Mr. President, over the next hour, a number of my colleagues and I will join together to speak in opposition to the nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court. We are joining together today…
Mr. President, over the next hour, a number of my colleagues and I will join together to speak in opposition to the nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court. We are joining together today because this nomination is not just about the future of the Supreme Court. It is about the future of our country.
There is no question about Judge Gorsuch's credentials or about his intellect. He is a graduate of Columbia and Harvard and has been a judge on the Tenth Circuit Court for more than a decade. In fact, his credentials are in stark contrast to so many of the dangerously unqualified individuals President Trump appointed to his Cabinet.
Judge Gorsuch should not get a pass simply because we are relieved that President Trump didn't nominate a member of his family or a reality television personality for this job. Credentials cannot and should not be the only points we consider when evaluating a lifetime appointment to the Supreme Court. In fact, we should expect that anyone nominated to the Supreme Court will at least have impressive credentials.
By many accounts, Judge Gorsuch would be the most conservative Justice on the Court--even more conservative than Justice Thomas or Justice Scalia. Rightwing advocacy groups cheered his nomination and have spent over $10 million to support his nomination. They spent this money because they have high confidence that he will rule in their favor on so many of the tough cases that will come before the Supreme Court. These groups, including the Heritage Foundation and the Federalist Society, selected Judge Gorsuch because he meets their litmus test for how they think a Justice should rule. They selected him because they understood Judge Gorsuch clearly met the litmus test the President outlined during his campaign.
To paraphrase, Donald Trump wanted a judge who would prioritize the religious freedom of a corporation over the rights of its employees, uphold an expansive view of the Second Amendment, making it much tougher to enact sensible gun legislation to protect our communities, and who would overturn Roe v. Wade--as Donald Trump put it-- automatically.
Judge Gorsuch's credentials are just a starting point. For the people who need justice most urgently, Judge Gorsuch's view of the law and his judicial philosophy will make a world of difference. The working families, women, differently abled, people of color, the LGBTQ community, immigrants, students, seniors, and our Native peoples are the people who will be impacted by the decisions a Justice Gorsuch would make.
Today, April 4, is Equal Pay Day, which means that it took women until today to make the same amount that men made in 2016. Women have had to work more than 3 months longer to catch up, on average, to men.
This significant pay disparity has existed for centuries, but it has been illegal in the United States since the passage of the Equal Pay Act in 1963. Proving illegal pay disparity under this law has been challenging, as we all know.
Nationally, women are paid only 79 cents for every dollar a man is paid. In Hawaii, women are paid only 82 cents for every dollar a man makes. That is a little better than the rest of the country, but it is in no way good enough.
At the median salary, that 82 cents translates into about $8,000 less per year in wages for a woman in Hawaii. That is a lot of money in my State, where the high cost of living makes it even more difficult for working families to get ahead--not to mention that many working families in Hawaii, as well as in other States, are headed by women. My immigrant family was headed by my mother.
As we mark Equal Pay Day, I am well aware of the tremendous impact a single Justice can have on the lives and rights of millions of Americans.
Under Chief Justice John Roberts, the Supreme Court has issued numerous 5-to-4 decisions that have favored corporate interests over the rights of individuals--cases like Shelby County, Citizens United, and Hobby Lobby.
One of the most deeply flawed of these 5-to-4 decisions was in a 2007 case called Ledbetter v. Goodyear Tire & Rubber Co. That decision had the effect of denying justice to a woman who had suffered pay discrimination for more than a decade. The Court said, in effect, that because Lilly Ledbetter didn't learn of the pay discrimination until it was too late, our justice system could not help her.
Put another way, under the ruling, employers could discriminate against women so long as the employers made sure the women didn't find out about it.
This will not be hard to do, as employers are not likely to announce that they are providing discriminatory pay to their female employees. This is what happened to Lilly Ledbetter. She didn't know.
This decision was deeply wrong and surprised many Court watchers. It undid years of judicial precedent.
I remember learning of this decision in Hawaii. I was serving on the House Education and Labor Committee of the U.S. House of Representatives at that time.
The Supreme Court decision interpreted a Federal law that fell within the jurisdiction of the committee on which I sat. George Miller, then chair of the committee, immediately announced that we would change the law to be interpreted the way it had been before the Court applied their own narrow and wrong interpretation.
We passed the Lilly Ledbetter Fair Pay Act with a Democratic Congress in 2009. Frankly, I doubt a Republican-controlled House and Senate would have done the same. It was the first bill President Obama signed into law. I was there for that bill signing.
Though we could not retroactively help Mrs. Ledbetter, this law reversed the Supreme Court's decision and assured that the injustice she endured did not happen to other women or to anyone else. Clearly, the composition of the Court and the identity of the fifth Justice matters a great deal in the real world--the real world of 5-to-4 decisions.
Yet, during this hearing, Judge Gorsuch refused to even acknowledge the role that judicial philosophy plays in the role of a Justice, and he downplayed the impact the law could have on people's lives, repeatedly saying he merely applied the law.
If Justices merely applied the law and the law was so clear, we wouldn't have so many 5-to-4 decisions in the most critical cases.
Judge Gorsuch told me during our meeting in February that the purpose of title III courts--these are the Federal courts--is to protect minority rights. But I found through examining his writings and decisions that Judge Gorsuch's view of the law lacks an understanding of people, their lives, and how the courts' decisions would impact them.
This was particularly true in examining his ruling in the Hobby Lobby decision, where Judge Gorsuch demonstrated a cavalier attitude about how his decision would impact the thousands of women working at the Hobby Lobby company.
In that case, Judge Gorsuch decided that a corporation with tens of thousands of employees--many of them women--has rights to the exercise of religion protected by the Religious Freedom Restoration Act, and that it could use those rights to deny to the thousands of women in its employ access to contraceptive coverage.
During the hearing, I pressed Judge Gorsuch on whether he considered what would happen to the thousands of women who worked at Hobby Lobby, many of them working paycheck to paycheck who would now be denied access to contraceptive coverage. He responded by saying: ``I gave every aspect of that case very close consideration.''
I fail to see what consideration Judge Gorsuch gave to those female employees. It is certainly not evident in the record.
Justice Ginsburg's dissent, when this case reached the Supreme Court in Hobby Lobby, which Justices Kagan, Sotomayor, and Breyer joined, did assess the real world impact this decision would have on women. Justice Ginsburg wrote: ``The exemption sought by Hobby Lobby and Conestoga would . . . deny legions of women who do not hold their employers' beliefs access to contraceptive coverage.''
In the Tenth Circuit's opinion, which Judge Gorsuch joined, and in his own
concurrence, Judge Gorsuch showed grave concern with the potential ``complicity'' of the Hobby Lobby's owners--these are the corporate owners--in violating their beliefs, but he gave little or no consideration to the compelling interest of these women and the thousands of female employees in having access to contraceptive care.
Judge Gorsuch failed to address our concerns during this hearing. Rather than recognizing the impact of his decision on thousands of women who work at Hobby Lobby and millions more who work at companies all across the country, Judge Gorsuch repeatedly said that if we didn't like what the Court was doing, or what he was doing, then Congress could change the law--as though that is such a simple thing.
This is not an academic exercise. This is about the real world impact, not just of the Hobby Lobby decision but of decisions a Justice Gorsuch would make for the next 25 years, from which there is no appeal.
Judge Gorsuch's nomination raises so many serious concerns for women across the country that I look forward to addressing over the next hour.
During his hearing, Judge Gorsuch told us time and again to focus on his whole record as a judge and not on certain cases or things he wrote in books, articles, or emails.
In fact, my Republican colleagues have suggested that we are being unfair when we try to look at the things he has said and written in order to discern how Judge Gorsuch would approach cases if confirmed. We wanted to get at his heart. We wanted to get at his judicial philosophy.
Some of my colleagues have even gone so far as to suggest that by raising legitimate questions about Judge Gorsuch's record as part of our advice and consent responsibility, we are attacking judges in the same way President Trump has done during his 2\1/2\ months in office. This is fundamentally wrong and deeply misleading. It is like comparing apples and oranges. That comparison doesn't begin to describe the difference.
Two weeks ago, in the middle of Judge Gorsuch's confirmation hearing, President Trump renewed his vicious and unwarranted attack on Judge Watson of Hawaii for blocking the President's unconstitutional Muslim ban.
Although I wasn't then in the Senate, I recall that during Justice Sotomayor's confirmation hearing, Republican after Republican ignored almost the entirety of her 25 years on the Federal bench. Instead, they focused, in question after question at her confirmation hearing, on a gross misreading of one speech--one speech--she gave to a group of young women about the value of diversity on the bench.
Republicans on the Judiciary Committee and in the Senate twisted her phrase ``wise Latina.'' That is a term she used in her speech. They twisted her use of the phrase ``wise Latina'' well beyond meaning.
Looking at that speech, it is clear she meant to instill confidence in young women and a sense that they, too, needed to participate in a life of the law; that the law was not--is not--a place that excludes them. Senate Republicans turned these words into a baseless attack to undermine Justice Sotomayor's well-earned reputation of fairly applying the law in thousands of cases that had appeared before her. She had been on the bench for 25 years, but they focused on two words in one speech she gave during that time. Many Republicans then cited that speech to justify their opposition to her nomination.
So when I hear my Republican colleagues touting their fairness toward President Obama's Supreme Court nominee, I recall not just their omitting any mention of Justice Merrick Garland--the well-credentialed, well-respected moderate whom they blocked from even having a hearing--I also remember Justice Sotomayor. I remember my Republican colleagues ignored her unanimously ``well qualified'' rating from the American Bar Association, her long record, and the tremendous chorus from the right and the left supporting her historic nomination.
If confirmed, Judge Gorsuch's decisions will have a profound impact on the country, not just during his time on the Court but for generations to come. This is particularly true for women whose constitutional right to an abortion will be threatened by a Justice Gorsuch. During the Presidential campaign, Donald Trump laid out his litmus test for nominating a Justice. He said, for example, that overturning Roe v. Wade ``will happen automatically, in my opinion, because I am putting pro-life justices on the court.'' That was Candidate Trump's well-articulated litmus test, which he followed through on in his nomination of Judge Gorsuch.
During his hearing, my colleagues and I tried to get a better sense of how and whether Judge Gorsuch would follow the President and uphold this constitutionally protected right. Based on his lack of response, I am skeptical that a Justice Gorsuch would uphold this critical right that generations of women fought to preserve.
In 1992, in Casey, the Supreme Court reaffirmed the core holding of Roe that the right to an abortion is constitutionally protected. The Court held that these decisions are protected because they are among ``the most intimate and personal choices a person makes in a lifetime.''
In his 2006 book on the future of assisted suicide, Judge Gorsuch argued that Casey should be read more as a decision based merely on respect for precedent rather than based on the recognition of constitutional protections for ``personal autonomy'' or for ``intimate or personal'' decisions. When I asked Judge Gorsuch about this, although he recognized that Roe and Casey are precedents of the Supreme Court, he did not go further and acknowledge that the Constitution itself protects the right to make intimate and personal decisions.
In the time since Casey, the Court has relied on the protection for intimate and personal choices to decide many nonabortion cases, such as the Obergefell case, which recognized the right to marriage equality. We need a Justice who understands and respects the importance of this right--that it is the Constitution that provides protections for intimate and personal decisions. Otherwise, I am concerned he will join the Court and chip away at those protections.
Judge Gorsuch said that the judicial robe changes a person. This was another way of telling us to ignore his own strongly held and frequently expressed personal views and, indeed, his judicial philosophy, which he continued to not discuss. Of course, if judicial philosophy didn't matter, Senate Republicans would not have engaged in the unprecedented act of blocking President Obama's nominee Merrick Garland, a well-credentialed, well-respected, moderate nominee, from even having a hearing. They held the seat open to be filled by the next President, preferably, a Republican one.
In Neil Gorsuch, the Republicans got a nominee selected by rightwing organizations that are counting on Judge Gorsuch to rule in accordance with their very conservative views, which put corporate interests over individual rights. That is why, to put it simply, who wears the judicial robe matters.
Just as the Federalist Society and the Heritage Foundation want Judge Gorsuch to wear the robe, the people who come before the bench--the millions of hard-working Americans whose lives will be affected by the Court's decisions--want a Justice who will protect their rights. They want a Justice who will wear the robe that protects their rights.
I note that I am joined by Senator Duckworth of Illinois, and I yield time to her.
Mr. President, I am joined by my colleague from California, Senator Harris.
Mr. President, I thank my colleague from California, Senator Harris, for her eloquent and persuasive remarks.
I am now joined by my colleague, the Senator from Massachusetts. I yield to her.
Mr. President, I thank my colleague from Massachusetts for her impassioned, well-reasoned, persuasive remarks.
All too often, Judge Gorsuch fixates on what we call the plain meaning of a word in the law and decides on his own meaning that he would give to that word. Sometimes he will resort to the Dictionary Act or Webster's dictionary to ascertain what he would consider the plain meaning of the law, but what he doesn't do time and again in very important cases that impact lots of lives is that he doesn't look to the context or the purpose of the law, to the point where sometimes his decisions are just bizarre and lack common sense.
There was a reference made to the TransAm Trucking case where the truckdriver was in freezing weather. The brakes on his truck were not working properly, so he faced the choice of freezing to death or doing something about it but then risking being fired. So he did something about it. He got fired.
Judge Gorsuch, in his reading--a very, very narrow reading of a word in the applicable provisions--deemed that his firing was correct. He was asked by Senator Franken at the hearing: What would you have done if you had been in that situation? There you are, you are about to freeze to death, and you have a truck that is not operable in a safe way unless you unhook the attachment to it. What would you have done?
Judge Gorsuch basically said: I don't know what I would have done. I was not in his shoes.
What any of us would have said--of course we would have done what the truck driver did. But in his very narrow reading of the words of the applicable provision, he came to the decision he did. That is why he could not respond to Senator Franken.
It is particularly important that Judge Gorsuch explain to us how he would approach these kinds of cases. It is particularly important in what I would describe as remedial legislation, such as the Individuals with Disabilities Education Act, better known as IDEA. This is remedial legislation that protects the educational rights of special needs children. That is the population for which this law was enacted.
Judge Gorsuch had a case before him, and it was referred to by my colleague from California. A young boy was not getting the kind of educational opportunities that he should have gotten under IDEA, but Judge Gorsuch read that remedial legislation, which should be broadly interpreted to protect the class and the group that the law was passed to help--he read it very, very narrowly.
He said that the school needed only to provide ``merely de minimus'' education for this child. He put in the words ``merely de minimus'' effort on the part of the school to provide this young boy with educational opportunities. That was bad enough, but Judge Gorsuch added the word ``merely.'' So during the time of his hearing, the Supreme Court, in a related--basically the same law, IDEA, was at issue--and the Supreme Court, while we were having the hearing on Judge Gorsuch's nomination, unanimously overturned Judge Gorsuch's standard of ``merely de minimus.'' Even the Roberts Court found Judge Gorsuch's standard of review too limiting and too narrow.
So the young boy in question--his father testified at the confirmation hearing. I asked him what he was thinking as the decision of Judge Gorsuch came down. He said he knew that this decision would negatively affect hundreds and hundreds of special needs children all across our country.
This is why I sought assurance from Judge Gorsuch that he would be the kind of Justice who understands, as he told me when I met with him, that the purpose of title III, which are the Federal courts, is to protect the rights of minorities. So I wanted reassurance from Judge Gorsuch during his hearing. I tried time and again to get a sense of his heart, what his judicial philosophy was. I was looking for the reassurance that he was the kind of judge who understands the importance of assuring that victims of discrimination cannot only ask for but can also receive protections from the courts and who demonstrates a commitment to the Constitutional principles that protect the rights of women to make the intimate and personal decisions of what to do with their own bodies.
Mr. President, I note that I am joined by my colleague from Washington State, Senator Murray. I yield to her.
Mr. President, I thank my colleague, Senator Murray, our assistant Democratic leader, for her continuing, longstanding leadership on behalf of women and families in our country.
Over the past hour, my colleagues and I have laid out a fair case against confirming Judge Gorsuch to the U.S. Supreme Court. As we approach a vote on his confirmation, I encourage my colleagues to scrutinize Judge Gorsuch's judicial philosophy, even as he refused to outline for us or describe for us what that philosophy is. But we have come to certain conclusions based on 4 days of hearings. During his hearing, Judge Gorsuch refused, as they say, time and again to answer our questions on his judicial philosophy or his approach to the law. He insisted that he was merely a judge, as if the use of the word ended any discussion or scrutiny of his record.
Judge Gorsuch painted a picture for us of the Court that is really straight out of a Norman Rockwell painting. He said during his hearing: ``One of the beautiful things about our system of justice is that any person can file a lawsuit about anything against anyone at any time . . . and a judge, a neutral and fair judge, will hear it.''
Norman Rockwell painting--it is a wonderful idea that anybody can file a claim to protect their rights or interests. It is also a wonderful idea to assume that those claims will be heard and ruled upon by neutral judges, apparently uninfluenced by their own strongly held and frequently expressed personal views and judicial philosophy.
Many of my Republican colleagues have echoed this view and argued that Judge Gorsuch's credentials should be enough--Columbia, Harvard. They argue that it is wrong or even unfair to question how Judge Gorsuch might approach the kinds of difficult issues that come before the Supreme Court.
Of course, if judicial philosophy did not matter, then the Republicans would not have engaged in the unprecedented act of blocking President Obama's nominee--as I mentioned, Merrick Garland, a well- credentialed, well-respected moderate nominee--from even having a hearing. In fact, many of the Republican Senators did not even extend the courtesy of meeting with Judge Garland. They would not have held the seat open to be filled by the appointee of a Republican President, one selected for him by rightwing organizations.
When my colleagues and I asked Judge Gorsuch about his judicial philosophy, he said that his words, his views, his writings, and his clearly expressed personal views had no relevance to what he would do as a Justice. He told us to look at his whole record, so I examined his whole record. I saw in that record too little regard for the real-world impact of his decisions. I saw a refusal to look beyond the words to the meaning and intent of the law, even when his decisions lacked common sense, as in the frozen truck driver case, and far too often, to the benefit of big corporations and against the side of the little guy.
The decisions of judges have real-world impacts for millions of people beyond the parties in a particular case. This is especially true of the Supreme Court, which issues decisions that don't just reach those in the case in front of them--the frozen trucker, the women who work at Hobby Lobby faced with a lack of critical healthcare, the special needs child entitled to educational opportunities under the IDEA. The Supreme Court does not just interpret laws; the Supreme Court shapes our society.
Will we be just? Will we be fair? Will America be a land of exclusivity for the few or land of opportunity for the many? Will we be the compassionate and tolerant America that embraced my mother, my brothers, and me so many decades ago when we immigrated to this country? These values seem too often absent from Judge Gorsuch's record and from his view of the law and the Court.
The central question for me in looking at Judge Gorsuch and his record and listening carefully through 4 days of hearings was whether he would be a Justice for all of us, not just one for some of us. I came to the conclusion that he would not be a Justice for all of us, so I oppose his nomination.
I yield the floor.