayor and justice kagan, they did not subject them to a filibuster. they received a straight up or down vote. same with justice ginsburg and breyer. they did not demand filibuster. even judge bork did not face a filibuster. throughout history there have been a few examples of where philip busters were tried. a partisan filibuster has never succeeded in the senate. just a little bit of history. there wasn't even a process on judges until 1949. :
1:30 pm
then under a serious ethical cloud-based 19 democrats who voted to block his nomination. almost as many as the 24 republicans who also voted to block the nomination. that's a slender thread length argument in favor of blocking judge gorsuch from the supreme court.
1:31 pm
even judge gorsuch's harshest critics have never suggested a whisper of misconduct by him. the other three cases, by the way, where justice rehnquist in 1971 when the full senate rejected the filibuster. justice windquest again when he was nominated as chief justice in 1986 when the full senate rejected the filibuster. and justice alito in 2006 when 72 senators rejected the effort to try to filibuster a supreme court nomination. the argument that justices nominated to the supreme court are subjected to a 60-vote rule is simply false. i understand that some were disappointed by the outcome of the november election, but it's quite a stretch to try to make the argument that the senate requires 60 votes on a supreme court nomination. in fact, this argument was reviewed by the "washington
1:32 pm
post" which gave it three pinocchio, calling this a false point taken to an asserted stream and using verbal gymnastics to obscure the truth. this claim only, that this cremona received three pinocchio nose is an undeserved kindness from the "washington post." in judge gorsuch we have a nominee who lives the rig ideal of a modest jurist who can understand that his responsibility is not to suborn the powers of others but to help deliver justice. those of encountered him as a legal advocate, as an editor in court or a presiding judge all praises fundamental fairness. his respect for the constitution is not in question. his experience, his wisdom and judgment are not in question. his capability to serve is not in question. commentator from both the left and the right overwhelmingly respect his legal mind and vouch for his commitment to fair jurisprudence.
1:33 pm
given gorsuch's judicial philosophy at his record as a jet she would be a welcome addition to the supreme court, seeking cohesive decisions. his record on the tenth circuit is strong. five of six of his decisions have been affirmed by the supreme court, including one which he wrote and four out of five in which he joined. not many judges have the experience, temperament and stellar record to match judge gorsuch. fewer still can corner overwhelming endorsement from colleagues, peers and observers from across the political spectrum. some may try to distract from the central point that judge gorsuch is extraordinary qualified and suited to serve as an associate justice. others would like to discuss other things or make this nomination a proxy fight about other tangential matters. but my colleagues and i will vote on his nomination, not those distractions. i encourage all the us to remember that. the senate should be proud to add judge gorsuch to the supreme court. thank you, mr. chairman.
1:34 pm
>> before i call on senator blumenthal, we have three on our side and two on the democrats side. if they speak about the average of anybody else, we should be getting to a vote soon after 2 o'clock, so i just thought i would tell everybody how i think it is going to work out so everybody can be up to cast their vote. senator blumenthal. >> thanks, mr. chairman. i want to join in thanking you and our ranking member for conducting this hearing in such a fair and enlightening way, and thank my colleagues also for remarks that i have found very helpful. use it at the outset, mr. chairman, that there was no mystery about -- you said -- how the outcome would be today. and perhaps regrettably that is so. but there is a mystery but the supreme court.
1:35 pm
it's an institution that functions in complete secrecy. it is an agonistic antidemocratic government or contact the greatest democracy in the history of the world. it's unaccountable, unelected, nine men and women having power for life in the highest court of the land to strike down actions by this body and by the executive branch elected by the people. it has no army or police force. it onto its power driessen credibility and trust. it is a mystery in a democracy. and yet it protects individual rights and liberties as no other institution can. and it does so because people have faith in its integrity, that it is above politics. that's why i believe strongly that approval of supreme court
1:36 pm
justices must be by more than a razor thin majority. approval should be done with a bipartisan consensus, as has been the case almost uniformly throughout our history. presidents have consulted with thboth sides of the aisle before they made a nomination. and we still have a path forward in seeking a consensus nominee. i will vote against the nomination of judge neil gorsuch today. i made this decision after questioning him extensively and private and in our hearing, reviewing his record, and deliberating carefully and deeply. it's one of the most important votes i will ever cast. i am still angry about the
1:37 pm
treatment of merrick garland. our republican colleagues have said that if the shoe were on the other foot, this side would've done the same. it would have been as wrong if we had done it as it was when they did, but my vote is not about merrick garland. it is all about neil gorsuch. and it is about the constitutional crisis that may well be looming, as a potential threat to our democracy. the fbi director has revealed that his agency is investigating ties between president donald trump associate and russian meddling in our election. the independence of our judicial branch has never been more threatened or more important. the possibility of the supreme court needing to enforce a
1:38 pm
subpoena against the president of the united states is far from idle speculation. it has happened before in united states versus nixon. president donald trump has launched a campaign of vicious and relentless attacks on the credibility of our judiciary. his disparaging comments have attempted to shape the foundations of respect for judicial rulings, the credibility and trust that is so essential to our supreme court, and all our courts. and it is a respect that is why withholding the president himself accountable to the people and our constitution. president trump's disrespect for our judiciary was demonstrated by how he selected this nominee. he promised a litmus test, i nominee who would end quote automatically overturn roe v. wade.
1:39 pm
strike down gun violence prevention measures, and be of a conservative bent. he outsourced the selection process to right-wing groups like the heritage foundation, choosing from their approved a list. against this backdrop judge gorsuch had a special obligation to be forthcoming. not to prejudge the merits of a particular case, but to share his core beliefs on long-standing, well-established precedents, and demonstrate his commitment to the independence of our judiciary. instead, he has evaded real answers at every turn. we have to assume that judge gorsuch has passed the trump litmus test,pro-life, pro-gun, conservative, in question after
1:40 pm
question i gave judge gorsuch, as did my colleagues, an opportunity to distance himself from those right-wing groups. his refusal to answer those questions only deepens the doubt that he is not a neutral follower of the law. or an umpire who just calls all sin strikes. but instead an acolyte of hard right special interests. in fact, as recent as late last week, he doubled down on evading this questions about specific cases in the written responses that he submitted to me. i wanted to give him every benefit of the doubt and give them every opportunity to say, as a number of his predecessors had done, including justices alito and kennedy and chief justice roberts, that court
1:41 pm
precedents were rightly decided and correct. and we're talking at only about brown v. the board of education but griswold v. connecticut, the right of married couples to use contraceptives in their own homes. loving v. virginia, the right of couples of different races to marry. or overfilled versus hodges. the right of same-sex couples to marry the person they love, and other key cases involving equal treatment under the rule of law and the right of privacy which is central not only to the reproductive rights of women and men, but also writes against illegal surveillance by the government and snooping and spying on private lives. these issues are not hot button
1:42 pm
controversies. they are more cases at stanford principles, like the rights to privacy and equal treatment. but judge gorsuch dodged all of them. he summarized the cases he told us how come he reminded us that a supreme court opinions but he provided no affirmation that he agreed with these decisions or their constitutional tenet. a justice who fails to share these basic values and belief that these decisions are correct, in my view, is outside the mainstream and a potential threat to constitutional rights that protect the lives and livelihoods of millions of americans. for most americans, the chevron
1:43 pm
doctrine is virtually unknown and perhaps would be incomprehensible, and it underlies a great deal of the faith and respect that is given to the work of agencies responsible for protecting consumers and workers and others who exercise their rights. i'm going to quote from an article of just the past few days that i ask, mr. chairman, be entered into the record. it's the government gorsuch wants to undo by emily and eric pilsner. >> so ordered. it will be put in the record. >> court of the rail is that judge gorsuch embraces a judicial philosophy that we do nothing less than undermine the structure of modern government, including the rules that keep our water clean, regulate the financial markets, and protect workers and consumers.
1:44 pm
that kind of approach to enforcement undermines respect for law and the rule of law. the supreme court is more than marble pillars and judicial robes. it's an embodiment of american justice. it is the flesh and blood embodiment of american justice. justice that has a human face and voice. its decisions must ensure that the rule of law is preserved for real people and that our constitution continues to protect us from overreach and tyranny. and that's why it's so important that the nominee of, to the supreme court, be approved by more than 60 votes, not that razor-thin majority that we are heading toward today. and that's why i will use and support the filibuster if necessary to oppose his
1:45 pm
nomination. judge gorsuch did say that he would follow the law. but as i said to him in my last round of questioning, supreme court justices are not -- there's no algorithm that enables them to simply follow the law. in fact, they resolve issues where the laws conflict, where constitutional rights bump against each other, and where circuits of the courts of appeals conflict. so core beliefs matter, and adherence to precedent an acknowledgment that certain decisions are correctly decided all matter. and today we still know very little about judge gorsuch's core belief, but here is what we do know. we know that the man who hired him has said he passes his right
1:46 pm
wing litmus test. we know that right-wing conservative organizations have spent millions of dollars on the prospect that he will move american law dramatically to the right. and we know that he will not answer questions that his predecessors, like justices alito and kennedy and chief justice roberts, were willing to answer about core tenants of american jurisprudence. in short, he has left us with substantial doubt. that doubt leads women wondering how long they will have autonomy over their health care decision. same-sex couples questioning whether they might be denied the right to marry the person they love. workers and consumers doubting their rights, and americans fearing the court will abandon protection of privacy and equal protection under the rule of law.
1:47 pm
that doubt is why i cannot support this nomination. and why i will join in a filibuster, if there is one, to stop it. mr. chairman, i'd like to just state briefly as well my position on the nominee for deputy attorney general, rod rosenstein. i agree with my colleagues that he has a nominee with a very impressive background and qualification. and i would vote for him if he agreed to a point a special prosecutor -- to appoint -- investigator, the potential involvement for collusive action involving trump associates in that meddling. and other matters related to
1:48 pm
that set of incidences. i believe a special prosecutor is absolutely necessary to do the investigation, and to hold accountable anyone responsible for colluding with the russians. the facts have been established that the russians sought to affect the outcome, whether they did or not is immaterial. but through a concerted campaign of cyber attack amounted to an act of war on this country, misinformation, propaganda they sought to affect the outcome of that election. the intelligence committee of both houses major an investigation, and there may be an independent commission, as i believe there should be, to make findings and recommendations and do a report that will be fully transparent. maybe more so than the intelligence committees. but only a special prosecutor
1:49 pm
can hold accountable criminal wrongdoers. no other body in congress or elsewhere can prosecute and bring criminal charges. that's what i think a special prosecutor is necessary, with the independence and impartiality to investigate vigorously and thoroughly the intelligence committees of the senate, hopefully will do their job. but even if they do, they cannot prosecute and hold accountable criminally th wrongdoers who may have been involved in that russian interference in our election. the attorney general has recused himself. the deputy who is the nominee here, has the power now and responsibility to do it.
1:50 pm
i've asked him for a commitment that he will do it. so far he has not given that commitment and, therefore, i will vote against him. today, double work against him as long as he declines to give that commitment. thank you, mr. chairman. >> senator cruz. >> thank you, mr. chairman. let me commend the manner in which it conducted at this hearing with fairness, with an opportunity for both sides to ask their questions come to express their views and to address all of the issues that are raised by supreme court nomination. it speaks well that even in this highly contentious, highly partisan time that our colleagues on the democratic side of the aisle have consistently praise your leadership of this committee, and i certainly join in that praise. >> thank you. >> much of the criticism that the democratic senators on this committee have raised about judge gorsuch has focused on a handful of cases, and particular litigants who are sympathetic
1:51 pm
litigants. and focusing on which litigant prevail. i want to take a moment to discuss the relationship of process to results. conservatives and liberals have a different view about the process by which courts should arrive upon their decisions. conservatives understand that it is the role of a judge, especially the role of a supreme court justice, simply to follow the law, to apply the constitution, to apply the bill of rights, to apply statutes passed by congress and signed into law by the president. liberals, on the other hand, by and large view the process as achieving the result that they want, view the process of adjudicating a case as a political process. now, there is a consequence of those two processes. because i will say there is an
1:52 pm
issue at stake here about which principle prevails. and it's a result issue. in many cases you have a conflict between government and individual liberty. and for a liberal judge who is engaged in the results oriented judging, the outcome of that choice is almost always siding with government. it is a support of government power at the expense of individual liberty. on the other hand, for those who would follow the law and follow the constitution and a great many instances individual liberty will and should prevail over government power. and the reason is simple. the constitution has a bias towards liberty.
1:53 pm
if you are following the constitution and bill of rights, you are following a document that was created to protect individual liberty. so for example, on free speech, those on the left at what results oriented liberals on the court view free speech often as an inconvenience, and given a choice between government power and and individuals right to speak in a political context will consistently side with the government power to muzzle the free speech of individual citizens. that is profoundly and consistenconsistently for the ft amendment to the constitution. likewise, the second amendment, the right to keep and bear arms, if you have a liberal results oriented judge who believes in restricting guns, believes and restricting individual liberty to keep and bear arms, then that outcome will be siding with government and the power to take away your right to defend
1:54 pm
yourself come to defend your family, to defend your home. on the other hand, the constitution if you're following the bill of rights has a bias towards individual liberty, the second amendment explicitly protects the individual liberty to keep and bear arms, to protect your family, to protect her life and your loved ones. likewise, when it comes to religious liberty, if a judge s a liberal results oriented judge, and religious liberty is seen as an inconvenience, a minor impediment standing in the way of unfettered government authority. on the other hand, if you have a judge committed to following the constitution and the bill of rights, then the first amendment protection of religious liberty is fundamental and must be protected. it is interesting some of my democratic friends have asked judge gorsuch it would be
1:55 pm
willing to stand up to president donald trump. i'll tell you in the constitutionalist who was following the law is by definition willing to stand up to a president of either party, including the president who appointed him, if that president or that administration exceeds constitutional authority. in my view, and i think the view of the senators on this side of the aisle, we are not confirming a political player. we are not confirming someone who will simply vote with our team on a given issue. and if this president for the next president or the next president contravenes the constitution and bill of rights, contravenes the individual rights of citizens, then i have every hope and expectation that judge gorsuch and any other constitutionalist would without hesitation side with the law
1:56 pm
over government power. that connection between process and results is very real. and this nomination is unusual in the annals of history. it is unusual because the presidential election was in many ways a referendum on this nomination. the vacancy occurred last year in the midst of a presidential election season, in the midst of the primaries. and the senate majority, quite rightly i believe, included that we would not fill the vacancy in the middle of a presidential election, rather we would allow the people to decide what sort of justice would fill the seat. and president trump did an unprecedented step turkey laid out a list of 21 specific nominees, and he promised the american people he would
1:57 pm
nominate from that list. i am not aware of any president in history who has done the same thing, who is laid out for the american people these are the specific individuals from which i will choose this nominee. judge gorsuch was one of those 21. the american people in going to vote in november knew specifically the individuals who would be considered, and then you a very different vision that hillary clinton promised. hillary clinton promised to nominate liberal judicial activists who would undermine free speech, undermine the second amendment, undermine religious liberty. and in november of last year the american people at a choice. this was a referendum on justice scalia's vacancy. and the results of this election i believe was an overwhelming mandate for a justice who will protect our individual liberties, who will follow the constitution, who will follow the bill of rights, who will follow the law.
1:58 pm
given that the american people had the opportunity to vote and choose which path the court should go, i believe that confers upon this nomination a kind of super legitimacy, where it is not just the presidents nomination but it is of the presidency nomination validated by the choice of the american people exercise at the ballot box. now, given that, why is it that our friends on the democratic side of the aisle are so unified in their opposition? in fact, unify to the point of promising an unprecedented filibuster of a supreme court justice. well, the reason is not the merits. there is no credible argument that can be given that judge gorsuch is anything but impeccably qualified to serve on the supreme court. columbia undergraduate, harvard law school, oxford, clerking for justice byron white who i knew was appointed to the court by
1:59 pm
john f. kennedy come serving a decade as a distinguished federal court of appeals judge. on the merits judge gorsuch is indisputably qualified and that's the reason why we had seen a litany of liberals testifying to judge gorsuch's merits. neal katyal, the form acting attorney general for president obama wrote that judge gorsuch was quote, one of the most thoughtful and brilliant judges to serve our nation over the last century. ..
2:00 pm
what did he have to say, quote, the senate should confirm him because there is no principled reason to vote no. it's not conservative saying that, that is a well-known liberal. for that matter, the judge is honest, the post which i might note endorsed hillary clinton in the presidential election. it is not a conservative
2:01 pm
newspaper but here's what the denver post said. , we hope the senate manages to place him on the high court in short order. gorsuch is a brilliant legal mind and talented writer, observers praise him for his ability to apply the law fairly and consistently. we appreciate his desire to strictly interpret the constitution based on the intent of our nation's founders, even when those rulings might contradict his personal beliefs. on the merits, this decision would be easy indeed if these this were being decided on the merits gorsuch would be confirmed and we don't have to speculate about that because he has been. a decade ago when the poor court of appeals. the senate confirmed him by voice vote which means not a single democrat spoke out against his nomination. senator feinstein, not senator leahy, not senator obama, not senator hillary clinton, not senator joe biden. but what's changed in a
2:02 pm
decade ? we have a decade of exemplary service on the court of appeal that makes his nomination stronger but someone else's change, the politics. it's interesting that a number of democratic senators have talked about what they call dark money. organizations that are expressing free speech to share their views about judge gorsuch. there's an irony to the attack of my democratic colleagues. the cause it is indeed because of dark money from corporations that we are seeing this democratic filibuster. what explains the conduct here is simple, it is politics. and the politics are that in the democratic party there are outside groups that are corporations that are organized and formally incorporated . that are spending bath vast sums of money to organize left-wing activists to put political pressure on senate
2:03 pm
democrats. and it is that political pressure which is yielding the unprecedented result here. a democratic senator some weeks ago told me in a moment of candor, you've got to understand all of us on the democratic side were afraid of being primary from the left. we are afraid of doing anything other than opposing trump on everything. that's what we are seeing playing out. it is the action of a handful of left-wing billionaires spending money to organize, activists on the ground that are in effect holding democratic senators hostage. now, that may be the reality of politics, unfortunate reality of politics and where we are but it is not a sound and principled reason to reject a supreme court justice who is unquestionably qualified. and whose nomination enjoys
2:04 pm
the in premature of the american people voting in election and choosing the kind of justice that should replace justice scalia. this week the senate i am convinced will confirm judge gorsuch as the next associate justice on the supreme court. and when that happens, that will be a victory for individual liberty. it will be a victory for the constitution and bill of rights and it will be a victory for the people. thank you, mister chairman. >> thank you mister chairman for the conduct of these hearings, or judge gorsuch i would have liked for the process to have been made available for justice, for judge merrick garland as well. >> when you pull the microphone closer to you please? >> can you hear me now. >> senator fine said speak up
2:05 pm
a little bit. >> i'll get closer. i started off by saying that it would have been great if this process of four days of hearings for judge gorsuch could have been made available for judge merrick garland as well. and the irony is that it was not. and to hear my colleagues talk about how the democratic senators or the democrats are afraid of being primary, please. that hardly even bears any kind of response . from us. over the past two months donald trump has nominated a parade of extreme and unqualified people to important government positions. we have an education secretary who doesn't even believe in public education, treasury secretary who profits from the 2008 mortgage crisis and environmental protection
2:06 pm
agency administrator who seems do not believe in environmental protections. >> i could go on. but when donald trump nominated neil gorsuch, they're on the supreme court you can almost hear an audible gas of relief. present trump didn't nominate a member of his family, he didn't nominate a television personality. he nominated a columbia and harvard educated lawyer with 10 years of experience on the circuit court. but we cannot and should not evaluate judge gorsuch on the basis of, i have to say, a very low bar that president trump has established for his nominees.his credentials are not enough. this is for the highest court of the land, a lifetime appointment, a court that makes decisions that impact all of our lives and should gorsuch get nominated, he will be on that court.
2:07 pm
long before a lot of us are gone. >> and we should not give judge gorsuch pass. because he has these credentials. >> judge for such nomination is a product of a year-long campaign by right-wing organizations who continue to transform the supreme court in its image. in their image. during the campaign, president trump compared for his supreme court nominee. to paraphrase, you wanted someone who would overturn roe v wade. various types of religious freedom of the corporation over the rights of its employees and uphold an extensive view of the second amendment. with this direction the heritage foundation and the federalist society prepared a list of 21 judges who would meet the presidents litmus test and their conservative requirements. for the first time ever, the president of the united states turned over proudly his constitutional duty to
2:08 pm
nominate a supreme court justice to conservative right wing groups. over the past month and month and a half these groups and their secret funders have spent over $10 million to support this nomination. no doubt because their donors are confident about how judge gorsuch will rule on so many of the tough cases that will come before the supreme court. >> why has it been so's persistent along with my colleagues, on this side of the aisle, and asking questions that make sense of what his judicial philosophy would be.this is a critically important question to ask before we decide to give judge gorsuch a lifetime appointment, to the highest court in the land in which there is no appeal. these are the kinds of serious questions i would ask of any nominee, whether the nominee had been one of the democratic or republican president. but when i asked judge
2:09 pm
gorsuch serious questions to understand his judicial philosophy, he told us that his words, his views, his writings and his clearly expressed personal views in the past had no relevance whatsoever to do as a justice. during the hearing, many of my republican colleagues, they said that credentials are enough. that are real question is about judge gorsuch's record, philosophy were somehow irrelevant or even unfair. >> at this argument, just like the well-funded campaign by right-wing groups to confirm neil gorsuch obscures the real stakes. secures the real impact of judge record of saving corporations over individual rights. it obscures the very idea of what it means to be a justice on the supreme court. in my view, we should evaluate this nomination with a clear understanding that there is a great deal of
2:10 pm
difference between how a justice gorsuch would approach a kind of tough cases in the supreme court and what a justice merrick garland would do. does judicial philosophy matter? of course it does. otherwise we wouldn't have 25 to 4 supreme court decisions that impact millions of lives. and to illustrate, we know that justice scalia and justice ginsburg, both legendary jurists who used to go to the opera together would reach dramatically different results in cases that matterdeeply in the lives ofmillions. cases like shelby county , like citizens united, like lily ledbetter , like hobby lobby, like roe v wade.for the people who need justice is most urgently are justices use of the law can make a world of difference. the working families, women, people of color, the lgbt community, immigrants,
2:11 pm
students, seniors and their native peoples, these are the people who will be impacted by the decision a justice gorsuch would make.>> yet and understanding of these people, their lives and how the courts decisions would impact them is what i found to be missing from judge gorsuch's view of the law even though he told me purpose of article 3 courts, federal courts is to protect minority rights. for example, the narrow interpretation of drug gorsuch stop on the individuals with disabilities education act, ida would have left persons and thousands of specialty children like him without a chance to make real educational progress. the supreme court unanimously rejected and criticized judge gorsuch's narrow standard just two weeks ago. >> 's standard was too much even for justice roberts.
2:12 pm
>> and in the case of alfonse, judge gorsuch's narrow approach to the law was essentially a terrible choice between freezing to death or being fired. and judge gorsuch's decision in holly a lot hobby lobby found the right to religious liberty for a corporation that employed thousands of people. i always thought it was odd that people thought hobby lobby as a family-owned business when they actually employed over 20,000 people across the country. is his decision made no assessment of the terrible impact on his decision had for the thousands of working women at the hobby lobby company would now be denied access to contraceptive coverage. >> a careful reading of judge gorsuch's decisions reveal a pattern of being on the side of corporations and against the side of individuals. interviewing the clear
2:13 pm
propensity of the roberts court to support corporate interests over individual rights. because even when he narrows the law in ways the law of purpose and as thomas says in the thurber case, when he throws up his hands and tells congress to do better next time if we disagree with his narrow reading of relevant law. potential judges and smart judges but credentials are not enough. especially in court, or any court for that matter that makes decisions that affect so many lives. we have although also over the argument that the democratic opposition to judge gorsuch's nomination is somehow unfair in contrast to republican treatment of president obama's pre-court nominees. it is hard to believe that anybody can make these arguments with a straight face. every republican on this
2:14 pm
committee except for senator graham opposed the nominations of both justices soto meyer and kagan. these arguments omit any mention of president obama's supreme court nominee merrick garland, a moderate, well credentialed, well respected chief judge of the circuit. yet those nominations are extending for nearly a year, he was never given a hearing, let alone a vote and many republican senators did not even extend the courtesy of meeting with judge merrick garland. republicans kept this for a year after justice scalia's death and unprecedented arrogant act. apparently president obama's nominee didn't even deserve the kind of hearing that we have afforded to judge gorsuch. several republicans said during the campaign that they would be comfortable keeping this seat on the supreme court open and for more 4 to 4 decisions for another four
2:15 pm
years if hillary clinton had gotten elected. now that donald trump as president has made his pick, republicans have rediscovered their sense of urgency in filling the seat. they have argued that it is an improper abuse for even a personal affront to judge gorsuch if we don't rally to confirm him and do it lickety-split. i have serious concerns about the senate republican leadership to jan this nomination through more quickly than for any recent supreme court nominee. majority leader mcconnell's intention is to confirm judge gorsuch by the end of this week and yes , he said he would do this one way or another. judge gorsuch will be confirmed by majority leader mcconnell, the same person who said we would have no hearings on it merrick
2:16 pm
garland so this vote would come after only four days affordable debate, less time than for any supreme court nominee dating back to at least 1975, far short of the 13 days on average the senate takes to debate a supreme court nomination. >> having left the sea open for almost a year and with the stakes of this lifetime appointment so high for the american people, people might rightly ask why the rush? why force the issue? and create a crisis mark why not? with the senate allowing for serious debate on such a critical nomination. some reports it seems that part of the answer is that judge gorsuch is supported including the right-wing groups that have launched a 10 million campaign on his path, want him on the court by the middle of this month and are inclined to hear a particular case called trinity lutheran church the college. they want him to rule on this case which would tear down important long-standing various protecting our
2:17 pm
constitutional separation of church and state. this undermines all the right-wing, not just statements that judge gorsuch has approached to the law and judicial philosophy don't matter. judge gorsuch is supported want him in the court to hear a particular case with major ramifications. they clearly have a very good idea of how this nominee, their nominee was selected by then. justice are confident that he meets the litmus test of the president nominated him. this is no reason to rush hour consideration or deny the senate and the american people the time for serious debate on this nomination. doing so would undermine our constitutional role. >> and supreme court vacancy isn't just another position. we must fill in our federal
2:18 pm
judiciary. >> the supreme court vacancy is a solemn obligation owed to generations. the central question for me in looking at judge gorsuch and his record and listening carefully through four days of hearings is whether he would be a justice for all of us. or a justice for some. i do not believe judge gorsuch will be a justice for all of us. i will not support him. >> thank you senator tellis. thank you mister chair and i want to join the chorus of people. >> we've got just two speakers left and then we will immediately go to the boat so i hope everybody can be back here. >>. >> i'm going to be brief and to save my comments for the floor speech, i do want to thank senators blake for wearing tar heel blue ties today . mister chair, i'm not going to repeat what was said by everybody else here except to
2:19 pm
say that i really appreciate, lindsey graham, senator graham's leadership and consistency on this issue. the fact of the matter is in spite of the fact that there were states out there by white house staff, kagan is a progressive in the mold of obama himself, elaine and kagan clearly illegal progressive and comes from the progressive side of the spectrum. and then president obama himself said that he wanted judges that had a quality of empathy, although this is the exact opposite and no more, he recognizes there's no place for empathy on the bench. and i said that he had and before luke c. what he told in response to one of the questions from my friends on the other side of the aisle , he said in response it's not my job to do your job. some of the cases we are having concerns with here are because the remembers who passed laws that were either not clear or incomplete with respect to how they would
2:20 pm
have liked the judge to rule. if you take a look at hobby lobby, ask yourself why one of the primary sponsors of retro when he was in the house, senator schumer obviously had a hand in obamacare here, you all had a super majority . they stay from. you could go back and look at ida in the case of loot team. everybody in top five on the decision last week dismissing the point that it's still the inaccurate policies that were passed out of congress that are still going to cause children were caused parents and children with autism the ability to have an educational choice that makes sense. we still got to do our job here. i'm glad it was brought up by so many members because i hope we can count on your support or a bill that will take care of that. the, you go on extremely unqualified, the only way you
2:21 pm
can use that word for neil gorsuch is to say he's extremely qualified. he deserves confirmation on the bench. the number of times he's voted in the majority, the number of times it's been unanimous, we don't have to go through that but if i'm a judge on his circuit, i wouldn't want to come before this committee. because it sounds like you all would have the same argument for voting him. they share the same record, whether it's 99 or 97 percent so you're shutting down the whole circuit in terms of a future pipeline of judges. i would be curious if we see one in the future whether or not there what there will be intellectual consistency and honesty when we do that but mister chair, i with my practice of remaining brief, i'm going to conclude my remarks also to say i look forward to confirming judge gorsuch. >> he deserves to be on the bench, i regret that it may have to be done under the circumstances that we are doing because it will necessarily mean that the other judges that we have potential other, vacancies in this administration will not
2:22 pm
come from the pool that judge gorsuch did. and that's as a result of forcing a partisan filibuster which is almost certainly not going to succeed. and finally, i do also look forward to supporting the nomination and confirmation of mister rosenstein and miss brandt, thank you mister chair. >> senator kennedy. >> mister chairman, you've done a terrific job with these hearings, i think everybody's had their say and i appreciate that. i want to make the three, maybe four quick points. >> number one, there are of course two issues for the senate. the first is, should we affirm or should we not affirm neil gorsuch as associate justice? the united states supreme court.
2:23 pm
>> but there's an equally important second issue. and that is should we get to vote it all. now, the first issue is pretty straightforward. either vote yes, sir no. and of course this will be a unanimous decision, sometimes reasonable people disagree. sometimes unreasonable people disagree.>> but we all have our personal beliefs and as members of congress, we are allowed, we're all from different states, this is a diverse union and i think everybody understands that and appreciate that. but the second question, did we get to vote at all? is just as important if not more important than the first. now, everyone here has a
2:24 pm
right to filibuster. and our friends who happen to be democrats have a right to filibuster. and prevent us from taking a vote. it will be a first. there has never been a supreme court nominee by either the democratic president or republican president who has been filibustered to death for partisan reasons in the history of the united states senate or in the history of the united states. and there's a reason for that. it's because nominations to the united states supreme court are different and they should remain difference. and my friend senator durbin, i was listening carefully when he talked about this process becoming like the
2:25 pm
movie casablanca. you filibuster this nomination to death and it will turn in to the movie the hateful eight. >> or if you allow the partisanship of the legislative side to bleed over to the supreme court side, it will at least become a quentin tarantino version of groundhog day. and i don't think that's what the american people want and i don't think that's what they deserve. .2. judge gorsuch has been accused of having an agenda. look, i'm not buying it. i didn't read all 2700 opinions. but i read about 20. and i look for an agenda. because i don't want a politician on the united states supreme court. i don't want somebody blinded
2:26 pm
by ideology. i want the judge area i read at least 20 of his opinions and i'll tell you what i saw, i saw the same thing over and over and over again. i'm going to read you two sentences from amb owens which by the way, he voted against a police officer not for, he voted against a police officer who arrested 13-year-old seventh graders for fake burping in class. judge gorsuch said i don't think you need to arrest him. maybe discipline. but don't arrest him. the majority said he can't be arrested and the police officer has qualified immunity. judge gorsuch said that's a bridge too far. and in dissenting, this is what he said. and you see this language time and time and time again. quote, often the law can be an ass.
2:27 pm
an idiot. he's quoting charles dickens. and there is little we judges can do about it. for it is or should be emphatically our job to apply not the right the law enacted by the people's representatives. indeed, a judge who likes every result he reaches is very likely a bad judge. >> reaching for results he prefers rather than those law compels. now, that my colleagues is not an agenda. that's a judge. >>.3. some have criticized judge gorsuch for voting for the big guy. the big gal. whatever that is. here's the commitment, chairman i will make to you
2:28 pm
and to god and country. as long as i'm on the judiciary committee, if this president or any president ever nominates someone to serve in the federal judiciary, who says that he or she will be influenced by the wealth, the power or be parties, i will vote against and you can take that home to mama. every single time. because the wealth and power of the party should have absolutely nothing to do with who wins the case. .3. judge gorsuch has been criticized for not telling us what his position is on abortion. and he's been criticized for not telling us what his position is on gun control. and he's been criticized for
2:29 pm
not telling us what his position is on the eighth amendment for the 10th amendment or the ninth amendment. >> and he's guilty. >> he can't. he would violate his oath of office. he would violate the oath of office on the 10th circuit court of appeals and he violated his oath of office when it would come from associate justice of the united states supreme court. >> look , here it is. and in 386 of the code of conduct for united states judges, it says quote, a judge shall not make public comment on the merits of the matter pending organ pending in any court. here it is, rule 210b of the american bar association model code of judicial conduct. quote, a judge shall not in connection with cases controversies or issues that are likely to come before the
2:30 pm
court make pledges, promises or commitments that are inconsistent with the impartial performance of their adjudicative duties of the judicial office. criticizing him if you want but don't criticize him for what he can't do. in violating his oath. mister chairman, we are all entitled to our opinions, that's what's great about america. i've been around a lot of smart people. some have been i've met in the last 90 days. but this man is a thoroughbred. a legal rock star as far as i'm concerned. and i'm going to vote for him enthusiastically. vacuum mister chairman. >> thanks everybody for being courteous to everybody else and hearing everybody else out we are now ready to vote
2:31 pm
on the nomination of judge neil gorsuch to be associate justice supreme court. i would ask the court to call the role. [roll call] according to the vote a majority having supported the nomination, the
2:32 pm
nomination will be reported to the floor. as i mentioned earlier, i will put my statement in support of both mister rosenstein and mister, ms. france in the record. i'm not going to take time to speak on them now but they are both highly qualified nominees and i said earlier as compared even to the justice department have senior leadership in place as soon as possible and i would like to call on senator feinstein. >> thank you mister chairman. i intend to vote aye on mister rosenstein and no on this brand and the like to put a statement in the record if i may. >> your statement will be put in the record, anybody else want to speak? senator clover chart. >> i'm going to put a statement on the record, i'm voting know today and i have questions that haven't been answered so right now i'm voting that way i want to see if i can get some answers, i
2:33 pm
didn't get answers at the hearing as we had both of them together and i have follow-up questions, thank you. >> i don't see anybody else requesting time so i would ask the clerk to call the role. >> mister hatch. >> mister graham. >>. [roll call]
2:34 pm
>> majority of the committee having supported it, the nomination will be reported to the floor. anybody want to speak on miss brand? okay. i think we are ready to vote then. the clerk will call the roll. >>. [roll call] >>. [roll call] >> majority of the committee is in favor of miss brand,
2:35 pm
the nomination will be reported to the floor. committee meeting is adjourned, thanks everybody for their participation. >> thank you mr. chairman.
2:36 pm
2:37 pm
>>. [inaudible conversation] >>. [inaudible conversation] >>. [inaudible conversation] some
2:38 pm
2:39 pm
of the democratic senators on the judiciary committee still in the room here in the senate office building and just having voted right along strict party lines, 11 to 9 that they would be supporting the nomination of judge neil gorsuch for the supreme court. president trumps nominee and

74 Views

info Stream Only

Uploaded by TV Archive on