Disapproving A Rule Submitted By The Department Of Labor
Madam President, I would like to thank my colleague for his good comments regarding Neil Gorsuch. I rise today to strongly support Neil Gorsuch for the U.S. Supreme Court. First, there is no question that Judge Gorsuch is qualified for…
Madam President, I would like to thank my colleague for his good comments regarding Neil Gorsuch.
I rise today to strongly support Neil Gorsuch for the U.S. Supreme Court.
First, there is no question that Judge Gorsuch is qualified for this job. He served as a law clerk for two Supreme Court Justices, Justice Byron White and Justice Anthony Kennedy. He has also had a distinguished career in the public sector and in the private sector. Finally, of course, he worked in the Office of the Attorney General. He worked in the Justice Department, and he had a great reputation there as well.
Of course, in 2006, not that long ago, he came to the floor of the Senate to be confirmed to the Tenth Circuit. And guess what. He was unanimously confirmed by this body. In fact, at the time, Senator Hillary Clinton voted to confirm him. Senator Joe Biden voted to confirm him. Senator Barack Obama voted to confirm him, and, by the way, so did a number of Democrats who are currently serving in the Senate. Not a single Senator objected. Why? Because the guy is so well qualified.
Since then, in his 10 years on the Tenth Circuit Court, his record has shown that he is fair, he is independent, and he is a consensus builder, which only ratified what the Senate had done. It showed that, in fact, he was the kind of person who represents us well in court.
By the way, he is also a guy who knows how to find common ground. Listen to these numbers: 97 percent of the cases he has decided were unanimous decisions with the other two judges on the panel. Typically, as you know, these are judges who have been appointed by Presidents who are Republican and Democrat. Finally, he has been in dissent less than 2 percent of the time. So this is a guy who 97 percent of the time is unanimous, and 2 percent of the time he is in dissent. Out of the more than 180 opinions he has written as a judge--180 opinions--only one had ever been appealed to the U.S. Supreme Court from the circuit court, and, by the way, that one was affirmed.
So this is a guy who clearly knows how to build a consensus, bring people together, and that is needed right now. It is needed in this body. It is needed in our country as a whole, and it is certainly needed in the judiciary.
By the way, it doesn't surprise me that he is a consensus builder. If you think about it, he was a law clerk for Justice Byron White and Justice Anthony Kennedy. They are both known famously as being consensus builders and being able to bring together disparate decisions to try to find a decision at the Supreme Court level. So he has seen it up close and personal. He knows how to do it.
I would say, though, in terms of this debate we are having, it is not just about Neil Gorsuch and it is not just about another seat, as important as it is, on the U.S. Supreme Court. It is also an opportunity, by voting for Neil Gorsuch, to ensure that we have reestablished the proper role of this body, of the legislative branch and of the judicial branch in our system of government.
Judge Gorsuch understands that his job as a judge is not to impose his views on people but rather to apply the law, as written--to apply the law as written. That is kind of a basic part of our Constitution.
He put it well in his testimony before the Senate Judiciary Committee. He said: ``A judge who likes every outcome he reaches is very likely a bad judge.'' What does he mean by that? I think what he meant is that he doesn't believe in substituting his personal views for what he is supposed to do as a judge.
So you may not like the decision, but you are constrained by the Constitution, by the law, and that is what judges should do.
He went on to say that the job of a judge is ``not about politics. . . . If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.''
I think he is right about that. It is not about what he wants. It is what the Constitution and the law say. Judges should not legislate from the bench. That is not their job.
Judge Gorsuch and I met recently, and he has met, I think, with about 80 of my 100 colleagues in the Senate, and he has talked to them about his views privately. I was very impressed with him. I was impressed with him as a person, his background, and his family. I was impressed with his approach.
I was talking about what he said that he is not going to substitute his own personal views. He basically said to me what he said in public. He is going to uphold the law, as written, even if his personal beliefs had led him to vote against the law if he had been in my position, as a legislator. I think that is what you want in a court.
But don't take my word for it. Judge Gorsuch also has earned the respect of lawyers and judges across the spectrum. Professor Laurence Tribe of Harvard Law School, who was an adviser to former President Obama and to previous Democratic Presidents, has said that Judge Gorsuch is ``a brilliant, terrific guy who would do the Court's work with distinction.'' That is Laurence Tribe.
Neal Katyal, who was President Obama's Acting Solicitor General--so a guy who knows a thing or two about arguing before the Supreme Court, because that is what the Solicitor General does with a lot of his time--has said that Judge Gorsuch's record ``should give the American people confidence that he will not compromise principle to favor the president who appointed him. . . . He's a fair and decent man.'' Again, this is the Acting Solicitor General for President Obama.
Yes, this debate is about something bigger than that, even. It is about Neil Gorsuch. It is about his character, his experience, and his judgments, but it is also about something I think even more important than this division of powers in our Constitution. It is about the rule of law itself. What does it mean?
Why does that matter? It matters because laws are an expression of the will of the people. The Constitution itself starts out with this idea, of course: ``We the people . . . establish this Constitution''-- not ``we the Congress'' or ``we the government.'' It is we the people who govern ourselves. The government is the servant of the people under our Constitution, not the other way around.
When judges try to change the law rather than apply the law, they make themselves into an unelected legislative body. That is not just arrogant, by the way. I think that is unfair. Not because it steals legitimate authority from us, the elected representatives in Congress, but because it steals that authority and silences the voices of the people who elected us. Ultimately, that is what this is all about.
In this Republic, Congress writes the laws, the President ensures that the laws are faithfully executed, and the courts apply the law and our Constitution to specific cases that come before them. That is how it should work. That is how our Founders intended it.
I think it is more important now than ever to have a Supreme Court that understands this role and resists the urge to act as a superlegislature.
In recent decades, the Court has been increasingly asked to decide a lot of important matters that affect us all. Think about it. Healthcare, or the Affordable Care Act is an example, and
immigration, energy and environmental policies, social policies, First Amendment rights to free speech, freedom of religion, Second Amendment rights, and a hundred other issues. The Court affects all of our lives in ways that are fundamental, and rulings by the Court, of course, cannot be appealed to a higher court. All you can do is change the law. On constitutional provisions, you can't even do that.
At the same time as the scope of judicial power has expanded and as the significance of the Supreme Court's rulings has increased, there are some judges who have essentially rewritten statutes that did not suit them. They have taken the law and said: We are going to rewrite this in a way that we think works better. That is not their job.
One example I would give you is that a couple of years ago, the Supreme Court ruled, for example, that the words ``established by a state''--this was in the Affordable Care Act--could also mean ``not established by a state.'' I mean, literally, the Court said that, and that ``legislature'' could also mean a popular referendum. So they took the very words of a statute and said: We don't like the way that is written. We are going to change these words, and we are going to adjudicate this matter based on our understanding of these words, which is based on our personal opinion.
I don't think these rulings made sense logically but, more importantly, they changed the law, as written by the people and the people's Representatives.
So the stakes are high here. We have to get this right. There are people who make the argument that the Constitution is such a living document, whose meaning evolves as popular opinion evolves, that we should make judges into basically pollsters or superlegislators. I don't think that makes sense. But, more importantly, I don't think it is fair, and it is one reason why so many people have felt like their voices aren't being heard, I believe, when the courts do that.
Again, Neil Gorsuch gets it. As he said in his testimony recently, his philosophy ``is to strive to understand what the words on the page mean . . . [to] apply what the people's representatives, the lawmakers, have done.''
This should be what we all want in a Supreme Court justice--someone who will fairly and impartially apply the law and protect the rights we have guaranteed by our Constitution.
To my colleagues on the other side of the aisle, I would make a plea today: I would say that in this regard, I would think Judge Gorsuch is exactly the kind of Justice that you would like, someone who is actually going to apply the laws that you write--that we write--and not impose his personal views.
The American Bar Association--not known as a conservative body--has unanimously declared Judge Gorsuch ``well qualified'' for this job. That is their highest rating--``well qualified.'' That is what they have given him. The ABA has noted that ``based on the writings, interviews, and analyses we scrutinized to reach our rating, we discerned that Judge Gorsuch believes strongly in the independence of the judicial branch of government, and we predict that he will be a strong but respectful voice in protecting it,'' meaning the independence of the judicial branch. That is pretty strong from the American Bar Association.
By the way, despite these accolades he has gotten and his respect for the lawmaking that so many of us do here in this body, some of my colleagues on the other side may decide to vote against Judge Gorsuch, and they certainly have a right to do that. Of course, they do. But let's at least give him a vote. Let's give him an up-or-down vote. He deserves that. If a nominee this qualified can't get an up-or-down vote on the Senate floor, it is not clear to me who could.
Some have argued recently that the standard for a Supreme Court Justice should be 60 votes in the Senate--not an up-or-down vote, not 51 votes or a simple majority. The Washington Post has looked at that recently, and the Washington Post gave the notion that it should be 60 votes three Pinocchios--that means the guy whose nose gets longer when he is not telling the truth. Here is what the Washington Post said: ``There is no `traditional' 60-vote `standard' or `rule' for Supreme Court nominations, no matter how much or how often Democrats claim otherwise.''
That is the Washington Post.
In fact, as you probably know, two sitting Justices on the Supreme Court right now were actually confirmed by this body with less than 60 votes. Justice Thomas, a very controversial nomination at the time, was confirmed 52 to 48--hardly a tradition of confirming with 60 votes. Justice Alito was confirmed 58 to 42 only 10 years ago. In fact, as we have heard on this floor, there has never been a successful filibuster of a Supreme Court Justice in the history of this body. That is hardly the standard. So I urge my colleagues to give him a vote, and I hope the result will be the confirmation of this smart, mainstream, decent man who is so well qualified for the Supreme Court and who has made it clear, again, that he is not going to impose his personal beliefs on the rest of us but will apply the law as written, and he is going to adhere to the U.S. Constitution. That is the kind of judge who deserves the support of all of us.
Thank you.
I yield back my time.