Mr. President, there are few moments in the life of a nation when the people are presented with a single choice that directly affects what equality before the law will mean for the next generation. The opportunity to grant a lifetime…
Mr. President, there are few moments in the life of a nation when the people are presented with a single choice that directly affects what equality before the law will mean for the next generation. The opportunity to grant a lifetime appointment to the Supreme Court of the United States is
one of those moments. The next Supreme Court Justice will break the 4- to-4 deadlock that has constrained the Court since the passing of Justice Scalia and this body's unprecedented refusal to act on Chief Judge Merrick Garland's nomination to fill that vacancy during the final year of President Obama's second term.
Before discussing the pending nominee's merits, we must consider this nomination in its historical context. Chief Judge Garland, I believe, was one of the most qualified nominees for the Supreme Court in generations. After meeting with him and reviewing his record, I had no doubt that he easily would have earned bipartisan support and cleared the 60-vote threshold, as did each of President Obama's prior nominees to the Court. Yet my colleagues on the other side of the aisle refused even to meet with him. His treatment was disgraceful.
Rejecting the treatment Chief Judge Garland received, I met with Judge Neil Gorsuch and shared a thoughtful conversation. I found him to be intelligent and articulate but at the same time, he was not particularly forthcoming about his judicial record, which contains many distressing examples of inconsistency and ideological rigidity. Nothing in our conversation or his testimony before the Judiciary Committee convinced me that he plans to moderate his positions to dispense equal justice under the law. I am deeply concerned that granting him a lifetime appointment to be a final authority on the meaning of the Constitution would further tip the scales of justice in favor of corporations and the powerful at the expense of working people and the powerless. Therefore, I cannot support Judge Gorsuch's nomination to the Supreme Court of the United States.
This is a pivotal time for our Nation, when the people's trust in the judiciary is in decline, attributed by many to the streak of 5-to-4 decisions of the Roberts Court that have consolidated corporate power. Given how radically the Court has changed many of our institutions over just the past decade, it is difficult to overstate the importance of understanding a nominee's judicial values and the human element the nominee will bring to the Court.
I have applied the same, simple test to each Supreme Court nominee throughout my time in this body. It is not enough for a nominee to display intellectual gifts or to possess a textbook understanding of American history and jurisprudence. Judicial decision making at the Supreme Court is not an assembly line where mechanical application of the law will resolve every dispute.
Rather, the nominee must demonstrate that she or he will use judicial discretion to give meaning to the text and spirit of the Constitution.
Justice Harlan Fiske Stone laid the foundation for this model of judicial review in United States v. Carolene Products Co. He wrote that judges must enforce the specific text of the Constitution, but he went further than that, urging judges to apply stricter scrutiny to laws that impede the effective operation of government and channels of political participation. Judges should likewise demand the most compelling justifications for laws that single out powerless, discrete, and insular minorities. These principles deeply influenced future scholars and judges and laid the groundwork for modern constitutional law as we have understood it since the Warren Court.
These are the decisions that struck down race and gender segregation, proclaimed the rule of ``one person, one vote,'' enshrined the right to remain silent and to counsel in police custody, and recognized the fundamental right of a person to marry for love, regardless of race or gender.
This tradition stands in stark contrast to the new wave of hyper- partisan legal activism we have seen manifested in our courts in recent years. This judicial activism attempts to disguise judges' personal political agenda by arguing that they are merely applying pure, indisputable, mechanical logic. This philosophy goes by varied names: textualism, originalism, strict constructionism, and so forth. But in the main, it is an ideological prism to disguise traditional judicial discretion, expand the law without limits to benefit politically powerful majority groups and corporations, and constrict the law for the minorities, workers, and the politically powerless.
We know too well the devastating effects of this line of thinking as it has manifested itself in the Roberts Court. In the case of Shelby County, the Court disregarded congressional intent and ruled 5 to 4 that the preclearance formula that helped millions of African Americans secure the vote in States with a history of discrimination was no longer necessary. This freed several States to enact severely restrictive election laws that clearly benefit one party and racial group at the expense of another, and courts are still working to resolve these imbalances.
In Hobby Lobby, with an intellectual framework formed in part by Judge Gorsuch, the Court ruled 5 to 4 to give for-profit corporations religious rights to opt out of providing comprehensive health coverage for their employees. This has opened the door for corporate religious challenges to an untold number of duly enacted restraints on corporate excess, from child labor laws to basic protections against employment discrimination.
In Citizens United, as we all too well know, the Court broke with decades of precedent, the facts of the case, and common sense to create a constitutional right for corporations to spend unlimited money on our elections. Indeed, our political system is still reeling from billions of dollars in anonymous political expenditures, and we are only now beginning to recognize the national security concerns that have resulted, with hostile powers, such as Russia, seeking to influence our democracy. In order to satisfy partisan, ideological ends, the Court has left us powerless to limit the purchase of political influence or even to know who is spending all this money on our politics.
Judge Gorsuch's record strongly suggests that he would contribute to the Roberts Court's partisan, pro-corporate orientation. Indeed, the very same business groups that spent $7 million in dark money to block Chief Judge Garland's nomination to this seat also spent $10 million on ads and lobbying efforts to support Judge Gorsuch's nomination. It stands to reason that these groups believe that Judge Gorsuch shares their right-wing beliefs and will benefit their interests.
The Judiciary is supposed to be above politics. Judges write opinions to satisfy due process and establish precedents that will guide future decisions. The opinion-writing process is not intended to be an arena for judges to pursue self-serving or ideological ends. That is why I am deeply concerned with Judge Gorsuch's clear willingness on the Tenth Circuit to go beyond precedent and the facts of a case before him to advance arguments designed to bend the law to his ideology.
In Riddle v. Hickenlooper, Judge Gorsuch joined a panel decision that struck down uneven contribution limits in Colorado election laws. He then wrote separately to advocate that all campaign finance laws should be subject to greater constitutional questioning. This was both unnecessary to decide the case, and a clear signal by Judge Gorsuch that he would work to abolish what remains of laws limiting the flow of anonymous corporate money into our elections.
Judge Gorsuch has reached furthest beyond precedent when doing so would deconstruct Federal agencies that constrain corporations, and protect workers, consumers, and the environment. This confirmation process has introduced many to a relatively obscure doctrine of administrative law called Chevron deference. The Chevron case stands for the essentially uncontested proposition that, when someone sues a Federal agency and a reasonable person could read the statute at issue more than one way, the court should defer to the agency's reasonable interpretation of the law it is charged with enforcing. This case has long been a target for attacks by corporations and their advocates because it levels the playing field in cases between massively well- funded corporate lawyers who want no regulations, and agencies charged with bringing big business into compliance with the law. Judge Gorsuch has written strongly against this principle, but even Justice Scalia acknowledged the sound reasoning behind the Chevron case.
Judge Gorsuch would seemingly return us to the old days when powerful
companies could pollute the environment, scam their customers, and discriminate against their employees as long as they could pay enough lawyers and get the right judge when the Federal agency sues. In the case of Gutierrez-Brizuela v. Lynch, he took the very unusual step of writing a concurrence to his own majority opinion in order to attack Federal agencies and make the case that decades of Chevron precedent should be overturned. It is highly unusual, after you have written the majority opinion at the circuit level deciding the case, that you would then step aside and write a separate epistle advancing your ideas.
He wrote in language that is familiar to those of us in the political branches of government, but out of the ordinary for a Federal judge. He compared Federal agencies to a ``tyrannical king'' and a ``behemoth'' and a ``colossus'' and laid out his constitutional theory for challenging Chevron in the Supreme Court. None of this analysis was necessary to the case before Judge Gorsuch. Yet in writing this and similar opinions, Judge Gorsuch signaled his willingness to break from precedent and contort the law to fit his ideological vision of how the system should work to benefit the powerful and his preferred interests.
My colleagues on the Judiciary Committee spent a great deal of time and effort questioning Judge Gorsuch and trying to elicit responses about his basic judicial philosophy. Unfortunately, his answers were largely nonresponsive and failed to address many of our concerns about his record.
Judge Gorsuch's record and writings shows he believes judges should always interpret the Constitution and other laws from the perspective of those who first drafted the law, regardless of how the world looks today.
The Founders and Framers, however, did not leave us a blueprint to answer every new question of law. Nor did the delegates to the Constitutional Convention demand that all future judges be ``originalists.'' The laws and values of 1789 would shock and alienate--as they should--many Americans today, particularly women and racial and other minority groups. Worse yet, a judge attempting to resolve a case as if it were the 18th, 19th, or even 20th centuries may wittingly or unwittingly use that construct to inject into the case the judge's own view of how the government ought to work.
The Hobby Lobby case is a key example of this ideological inconsistency at work to the detriment of less powerful Americans. This case concerned, as I noted earlier, whether a for-profit corporation could refuse to comply with the Affordable Care Act's mandate that employers provide health coverage, including contraceptives, to over 23,000 employees on the ground that doing so would conflict with the corporation's purported religious rights under the Religious Freedom Restoration Act, or RFRA.
The text of RFRA provides that the ``government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.'' The legislative history of RFRA is both recent and clear. In the case of Employment Division v. Smith, decided in 1990, the Supreme Court rejected two peyote users' claim of a religious right to consume the drug on grounds that the Constitution permits some burdens on religion if the aim of the law is secular and generally applicable. When Congress debated RFRA in 1993, the House and Senate reports showed explicitly that Congress's aim was ``only to overturn the Supreme Court's decision in Smith'' and to require courts considering RFRA cases to ``look to free exercise cases decided prior to Smith for guidance.''
No Supreme Court case prior to this time had ever granted corporations religious rights and nothing in RFRA's legislative history suggested that Congress's intent was to do so. Notwithstanding these facts, Judge Gorsuch joined his colleagues to hold that a for-profit corporation's religious beliefs may overcome its employees own consciences and rights to comprehensive health coverage. He relied on an 1871 law called the Dictionary Act, which provided that in certain circumstances, Congress's use of the term ``person'' can also mean businesses, ``unless the context indicates otherwise.'' This reference to context means that Judge Gorsuch had discretion to use history and common sense to reach the conclusion that corporations don't have religious views, but people do, and RFRA was enacted to protect real people's rights. But instead, he took this opportunity to endow corporate entities with religious rights that could help them escape the law in untold circumstances.
Let's explore for a moment Judge Gorsuch's belief that judges should always give meaning to the original intent of a law's draftsmen. In this case, what is a corporation and how does it operate? In 1787, there were roughly six non-bank corporations in America, and their powers were severely restricted in the wake of colonists' experiences with the abusive practices of the Crown and royal English corporations. Around the time that Congress passed the Dictionary Act, corporations were harshly regulated by law to achieve specific commercial ends and nothing more. There were legal limits on the capital they could raise. Many could not operate outside their state of incorporation. They were often prohibited from owning property that was not necessary for specific commercial activities. Most were even forbidden to engage in any activity that was not explicitly enumerated in their corporate charters, and a real person could sue to render a corporation's action a legal nullity if it were not expressly in furtherance of the corporation's business mission. The idea that a corporation in this context could exercise fundamental religious rights, much less that its religion should excuse it from complying with duly enacted laws that protect real people, would have been outrageous to the Framers and the Congress that passed the Dictionary Act.
Judge Gorsuch knew or should have known the ahistorical nature of his decisions. We have yet to see the full scope and consequences of his vision of a near-unlimited right of corporations to opt out of our laws, but we can imagine the harmful choices and difficult litigation on this point that may lie ahead. I, for one, have deep concerns about any judicial philosophy that bends so far in the direction of corporate interests and completely ignores tens of thousands of real people in the process.
For as much as Judge Gorsuch's record shows that he is willing to entertain new or arcane legal theories to reach a better outcome for corporations and the powerful, it is also clear that he will go to no such length to vindicate the rights of minorities, the disabled or workers.
One example highlighted during Judge Gorsuch's confirmation hearing is his record on lawsuits under the Individuals with Disabilities Education Act, or IDEA. The purpose of IDEA is to ensure that students with disabilities receive a public education that is tailored to their special individual needs. In the 2008 case popularly referred to as the Luke P. case, however, Judge Gorsuch ruled against the parents of a severely autistic child who sought reimbursement for the cost of a specialized school because their son was not making appropriate progress in the public school. In denying the parents relief, Gorsuch reinterpreted IDEA to require that public schools need only provide de minimis, or nonzero educational progress to children with disabilities. Not only did Judge Gorsuch go beyond the facts of the case to close any path to relief for the family, but in this and similar cases, he attempted to set a legal precedent for future cases that effectively eviscerated the meaning and protections of IDEA.
Fortunately, the Supreme Court intervened. In a rare unanimous decision released, ironically, on the second day of Judge Gorsuch's confirmation hearing, the Court rejected Judge Gorsuch's narrow reading of the law. In fact, the Chief Justice did not mince words when it came to Judge Gorsuch's lower bar for schools. He said Judge Gorsuch's model would hardly provide ``an education at all'' for children with disabilities, and that ``receiving instruction that aims so low would be tantamount to `sitting idly . . . awaiting the time when they were old enough to drop out.' '' This stark, unanimous rebuke of Judge Gorsuch's view of the law in the middle of his confirmation hearing was yet another reminder that this nominee is outside of the judicial mainstream.
But Judge Gorsuch has not just restricted his reading of the law in the educational context. In TransAm Trucking, Inc. v. Administrative Review Board, a majority of the Tenth Circuit held that a truck driver was wrongfully fired when he drove away from his trailer to find help after being stranded for hours in subzero temperatures in a vehicle with no heat and a rig with failed brakes. Judge Gorsuch disagreed so sharply that he penned a dissent. Under his strict textualist view of the law, the driver was protected from firing for ``refusing'' to operate in dangerous conditions, but the word ``refusing'' could not be interpreted to include driving away to get potentially lifesaving help, rather than freezing to death. Again and again, Judge Gorsuch's record shows he is capable, but either unwilling or unable to give the same benefit of the doubt to average working people as he does to their employers, their landlords and the most powerful among us.
Mr. President, Constitutional law is not concerned with easy cases or simple answers. We have constitutional guarantees to inalienable rights because we know that majority rule sometimes gets it wrong, particularly when it comes to the rights of the minority. That is what makes the qualifications for a seat on the Supreme Court fundamentally different from any other Federal or State court in the Nation. A judge's job is to apply precedent, be faithful to the law, and exercise measures of empathy and common sense to dispense justice. A Supreme Court Justice's job is to decide when the law is wrong and must be changed in order to fulfill the promise of the Constitution. The Supreme Court cannot perform this function unless the individual Justices bring to it the values and willingness to be the last resort for the powerless when the system fails. They must be able to make unpopular decisions and side against political and cultural majorities. They must be able to reject precedent when the established way of doing things no longer safeguards the fundamental protections to which every American is entitled. They must do this for the least and most derided among us, because if they do not, there is nowhere else to turn. They have the final word on the meaning of the law.
I take Judge Gorsuch at his word that he respects the law and approaches this nomination with seriousness and a sense of responsibility. A thoughtful reading of his work as an advocate and a judge reveals that he has a consistent predisposition to favor corporations and the powerful over human beings and the powerless. To be sure, there is nothing inherently wrong when a corporation, or a landlord, or an employer or a President of the United States wins a case in a court of law. The system often works as it should even when it hands new victories to those who seldom lose at anything. But at this moment in the life of our Nation, it is vital that the next Justice of the Supreme Court be willing and able to elevate the rights of the people above the prevailing political view of the wealthiest and most powerful when the two are in conflict. I cannot conclude that Judge Gorsuch meets this standard. Therefore, I will oppose his nomination and I would urge my colleagues to do the same.
With that, I yield the floor.