Floor Statements

Mr. President, finally, one final issue, the nomination of Rod Rosenstein to be Deputy Attorney General, which we will vote to proceed on later tonight.

I sat down with Mr. Rosenstein a few weeks ago and spent time asking him about his career, his views on the Department of Justice, and protecting the integrity of the Department. I came away with the impression that he is someone who is independent, who would stand up for the law, regardless of which party controlled the White House, and his career backs that up.

With respect to the executive branch investigation into ties between the Trump campaign and Russia, Mr. Rosenstein committed to me he would appoint a special counsel to conduct that investigation if one is required. He has developed a reputation for integrity. He has promised to give this issue careful consideration. I believe, if he studies the Department regulations, he will come to the same conclusion many of us have; that a special counsel is merited.

For those reasons, I will be voting for cloture this evening and voting for his confirmation.

Thank you, Mr. President.

I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

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

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

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

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

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

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

Mr. President, today I wish to recognize the life and service of Col. Ossen D'Haiti, who is retiring from Active Duty in the U.S. Marine Corps after 27 years.

From an early age, he felt called to military service and attended the U.S. Merchant Marine Academy at Kings Point. As an engineering cadet, he sailed abroad on four ocean-going vessels with port calls in Egypt, Israel, Greece, Italy, Spain, Germany, Holland, and England. In 1990, he graduated Kings Point with a bachelor of science in marine engineering and a U.S. Coast Guard third assistant engineer's license.

Commissioned as a Marine Corps officer, Colonel D'Haiti spent the next 27 years as an AV-8B Harrier pilot, completing notable assignments both in and out of the cockpit. He has deployed with aviation detachments aboard the USS Nassau, LHA-41, and the USS Bonhomme Richard, LHD-6, and has flown over 150 combat missions during Operations Joint Endeavor and Guardian Retrieval in 1996, Operations Enduring Freedom and Anaconda in 2002,

and Operation Iraqi Freedom in 2006-2007. He has also served on the staff of the Secretary of Defense, the Secretary of the Navy, the Commandant of the Marine Corps' Strategic Initiatives Group, and the Marine Corps Forces Central Command Coordination Element forward deployed in Bahrain. His personal decorations include the Defense Superior Service Medal, the Meritorious Service Medal with Gold Star in lieu of Second Award, the Air Medal with 6 strike device, the Navy Marine Corps Commendation Medal with Gold Star in lieu of Second Award, as well as numerous campaign and service awards.

While serving, Colonel D'Haiti also made numerous civic contributions and is a leader within his community. After a 7.0 magnitude earthquake devastated Haiti in 2010, Colonel D'Haiti volunteered for nearly a month with the Haiti Micah Project, working to provide hot meals and shelter to street children in Mirebalais. Colonel D'Haiti is married to the former Maxine Hall of Sharon, MA, and loving father to Elizabeth, Grace, and Benjamin.

On behalf of my colleagues in the U.S. Congress and the thousands of sailors and marines you have led and mentored, thank you. Your life and service are the hallmark of the American Dream and will be an enduring inspiration for generations of young men and women after you. I wish you fair winds and following seas in all of your future endeavors.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, first, I sat at the back of the room to listen to my colleague from Illinois. I know he got up because he wanted very much to respond to the majority leader, and I thought he did a great job. It was a pleasure to listen, as always, to one of the most articulate Members with whom I have ever served in any legislative body, as well as his having many other good traits.

Mr. President, today is Equal Pay Day. Unlike many holidays on our calendar, Equal Pay Day is not actually a commemoration of some achievement. Equal pay for women is still not close to a reality. Women still make 79 cents for every dollar a man makes in the same position. African-American women are making 64 cents on the dollar. Latina women are making 54 cents on the dollar. That is not right. It is holding the American dream out of reach for too many women in this country. So Equal Pay Day is not a commemoration; it is a reminder that glass ceilings are everywhere and that there are hugely consequential and tangible barriers that women face every single day that men do not.

In 2007, the Supreme Court, in a 5-to-4 decision by the conservative majority in Ledbetter v. Goodyear, ruled that Lilly Ledbetter could not pursue her claim that she was entitled to equal pay. The Lilly Ledbetter Fair Pay Act, which reversed this unfair Supreme Court decision, was the first bill President Obama signed into law in 2009.

There are clearly principled reasons to oppose Judge Gorsuch, and enough of us Democrats have reasons to prevent his nomination from moving forward on Thursday's cloture vote.

The question is no longer whether Judge Gorsuch will get enough votes on the cloture motion; now the question is, Will the majority leader and our friends on the other side break the rules of the Senate to approve Judge Gorsuch on a majority vote? That question should be the focus of the debate here on the floor, and it should weigh heavily on the conscience of every Senator.

Ultimately, my Republican friends face a simple choice: They can fundamentally alter the rules and traditions of this great body or they can sit down with us Democrats and the President to come up with a mainstream nominee who can earn bipartisan support and pass the Senate.

No one is making our Republican colleagues change the rules. No one is forcing Senator McConnell to change the rules. He is doing it of his own volition, just as he prevented Merrick Garland from getting a vote of his own volition. Senator McConnell and my Republican colleagues are completely free actors in making a choice--a very bad one, in our opinion.

I know my friends on the other side of the aisle are uncomfortable with this choice, so they are scrambling for arguments to justify breaking the rules. Let me go through a few of these justifications and explain why each does not hold up.

First, many of my Republican colleagues will argue that they can break the rules because ``Democrats started it in 2013'' when we lowered the bar for lower court nominees and Cabinet appointments.

Let's talk about that. The reason Majority Leader Reid changed the rules was that Republicans had ramped up the use of the filibuster--the very filibuster they now decry--to historic proportions. They filibustered 79 nominees in the first 5 years of Obama's Presidency. Let's put that into perspective. Prior to President Obama, there were 68 filibusters on nominations under all of the other Presidents combined, from George Washington to George Bush. We had 79. Our colleagues and Leader McConnell, the filibuster is wrong? There were 79--more than all of the other Presidents put together. The shoe was on a different foot.

They deliberately kept open three seats on the second most important court in the land--the DC Court of Appeals--because it had such influence over decisions made by the government. This is the court, other than the U.S. Supreme Court, that the Federalist Society and the Heritage Foundation hate the most. The deal that a

number of Senators made in 2005 allowed several of the most conservative judges to be confirmed to that court--very conservative people. It left a bad taste in my mouth, and I am sure in my colleagues' and in many others.

But then, when President Obama came in, they insisted on not filling any additional seats on the court--which, of course, would have been Democratic seats--and eventually held open 3 of the 11 seats on that court. They said they would not allow those seats to be filled by President Obama--an eerie precedent, which the majority leader repeated with Merrick Garland. He didn't want the DC Circuit to have Obama- appointed, Democratic-appointed nominees; he didn't want that on the Supreme Court, so he blocked Merrick Garland. He didn't want it on the DC Circuit, so they wouldn't let any of President Obama's nominees come to the floor.

Merrick Garland's nomination was not the first time the majority leader held open a judicial seat because it wasn't the President of his party, and that was not during an election year.

At the time, I spoke with my good friend from Tennessee, Senator Alexander. I asked him to go to Senator McConnell and tell him that the pressure on our side to change these rules--after all of these unprecedented numbers of filibusters--was going to be large. I said to Senator Alexander: Let's try to avoid it. But Senator McConnell and Republicans refused all of our overtures to break the deadlock they imposed.

To be clear, Democrats changed the rules after 1,776 days of obstruction on President Obama's nominees. My Republican friends are contemplating changing the rules after barely more than 70 days of President Trump's administration. We moved to change the rules after 79 cloture motions had to be filed. They are talking about changing the rules after 1 nominee fails to meet the 60-vote threshold.

So, yes, Democrats changed the rules in 2013, but only to surmount an unprecedented slowdown that was crippling the Federal judiciary, and we left the 60-vote threshold intact for the Supreme Court deliberately. We could have changed it. We had free will then, just as Senator McConnell has it now. But we left the 60-vote threshold intact for the Supreme Court because we knew and know--just as our Republican friends know--that the highest Court in the land is different.

Unlike with lower courts, Justices on the Supreme Court don't simply apply precedents of a higher court; they set the precedents. They have the ultimate authority under our constitutional government to interpret the law. Justices on the Supreme Court should be mainstream enough to garner substantial bipartisan support; hence, why we didn't change the rules; hence, why we believe in the 60-vote threshold; and hence, why 55 or 60 percent of all Americans agree with the 60-vote threshold, according to the most recent polls. To me, and I think to most of my friends on the Republican side, that is not a good enough reason to escalate the argument and break the rules for the Supreme Court.

Second, as I have mentioned, I have heard my Republican friends complain that Democrats are conducting the first partisan filibuster of a Supreme Court nominee in history, so that is the reason they can justify breaking the rules because Democrats are the ones taking it to a new level. Again, I have just two words for my Republican friends: Merrick Garland. The Republican majority conducted the first partisan filibuster of a Supreme Court pick when their members refused to have hearings for Merrick Garland.

In fact, what the Republicans did was worse than a filibuster. The fact is, the Republicans blocked Merrick Garland using the most unprecedented of maneuvers. Now we are likely to block Judge Gorsuch because we are insisting on a bar of 60 votes.

We think a 60-vote bar is far more in keeping with tradition than what the Republicans did to Merrick Garland. We don't think the two are equivalent. Nonetheless, in the history of the Scalia vacancy, both sides have lost. We didn't get Merrick Garland; they are not getting 60 votes on Judge Gorsuch.

So we are back to square one right now, and the Republicans have total freedom of choice in this situation.

Finally, Republicans have started to argue that because Democrats will not confirm Judge Gorsuch, we will not confirm anyone nominated by President Trump, so they have to break the rules right now. That is an easy one. I am the Democratic leader. I can tell you myself that there are mainstream Republican nominees who could earn adequate Democratic support.

And just look at recent history. Justices Roberts and Alito, two conservative judges who many of us on the Democratic side probably don't agree with, both earned over 60 votes. They got Democratic votes. While there was a cloture vote on Justice Alito, he was able to earn enough bipartisan support that cloture was invoked with over 70 votes. He got only 58 when we voted for him, but the key vote was the cloture vote.

Let's have the President consult Members of both parties--he didn't with Gorsuch--and try to come up with a consensus nominee who could meet a 60-vote threshold. That is what President Clinton did with my friend, the Senator from Utah, in selecting Justices Ginsberg and Breyer. It is what President Obama did with Merrick Garland.

Of course, we realize a nominee selected this way would not agree with many of our views. That is true. But President Trump was elected President, and he is entitled by the Constitution to nominate. But Judge Gorsuch is so far out of the mainstream that the Washington Post said his voting record would place him to the right of Justice Thomas. He was selected by the Heritage Foundation and the Federalist Society without an iota of input from the Senate.

There is a better way to do this. I know it sometimes may seem like a foreign concept in our hyperpolarized politics these days, but there is always the option of actually consulting Democrats on a nominee and discussing a way forward that both parties can live with. We are willing to meet anywhere, anytime.

So my friends on the other side can dredge up these old wounds and shopworn talking points if they choose. If Republicans want to conduct a partisan, ``they started it'' exercise, I am sure we could trace this all the way back to the Hamilton-Burr duel. But at the end of the day, they have to confront a simple choice: Are they willing to break the rules of the Senate or can they work with us on a way forward? I, for one, hope we can find a way to compromise. Judge Gorsuch was not a compromise. He was solely chosen without any consultation. So it is not that there is a Merrick equivalency.

My friend the majority leader said: ``I think we can stipulate that in the Senate it takes 60 votes on controversial matters.'' If anything is a controversial, important matter, it is a selection for the Supreme Court, and Senator McConnell has repeatedly stood for the rightness of 60 votes on important and controversial issues.

If Senator McConnell wants to change his view on the 60 votes all of a sudden and Republicans decide to go along with him, it will not be because Democrats started it, because that is not true. It will not be because Democrats will not confirm any President Trump-nominated Justice, because that is not true. It will be because they choose to do so, and they will have to bear the unfortunate consequences.

Mr. President, I yield the floor.

Mr. President, before I begin the substance of my remarks, I want to first welcome our coal miners from West Virginia here, and I thank them for the hard work they have done through the years to make America the outstanding country that it truly is.

Also, I want to tell you, first, your Senator from West Virginia--you don't have a better fighter than in anyone but him. Second, I am totally committed to making this happen for you, and I will do everything in my power. Our entire caucus--all 48 of us--are completely behind you.

I thank my friend from West Virginia.

Mr. President, as each hour brings us closer to the cloture vote on the nomination of Judge Neil Gorsuch to the Supreme Court and a potential rules change if that vote fails, I rise this afternoon to entreat my friend, the majority leader, to step back from the brink.

As I and so many other of my colleagues have made clear, we Democrats have principled reasons to vote against this nominee on tomorrow's cloture vote. First, he has instinctively favored corporate interests over average

Americans. Second, he hasn't shown a scintilla of independence from President Trump. And third, Judge Gorsuch, based on his record and history, has a deeply held, far-right special interest judicial philosophy that is far out of the mainstream.

He was selected from a list developed by the very hard-right, special interest Heritage Foundation and Federalist Society. The Washington Post, after analyzing his decisions on the Tenth Circuit, concluded that Judge Gorsuch may be the most hard, conservative Justice on the bench, to the right of even Justice Thomas.

It may seem abstract to many Americans, but Judge Gorsuch's judicial philosophy matters a great deal. It will affect dozens of decisions and decades of jurisprudence that could have far-reaching consequences on the lives of average Americans.

As Emily Bazelton in the New York Times put it: ``[T]he reality is that Judge Gorsuch embraces a judicial philosophy that would 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.''

If that philosophy becomes the majority view on the Supreme Court, average Americans are in big, big trouble.

The prospect concerns almost every Democrat here in this body, enough to prevent cloture on Judge Gorsuch's nomination tomorrow.

This leaves the majority leader and my Republican friends with a choice: Break the rules of the Senate or sit down with us Democrats and the President to come up with a mainstream nominee who can earn enough bipartisan support to pass the Senate.

We Democrats believe the answer isn't to change the rules; it is to change the nominee, as Presidents of both parties have done when a nominee fails to earn confirmation. Instead, my Republican friends seem intent on breaking the rules for Judge Gorsuch and are trying to find reasons to justify it.

The truth is, each side can blame the other. We believe they are more in the wrong. They believe we are more in the wrong. The game of pointing fingers and ``they started it'' can go back and back and back to the very founding of the Republic.

If my Republican friends think that they have to change the rules because this blame game has gotten so far out of hand that Democrats will never pass a Republican-nominated Supreme Court Justice, I would remind them of Justices Alito and Roberts, two conservatives who, nonetheless, passed the Senate, having met a 60-vote bar. That was during a pretty contentious time as well.

If my Republican friends think that what we Democrats did in 2013 was so wrong and that is the reason to break the rules, I would remind them that the only reason we changed the rules was because the Republican minority in the Senate had forced cloture petitions to be filed on more nominees under President Obama's first 5 years than in all the 225 years before him combined. They forced the majority leader to file more cloture petitions for President Obama's nominees than all the cloture petitions filed from George Washington through George W. Bush.

When we Democrats changed the rules, however, we purposefully left the 60-vote bar for the Supreme Court intact because we knew, as the Republicans know, that the Supreme Court is different. Justices on the Supreme Court don't simply apply the precedents of a higher court. They set the precedents. That is why Justices should be mainstream enough to garner substantial bipartisan support.

If the majority leader breaks the rules tomorrow--that is his choice--he would be forever unwinding that important principle, erasing the last shred of bipartisanship in the Senate confirmation process.

If my Republican friends think a filibuster on Judge Gorsuch is so wrong that they have cause to break the rules, I would remind them that almost every one of them lined up behind the majority leader when he vowed mere hours after the death of Justice Scalia that President Obama would not get to fill a Supreme Court seat, despite 11 months left in his Presidency. That was much worse than a filibuster. Even my friend, the Republican Senator from Tennessee, called it ``audacious.'' But I think Representative Adam Schiff of California said it best: ``When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.''

The fact is, the Republicans blocked Merrick Garland using the most unprecedented of maneuvers. Now we are likely to block Judge Gorsuch because we are insisting on a bar of 60 votes.

We think a 60-vote bar is far more in keeping with tradition than what the Republicans did to Merrick Garland. The majority leader himself has stipulated--this is Mitch McConnell's quote: ``In the Senate . . . it takes 60 votes on controversial matters.'' On the other hand, there is absolutely no precedent, rule, tradition, or custom that can justify what the Republicans did to Merrick Garland, none.

The two are not equivalent. Over the long history of partisan combat over judicial nominations, of course there is blame on both sides. We don't believe the blame should be equally shared between Republicans and Democrats.

The Republican Party has been far more aggressive in employing new tactics and escalating old ones to fight the nominees of a President of the opposing party. The Republican Party has been far more aggressive in their selection of judicial candidates, picking judges who have an ideology closer to the conservative extremes of American politics, while Democrats have tended to select candidates closer to the center.

Keep this in mind: The last time a Republican-controlled Senate confirmed a Supreme Court nomination of a Democratic President was 1895.

Let me repeat that amazing fact. The last time a Republican- controlled Senate confirmed the Supreme Court nomination of a Democratic President was 1895.

So we can argue endlessly about where and with whom this all started. Was it the Bork nomination, which received a vote in a Democratic Senate, by the way? Or was it the obstruction of judges under President Clinton? Was it when Democrats blocked a few judges under President Bush or when Republicans forced Democrats to file more cloture petitions in 5 years of President Obama's Presidency than during all other Presidencies combined? Was it Judge Garland or Judge Gorsuch?

Wherever we place the starting point of this long, twilight battle over the judiciary, we are now approaching its end point. We are nearing the final hour, and the stakes are considerable.

After the cloture vote on Judge Gorsuch, Democrats will have been denied Merrick Garland due to tactics we felt were unfair and Republicans will have been denied Judge Gorsuch because of tactics they think are unfair. Our two parties have traded bitter blows. In the tortured history of the Scalia vacancy, the debate has been saturated with contradiction. But in a very real sense, even though each side thinks their side is more right than the other, neither side is happy with how we got here.

Now we are standing on the brink of an irrevocable change to the way this body conducts business. As the majority leader once said: Changing the rules is a bell that is very hard to unring.

As the clock ticks steadily toward tomorrow, what are we going to do? I, for one, would like to see us step back from the brink. As the Democratic leader, I still hope that I can sit down with the Republican leader and find a way out of this pernicious cycle. I believe that as leaders of our respective caucuses, it is at least up to us to try for the sake of the Senate. The Republican leader and I disagree on a great many things, but we agree upon the importance of the Senate in American life. We can decide today to commit to solving this problem. Each side can stop pointing fingers. Each side can lay down their arms. Each side can put aside the resentments built up after years of trench warfare on nominees. We can decide today to talk about a way out of this impasse instead of changing the rules.

We both lost Supreme Court nominees. We shouldn't also lose a longstanding rule of the Senate that encourages our two parties to work together to fulfill one of the Senate's most important functions.

So the option to sit down with us Democrats and talk about a new nominee who can gain sufficient bipartisan

support remains on the table right now. I hope my friend the Republican leader thinks about where we are headed and takes a moment to let reason and prudence prevail over rancor and haste.

Just as the majority leader holds the power to exercise the nuclear option, he also has the power to avoid it. If the majority leader is willing to cooperate in a bipartisan way, if he is willing to sit down with us in good faith and try to find a way out, he will find an open door and an open mind, and maybe, maybe we can for the moment avoid an outcome that no Senator from either side wants to see.

I yield the floor.

Mr. President, this past week, the American people have been exposed to a contentious debate here on the Senate floor about the nomination of Judge Gorsuch to the Supreme Court.

The American people have heard many arguments about the judge's merits and his shortcomings. They have also heard Senators litigate four decades of fierce partisan wrangling over the composition and direction of the Federal judiciary. That debate, that long debate, has informed the current one about Judge Gorsuch. Newer Members may not remember all the details. Friends of mine, like Senator Hatch, probably remember too many of them. Still, the vote on Judge Gorsuch and the decision by the majority leader to move to change the rules has roped in all of that history.

Now, how did we get here? The truth is, over the long history of partisan combat over judicial nominations, there is blame on both sides. We believe that the blame should not be shared equally between Republicans and Democrats. We believe the Republican Party has been the far more aggressive party in the escalation of tactics and in the selection of extreme judicial candidates, while Democrats have tended to select judges closer to the middle.

Keep this in mind: The last time a Republican-controlled Senate confirmed the Supreme Court nomination of a Democratic President was 1895. Nonetheless, each side comes here today in full confidence that their side is in the right. It was once said that ``antagonism is never worse than when it involves two men each of whom is convinced that he speaks for the goodness and rectitude.'' So it is today.

My Republican friends feel that they have cause to change the rules because the Democrats changed the rules on the lower court nominees in 2013. We believe we had to change the rules in 2013 because the Republicans ramped up the use of the filibuster to historic proportions, forcing more cloture votes under President Obama than during all other Presidents combined--more cloture votes under Obama than under George Washington all the way through to George Bush.

My Republican friends think they have cause to change the rules because we are about to deny cloture on the nomination of Judge Gorsuch. We believe what Republicans did to Merrick Garland was worse than a filibuster, declaring mere hours after Justice Scalia's death that they would deny the constitutional prerogative of a President with 11 months left in his term. As my colleague from Illinois noted, we did not hear two words in the long speech of Senator McConnell: Merrick Garland.

We could relitigate these debates for the next hour, mentioning everything the Republican leader left out in his remarks. In fact, I am pretty sure we could argue endlessly about where, and with whom, this all started. Was it the Bork nomination or the obstruction of judges under President Clinton? Was it when Democrats blocked judges under President Bush or when Republicans blocked them under President Obama? Was it Judge Garland or Judge Gorsuch? Wherever we place the starting point of this long twilight battle over the judiciary, we are now at its end point.

These past few weeks, we Democrats have given Judge Gorsuch a fair process, something Merrick Garland was denied. My colleagues came into this debate with an open mind. I think many of them wanted to vote for Judge Gorsuch at the outset. So we met with the nominee. We consented to and participated in his hearing. But over the course of the hearing, during which Judge Gorsuch employed practiced evasions and judicial platitudes, the mood of our caucus shifted. Without so much as a hint about his judicial philosophy, without a substantive explanation of how he views crucial legal questions, all we had to go on was his record, and the more we learned about Judge Gorsuch's record, the more we didn't like.

Judge Gorsuch has shown in his rulings and in his writings to side almost instinctively with corporate interests over average Americans. He hasn't shown independence from the President, who so routinely challenges the legitimacy of the judiciary. While he has made a studious effort to portray himself as thoughtful and moderate, his record shows that, far from being the kind of mainstream candidate for the Supreme Court that could earn 60 votes, he may very well turn out to be

one of the most conservative Justices on the bench. An analysis of his record in the New York Times showed he would be the second most conservative Justice on the bench, and one in the Washington Post showed he would be the most conservative Justice, even to the right of Justice Thomas.

For these principled reasons, Judge Gorsuch was unable to earn enough Democratic support for confirmation. Because of that, the majority is about to change the Standing Rules of the Senate to allow all Supreme Court nominees to pass on a majority vote.

It doesn't have to be this way. When a nominee doesn't get enough votes for confirmation, the answer is not to change the rules; it is to change the nominee. Presidents of both parties have done so in similar situations. On several occasions, Supreme Court nominees were withdrawn because they did not have enough support; one was even withdrawn after a failed cloture vote.

So this week we have endeavored to give the majority leader and my friends on the other side of the aisle a way out of this predicament. We offered them the option to sit down with us Democrats and the President and discuss a nominee who would earn enough bipartisan support to pass the Senate, not one vetted only by far-right special interest groups.

I came here to the floor each day and made an offer to meet anywhere, anytime to discuss a new nominee. I hoped, perhaps naively, that we could discuss a way forward that both our parties could live with. Unfortunately, there were no counteroffers or discussion offered by the other side. But our offer was meant sincerely.

Democrats and Republicans are caught in such a bunker mentality on this issue that we are just talking past each other. I know that many of my Republican friends are squeamish and uncomfortable with the path we are on, as we Democrats are as well. We have reached a point where the level of distrust is so high on this issue, we can't even sit down and talk.

My Republican friends dismiss out of hand the notion that Democrats will ever vote to confirm a Republican-nominated judge, despite the fact that there were Democratic votes for both Justices Roberts and Alito to get them over 60 and despite our plangent attempts to convince them otherwise. But make no mistake about it, for all the back and forth, when history weighs what happened, the responsibility for changing the rules will fall on the Republicans' and Leader McConnell's shoulders. They have had other choices; they have chosen this one. No one forced them to act; they acted with free will. We offered them alternatives; they refused. They hardly entertained any other possibilities. It seemed that the Republican leader was, from day one, intent on changing the rules if he didn't get his way.

Frankly, this is how so many of our Republican friends have approached the judiciary for a long time. For two decades, they have done whatever it has taken to move the bench to an ideological, far- right position. Independent experts have stated that we have a more conservative Supreme Court than we have had in a very long time. Nothing--not even the rules, not even the comity of the Senate--seems to stop them.

When the dust settles, make no mistake about it, it will have been the Republicans who changed the rules on the Supreme Court. But we take no solace that history will put it on their shoulders because the consequences for the Senate and for the future of the Supreme Court will be far-reaching. The nuclear option means the end of a long history of consensus on Supreme Court nominations. It weakens the standing of the Senate as a whole as a check on the President's ability to shape the judiciary. In a postnuclear world, if the Senate and the Presidency are in the hands of the same party, there is no incentive to even speak to the Senate minority. That is a recipe for more conflict and bad blood between the parties, not less. The cooling saucer of the Senate will get considerably hotter.

The 60-vote threshold on controversial matters is a hallmark of the Senate. The majority leader has said so himself. It fosters compromise, it fosters bipartisanship, and it makes the Senate more deliberative. Sixty votes ought to be the epigraph of the Senate. Losing that standard on the Supreme Court, a hugely controversial matter, erodes the very nature of this body.

The 60-vote bar in the Senate is the guard rail of our democracy. When our body politics is veering too far to the right or to the left, the answer is not to dismantle the guardrails and go over the cliff but to turn the wheel back toward the middle. The answer is not to undo the guardrails--the rules--it is to steer back to the middle and get a more mainstream candidate.

With respect to the Supreme Court, the 60-vote threshold operates as a guardrail against judicial extremism. When 60 votes--typically a bipartisan supermajority--are required for confirmation, nominees tend to be in the judicial mainstream. The only nominee on the Court to be confirmed with less than 60 votes was Justice Thomas, who is widely recognized to be the most ideologically extreme Supreme Court Justice. It will mean the end of any pressure on any future President to nominate someone in the mainstream.

When it comes to the courts, the guardrails are being dismantled. There will be more 5-to-4 decisions, as our ranking member of the Judiciary Committee has pointed out. There will be less faith in the Supreme Court because it will be seen as a political body, an extension of our most divisive debates. As a result, America's faith in the integrity of the Court and the trust in the rule of law will suffer.

In conclusion, I am disheartened that we are here. In the sweep of history, the Senate has been the place where great, seemingly intractable disagreements in American politics finally give way to compromise, precisely because we have a set of rules that requires it. The story of the Senate is one of fierce debate but eventual cooperation. We tend to pull back when things get too heated because we all care about this institution and its role in our national life. In this case, the cumulative resentments from years of partisan trench warfare were too great. Instead of the Senate forcing us to change, Senators have decided to change the Senate. I worry a great deal about what that means for our future.

Twenty years ago, I think even the most partisan would say that the 60-vote threshold was basically inviolable. Today, it will be gone for all nominations, but at least not for legislation. My friend the majority leader has said he has no interest in removing the barrier for legislation.

I agree with him wholeheartedly, and I take him at his word.

I hope we can get together to do more in future months to ensure that the 60-vote threshold for legislation remains, but just as it seemed unthinkable only a few decades ago that we would change the rules for nominees, today's vote is a cautionary tale about how unbridled partisan escalation can ultimately overwhelm our basic inclination to work together and frustrate our efforts to pull back, blocking us from steering the ship of the Senate away from the rocks.

There is a reason it was dubbed the ``nuclear option.'' It is the most extreme measure, with the most extreme consequences. While I am sure we will continue to debate what got us here, I know that in 20 or 30 or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court; a day when we irrevocably moved further away from the principles our Founders intended with these institutions, principles of bipartisanship and moderation and consensus.

Let us go no further on this path.

I yield the floor.

Madam President, parliamentary inquiry.

Madam President, is it correct that over half the nominations on which cloture motions were filed in the Senate, over the course of our entire history as a country, were filed between the beginning of President Obama's administration and November 21, 2013?

Madam President, further parliamentary inquiry.

Madam President, under the rules and precedents of the Senate, is the Senate prohibited from considering and voting on a nominee to the Supreme Court in the fourth year of the President's term?

Madam President, additional parliamentary inquiry.

Is the Chair aware of any instance in the years between the 1949 advent of routine public Supreme Court confirmation hearings and 2016 that a nominee who was not withdrawn did not receive a hearing and a vote?

Madam President, in order to allow President Trump, Republicans, and Democrats time to come together and discuss a way forward on a Supreme Court nominee who can meet the 60-vote threshold, I move to postpone the nomination to 3 p.m. on Monday, April 24, and I ask for the yeas and nays.

Madam President, parliamentary inquiry.

Madam President, did the Senate precedent established on November 21, 2013, on how nominations

are considered in the Senate change the cloture threshold for nominations to the Supreme Court?

Madam President, a second parliamentary inquiry.

Madam President, in the history of the Senate, have there been any instances in which a nomination to the Supreme Court was withdrawn after cloture was not invoked on the nomination?

Thank you, Madam President.

Madam President, a parliamentary inquiry.

Madam President, of the last 26 nominations of Justices confirmed to the Supreme Court, going back to 1954, how many were confirmed without a rollcall vote or received more than 60 votes in support of their nomination either on cloture or on confirmation?

Madam President, I move to adjourn until 5 p.m., and I ask for the yeas and nays.