Confirmation Of Neil Gorsuch To The Supreme Court
Mr. Speaker, I thank the gentleman from New Jersey (Mr. Payne) for his very careful scrutiny of Judge Gorsuch and for participating with us tonight. It gives me great privilege to join with the distinguished Congresswoman from the District…
Mr. Speaker, I thank the gentleman from New Jersey (Mr. Payne) for his very careful scrutiny of Judge Gorsuch and for participating with us tonight.
It gives me great privilege to join with the distinguished Congresswoman from the District of Columbia (Ms. Norton) to be able to really articulate
what is at stake with the potential for Gorsuch to be the ninth member of the United States Supreme Court.
As I do that, allow me to offer a personal note of sympathy to my hometown, to the Constable's Office, in the shooting and death of Chief Clinton Greenwood, to his family for his tragic death, and to acknowledge the service that he has given in many, many ways as a law enforcement officer and attorney committed to the implementation of the law. My sympathy goes to his family and to his colleagues.
I also want to acknowledge the tragedy in Russia and the loss of life, which indicates how close all of us are around the world and that we should be committed to the fight against terrorism, wherever it may be.
If I might, I applaud the Democratic Senators, in this instance, in the other body to express my appreciation for taking a fight that many would be critical of. Now, that fight I don't put in the context of politics or partisanship. I have not heard one Senator who is opposing Judge Gorsuch and is not supporting or participating in the filibuster mention one word about the political elections or the process that occurred in 2016.
I have heard truly deliberative analysis that I think is important to recount, Congresswoman Norton. I am delighted with the gentlewoman from the District of Columbia and the distinguished leadership that the gentlewoman gives us as the chair of the Judicial Nominating Committee for the Congressional Black Caucus, a position that the gentlewoman has served ably for years and has resulted in some outstanding jurists because of her leadership that the Congressional Black Caucus has been able to advocate for.
During the tenure of President Barack Obama, as the gentlewoman from the District of Columbia worked very closely on his nominees, distinguished jurists have been placed on the Federal bench and in the Supreme Court to no one's complaint. In addition, President Obama followed protocol and consulted with Members of the other party in the United States Senate.
Unfortunately, we are now ending this process with the nomination of Judge Gorsuch by the President of the United States, this President who announced it as a campaign trick by issuing a list of individuals that he had not vetted but had been given by those who were bartering: This is a list, and you will have our support in the election.
My fear is that that is not the context in which distinguished jurists should be appointed to the Supreme Court. There is no doubt that this was bait for voters to be able to fall in the column of this particular individual who now holds the office.
So no criticism should go to my colleagues in the other body who realize that this is about life-or-death matters. This is about the millions of Americans who will suffer at the hands of Judge Gorsuch on the United States Supreme Court. I am more convinced now.
I am grateful for their debate because, as they have debated in a very detailed, passionate manner, I hope that they have been able to provide light and education to Americans who may be watching and trying to understand the ``no'' vote and the ``yes'' vote, the filibuster, that it is not in any way anyone's political desire to not have the Supreme Court working on behalf of the American people, adhering to the high calling and ultimate judgment of the Supreme Court, which is to recognize settled law and to be able to respect the rights of all Americans and not skew this Court to the point that some Americans will be left out in the hall of justice.
Why should my friends in the other body who have taken this courageous stand yield to false criticism and pontificating and grandstanding about they have never seen this before, the other persons who have voted ``yes'' have never seen this before, this is outrageous, a qualified individual.
I have no angst against the person. He has ascended to the Tenth Circuit Court of Appeals. He has colleagues who respect him. He showed himself respectful before the Senate Judiciary Committee; in fact, some called him charming and engaging. Again, I make mention of the fact that this is about life and death.
So let me put in the context a very important statement made by Amanda Bronstad in the National Law Journal article, February 28, 2017: ``Neil Gorsuch `Piercingly Textual' and Often Pro-Defense on Class Actions and Arbitration.''
``According to a careful review of Gorsuch's decisions, his textualist approach, more than ideology, is the common theme of his opinions on class actions, arbitration, and mass torts. And yet, though some of his decisions have favored plaintiffs, Gorsuch's careful judicial reasoning and parsing of statutory language has more often led him to side with the defense,'' leaving most others out in the cold.
In addition, Judge Gorsuch has a disdain for those who seek to redress their civil rights and other remedies of law.
In a 2015 article published in the conservative National Review, these are his words:
``American liberals have been addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private school education.
``This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.''
Well, Judge Gorsuch, let me tell you a thing or two. I grew up in a segregated America. At my birth, African Americans were treated unequally in terms of education as well as accommodations, as well as the right to vote. We couldn't even march in some places in the Deep South without being shot at, losing our lives, being hosed at, and dogs making sure that our young kids were intimidated and even bitten.
Maybe he fails to remember the four little girls in the 16th Street Baptist Church in Birmingham, called the bombing in Birmingham, in 1963. Maybe he fails to remember the tragedy of the Edmond Pettus Bridge or Jimmie Lee Jackson shot dead in the streets of Selma. Or maybe he doesn't understand Brown v. Board of Education, Roe v. Wade, Miranda v. Arizona, Gideon v. Wainwright, New York Times v. Sullivan, Obergefell v. Hodges, and Shelby County v. Holder. These cases are dealing with issues such as the right to vote, the right to an equal education, the Fourth Amendment interpretation of the right to be protected from unreasonable search and seizure, and the First Amendment right to freedom of the press.
Maybe he doesn't understand that these cases have brought to America the image and the recognition of justice. It doesn't seem that he has that interpretation.
So I just want to read another interpretation of his record by the Leadership Conference on Civil and Human Rights.
``Judge Gorsuch's decade-long record on the Federal bench, as well as his writings, speeches, and activities throughout his career, demonstrate he is a judge with an agenda.''
What a frightening proposition, that he goes to the Supreme Court, having given the impression that he is just an open book, genuinely concerned.
``His frequent dissents and concurrences show he is out of the main stream of legal thought and unwilling to accept the constructs of binding precedent and stare decisis when they dictate results he disfavors.''
Stare decisis is something that we learned in law school, but that is a very appropriate and important basis of decisions.
``If confirmed to the Supreme Court, which is closely divided on many critical issues, Judge Gorsuch would tip the balance in a direction that would undermine many of our core rights and legal protections. He lacks the impartiality and independence the American people expect and deserve from the Federal bench.''
Let me make one or two other points that I think are so very important. I hope to put my entire statement into the Record, and we will be engaging, and I know that my colleague will have further comments, but I want to make sure that we point back to those who are criticizing a very courageous stance because they are taking the stance, my friends in the other body, in the backdrop of all these accolades and
how genuine and charming he is. I have said that before.
But he is going against the backdrop of protocol--no engagement with the Democratic Senators, no adherence to the President, when he was President-elect, who pledged to the Nation that he would be the President of all Americans--because it rings hollow to tens of millions of Americans.
My colleague from New Jersey mentioned the truck driver story. It was a 2-1 decision. He was dissenting. No person with common sense and knowledge of the law would reject the understanding that this individual acted not against the instructions of his employer in leaving a truck that--by the way, the cargo area of the truck--nothing was violated, no product was taken, with bad brakes, and in jeopardy of his life, if he had left the cargo portion of the truck and tried to drive away on this frozen night, after waiting 3 hours in a cabin where he was freezing to death, he would have died.
Yet Judge Gorsuch did not think that was important enough to rule in favor of this African-American who had a 2-1 decision. He thought that the employer could fire him; and there was no factual basis for that, that he did something when it was a balmy day, and he just went off recklessly because he didn't want to be bothered or he was tired or he was hungry. That was not the case.
That is cruel, Judge Gorsuch. Your conservative ideology and professed judicial philosophy of original intent has harmed many.
He is not an unbiased judge. At best, he is a younger, more charming version of Judge Robert Bork, who was rejected 58-42 by the Senate in 1987. So he has a history of ruling against people who have used the legal system to hold government officials accountable.
The gentleman who was fired was fired, I think, 7 years ago, and has not been able to find a job yet.
By the way, the truck's heater didn't work.
His words were--Judge Gorsuch dissented and said the employee should have followed orders, even at the risk of serious injury.
In NLRB v. Community Health Services, Judge Gorsuch again dissented from a majority opinion that found in favor of employees, where a hospital was required to award back pay to 13 employees whose hours had been reduced, in violation of the National Labor Relations Act.
As the ranking member on the Subcommittee on Crime, Terrorism, Homeland Security and Investigations, we are trying to find the right kind of balance between police and community. But Judge Gorsuch has ruled that there is no reason to give police any punishment, such as the case when an individual used a stun gun and the victim died.
Judge Gorsuch's judicial record on police accountability minimized the Fourth Amendment protections against warrantless search and seizure.
I will continue my discussions of Judge Gorsuch. I will come back again and finish my comments on issues dealing with, again, civil rights and the rights of women.
I am delighted to cohost and comanage this hour dealing with the nomination of Judge Gorsuch.
Mr. Speaker, I thank the gentlewoman for again articulating the really egregious opinions, judicial approach, and temperament of Judge Gorsuch.
I will conclude my remarks with a focus on the issues of women's rights as well as some cases dealing with immigration.
Immigration, Mr. Speaker, is a crucial issue that we are addressing now. In fact, I will cite an incident that happened in our district--or in my district or in my community just a few days ago, which means, as we proceed, there may be a number of cases coming to the Federal courts and the district court because I think, as my colleague has indicated-- both of us have indicated--that the courts are for petitioning. That is what the courts are for.
It seems that Judge Gorsuch wants to slam the door. And this is a-- how should I say it--a metaphor. It is not a precise comment by the judge, but annoyed that people have to come and use the courts. As he has indicated, minorities and women and others want to use the court for their social agenda.
And for fear of being redundant, I feel moved--my passion is so strong because, Judge Gorsuch: Have you walked at any moment in your life in my shoes as a woman and as a minority?
Have you walked in the shoes of the little children who made the plaintiffs of Brown v. Board of Education of Topeka?
Were you in any way discriminated against with respect to education?
Have you ever been a victim of stop and frisk?
Have you ever been incarcerated for something you did not do?
Have you ever been a woman who had been subjected to sexual harassment or discrimination?
Do you understand the purpose of title VII?
Do you understand the value of affirmative action both in policy and in law?
Just a few weeks ago we got an effective and important decision on affirmative action out of this Supreme Court, in a court that is 4-4.
I don't think that is the case. And I just, again, want to take this as I cite these cases. I just want to, again, cite Amanda Bronstad, that some of his decisions may have favored one or two plaintiffs. I am not going to deny that. But Gorsuch's careful judicial reasoning and parsing of statutory language has more than often led him to side with the defense.
That is not the role of a Supreme Court Justice. It is not to side with anyone. It is to have the view on the basis of the appeal within the context of precedence and others how a decision should be rendered.
So these are Judge Gorsuch's decisions:
In Strickland v. UPS, Gorsuch dissented from a ruling giving a female UPS driver a chance to prove sex discrimination, arguing that the plaintiff had not provided evidence that she was treated less favorably than her male colleagues, even though in the documents submitted in the lower court, her coworkers testified and gave written testimony detailing the level of mistreatment they witnessed her receiving while employed by UPS.
In Hwang v. Kansas State University involved a professor employed by Kansas State University who was diagnosed with cancer, and after treatments, requested an extension of her disability--another woman-- due to a flu outbreak on campus which could potentially compromise her health. And Judge Gorsuch talked about ``showing up'' as an essential job function, and that the Rehabilitation Act should not be used as a safety net for employees who cannot work. I think her request was an extension, not a forever.
Two women, among others, that he found no reason to be supportive of. He could not find no legal precedent, nothing that would give him the ability to make a decision that was within the law and humane, even though he was in the dissent.
And then in Planned Parenthood Association of Utah v. Herbert, the Governor of that State, again, he dissented against the court's majority, impacting women's health, to decline a full court review of the case--the court's majority decision to decline a full court review of the case, in which Governor Herbert of Utah stripped Federal funding away from Planned Parenthood. Neither party requested a full court review; however, Judge Gorsuch decided to deviate from court practices and norms to signal his favor of Governor Herbert's decision.
Other women--he continues to show hostility toward women's rights and his willingness to overlook institutions that discriminate against women. His record indicates that.
Let me finish with this comment on immigration--and if I might, Mr. Speaker, how much time is remaining?
Mr. Speaker, let me finish quickly and let my colleague from the District of Columbia close.
Let me indicate an immigration case, and he voted to affirm the district's court granting of summary judgment which blocked a title VII national origin discrimination case from going to
trial, despite evidence of animus, unlawful reverification and document abuse by the employer.
Mr. Speaker, as a senior member of the House Committee on the Judiciary, Ranking Member of the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and member of the Congressional Voting Rights Caucus, I rise today to express my views regarding the nomination of Judge Neil Gorsuch to be Associate Justice of the Supreme Court.
The Supreme Court is the highest court in the land and the final arbiter of our Constitution and laws, and its rulings can impact the lives and rights of all Americans as shown in the cases of Brown v. Board of Education, Roe v. Wade; Miranda v. Arizona; Gideon v. Wainwright; New York Times v. Sullivan; Obergefell v. Hodges; and Shelby County v. Holder, to name but a few.
Judge Gorsuch is a judge with an agenda, as demonstrated by his record on the federal bench, as well as his writings, speeches, and activities throughout his career.
Judge Gorsuch's frequent dissents and concurrences show he is out of the mainstream of legal thought and unwilling to accept the constructs of binding precedent and stare decisis when they dictate results he disfavors.
Judge Gorsuch's appointment to the Court would tip the balance in a direction that would undermine many of the core rights and legal protections Americans cherish.
For the reasons I will discuss in detail, the Senate should reject his nomination and not consent to his confirmation as the next Associate Justice of the U.S. Supreme Court.
On Election Night the President-Elect pledged to the nation that he would be a president to all Americans.
That pledge will ring hollow to tens of millions of Americans in light of his nomination of Judge Neil M. Gorsuch to be an Associate Justice of the U.S. Supreme Court.
Perhaps nothing would do more to reassure the American people that the President is committed to unifying the nation than the nomination and appointment of a person to be Associate Justice who has a record of championing and protecting, rather than opposing and undermining, the precious right to vote; the constitutionally guaranteed right of privacy, criminal justice reform, and support for reform of the nation's immigration system so that it is fair and humane.
That is not to be found in the record or character of Judge Gorsuch.
It should not be forgotten that the vacancy at issue was created in February 2016 by the death of Justice Antonin Scalia and should have been filled by the confirmation of the eminently qualified Judge Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.
In fact, the only reason Judge Garland is not now on the Court is because Republican Senators disregarded a century of precedent and their constitutional oaths and refused to consider the nomination because it was made by President Obama.
Judge Gorsuch's conservative ideology and professed judicial philosophy of ``original intent,'' which more accurately should be called the doctrine of predetermined result, has been at the core of his prior legal decisions.
He is not an unbiased judge; at best, he is a younger, more charming version of Judge Robert Bork, who was rejected 58-42 by the Senate in 1987.
Unlike his predecessors, Presidents Obama, Clinton, Reagan, Eisenhower among them, the current President did not consult in advance with the bipartisan leadership of the Senate and its Judiciary Committee.
Instead, the President selected Judge Gorsuch from the list of names provided him by the right-wing legal group, the Federalists Society.
Judge Gorsuch's adherence to originalism is alarming and should raise concerns for all Americans because on a narrowly divided Court, his could be the deciding vote to dismantle many of the constitutional safeguards and protections upheld by the Court that have moved the country forward and made it better.
Judge Gorsuch has a history of ruling against people who have used the legal system to hold government officials accountable.
He has also used the bench to rule in favor of large corporations routinely and against the rights of workers.
He has been lenient on those that have used excessive force and police brutality.
His record demonstrates hostility towards equal opportunity, worker's rights, women's access to reproductive healthcare services, and protections for persons with disabilities.
For example, in TransAm Trucking, Inc. v. Administrative Review Board, the majority held that a trucking company unlawfully fired an employee in violation of federal whistleblower protections.
The employee, Alphonse Maddin, was a truck driver whose brakes broke down in the middle of a freezing January night in Illinois.
The truck heater didn't work either, and he got so cold that he couldn't feel his feet or torso, and he had trouble breathing.
Nonetheless, his boss ordered him to wait in the truck until a repairperson arrived.
After waiting for three hours, Mr. Maddin finally drove off in the truck and left the trailer behind, in search of assistance.
His employer fired him a week later for violating company policy by abandoning his load while under dispatch.
The panel majority said the firing was unlawful, but Judge Gorsuch dissented and said the employee should have followed orders even at the risk of serious injury.
In NLRB v. Community Health Services, Inc., Judge Gorsuch again dissented from a majority opinion that found in favor of employees, where a hospital was required to award back pay to 13 employees whose hours had been reduced in violation of the National Labor Relations Act.
Judge Gorsuch's frequent and recurring dissents in workers' rights cases suggest a refusal to follow binding case law when it leads to results that favor workers rather than businesses and employers.
In Strickland v. UPS, Gorsuch dissented from a ruling giving a female UPS driver a chance to prove sex discrimination, arguing that the plaintiff had not provided evidence that she was treated less favorably than her male colleagues even though her coworkers testified and gave written testimony detailing the level of mistreatment they witnessed her receiving while employed by UPS.
Hwang v. Kansas State University involved a professor employed by Kansas State University who was diagnosed with cancer, and after treatments requested an extension for her disability due to a flu outbreak on the campus, which could potentially compromise her health.
Judge Gorsuch ruled that ``showing up'' for work is an essential job function and that the Rehabilitation Act should not be used as a safety net for employees who cannot work.
In Planned Parenthood Association of Utah v. Herbert, Judge Gorsuch dissented against the court's majority decision to decline a full court review of the case, in which, Governor Herbert of Utah stripped federal funding away from Planned Parenthood.
Neither party requested a full court review, however, Judge Gorsuch desired to deviate from court practices and norms to signal his favor for Governor Herbert's decision.
This particular case amplifies Judge Gorsuch's inability to remain impartial when deciding cases that may conflict with his personal beliefs.
Throughout his tenure as a Judge, Gorsuch's record indicates his hostility toward women's rights and his willingness to overlook institutions that discriminate against women.
Women will likely be disproportionately impacted by Judge Gorsuch's appointment to the United States Supreme Court and any decisions related to health, labor, and reproductive justice.
Judge Gorsuch's record shows that he believes police officers always should be granted qualified immunity, allowing police officers and other government officials to avoid being held accountable for the excessive use of force.
His record on police immunity aligns with President Trump's belief in police impunity.
In cases where victims of excessive force did not pose an imminent threat to police safety, Judge Gorsuch has a tendency to side with police.
Judge Gorsuch's judicial record on police accountability minimizes the Fourth Amendment protections against warrantless search and seizure.
In three separate cases, Gorsuch ruled in favor of police searches of vehicles without a warrant.
As an Associate Justice of the Supreme Court of the United States, Judge Gorsuch would be one of the nine individuals tasked with one of the most critical systems of American democracy.
Because of the decisions rendered by the Supreme Court of the United States, women have been granted reproductive rights, de jure segregation and discrimination against African-Americans has been abolished and their right to vote protected, workers have been granted security from exploitative labor practices; and marriage equality is the law of the land.
If confirmed to a evenly divided United States Supreme Court, it is unlikely that Judge Gorsuch would have a balanced, unbiased view of important issues.
Judge Gorsuch's extreme judicial philosophy of original intent would likely lead him to cast decisive, out-of-the mainstream votes that reverse significant gains in the areas of police accountability, civil rights and liberties, women's reproductive rights, and workers' rights.
Judge Gorsuch's record in each of these areas should raise concerns for all Americans.
Opposing Judge Gorsuch is not a difficult decision; for members of the communities represented by CBC members, it is a matter of survival, of life and death.
An Associate Justice would be expected to be an independent jurist capable of rendering
judicial decisions that prevent executive overreach.
No senator should vote to confirm the nomination of Judge Neil Gorsuch as Associate Justice if he or she has the slightest doubt that he possesses the character, qualities, integrity, and commitment to justice and equality needed for this position.
There is so much to say about Judge Gorsuch, so much to say about the stance that is being taken by colleagues who are not being political, who are not talking about the 2016 election, who are simply talking about the courthouse door being slammed in the face of the most vulnerable.
I believe that this judge should not ascend to the United States Supreme Court.