Schumer Floor Remarks Announcing Opposition to the Nomination of Judge Gorsuch
Washington, D.C. – U.S. Senator Charles E. Schumer announced today that he will be opposing the nomination of Judge Neil Gorsuch to be a justice on the United States Supreme Court. Below are his remarks:
I’ve had the opportunity these past three days to watch Judge Neil Gorsuch in the Judiciary Committee and to review his credentials and record on the 10th Circuit and before that. I’d particularly like to recognize the outstanding work done by every Democratic member of the Judiciary Committee. They were just outstanding in questioning Judge Gorsuch despite his lack of candor and desire to answer. And I’d like to particularly call our exceptional ranking member, Senator Feinstein, who’s done a wonderful job leading that committee.
Now, I’ve thought long and hard about his nomination and what it means for the future of the Supreme Court and for the future of our country. What is at stake is considerable. The decisions we make here in the Senate over the next few weeks about Judge Gorsuch, as on any Supreme Court nominee, will echo through the lifetime tenure of that Judge – through a generation of Americans.
Discussions of the Supreme Court can get wonky and technical, with invocations of precedent and canons of interpretation. What is at stake, however, is not abstract. It is real, and it is concrete, for Americans whose lives, health, happiness and freedoms are on the line at the Supreme Court. Closely divided decisions recently have meant the difference between the ability to marry the person you love, or not; the ability to have your right to vote protected, or not; the ability to make personal choices about your own healthcare, or not. The Supreme Court matters a great, great deal. It matters for workers who want to protect both their lives and their jobs; for employees who need to be able to seek redress for discrimination; for parents who want their kids to get a fair shake in the education system.
It is with all of this in mind that I have come to a decision about the current nominee.
After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will have a cloture vote, he will have to earn sixty votes for confirmation. My vote will be “No.” And I urge my colleagues to do the same.
To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules I say: if this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees, and President Bush’s last two nominees, the answer isn’t to change the rules – it’s to change the nominee.
This morning I’d like to lay out the reasons why I’ll be voting “no” on this nomination. First, Judge Gorsuch was unable to sufficiently convince me that he’d be an independent check on a president who has shown almost no restraint from executive overreach. Second, he was unable to convince me that he would be a mainstream justice who could rule free from the biases of politics and ideology. His career and judicial record suggests not a neutral legal mind but instead someone with a deep-seated conservative ideology. He was groomed by the Federalist Society and has not shown one inch of difference between his views and theirs. And finally, he is someone who almost instinctively favors the powerful over the weak, corporations over working Americans. There could not be a worse time for someone with those instincts.
Judge Gorsuch’s opportunity to disabuse us of all of those objections was in the hearing process, but he declined to answer question after question after question with any substance. Absent a real description of his judicial philosophy, all we have to judge the judge on is his record.
First, Mr. President, I want to address the first issue I raised: that of judicial independence. It is so clear that, at this moment in our history, our democracy requires a judge who is willing to rule against this president.
This Administration seems to have little regard for the rule of law and is likely to test the Constitution in ways it hasn’t been challenged for decades. It is absolutely the case that this Supreme Court will be tried in ways that few Courts have been tested since the earliest days of the Republic, when constitutional questions abounded.
The president himself has attacked individual judges and the credibility of the judiciary writ large. The president attacked the 3-judge panel of the 9th Circuit, and said if they didn’t decide with him, they’d be responsible for the next terrorist act! We are in uncharted territory with this president and judicial independence. It requires a strong independent backbone. Judge Gorsuch has shown none.
Senators on the Judiciary Committee rightly asked Judge Gorsuch direct questions about this issue. I did so myself in my meeting with the Judge. And while the Judge has repeatedly asserted his independence, he could not point to anything in his record to guarantee it. Judge Gorsuch offered the Judiciary Committee myriad platitudes on this point. “No man is above the law,” he said. He said he was “disheartened” by the president’s attacks on the judiciary. The president, for his sake, said that Judge Gorsuch didn’t mean him; and everyone left it at that. If Judge Gorsuch had an ounce of courage, had shown a scintilla of an ability to be independent, he would have said “no, Mr. President, no President Trump – I did mean you.” Instead, he just tells us that he’s demoralized, disheartened. Telling us is not the same as showing us – he is asking us to take him at his word, but his record suggests that he has long been someone who has advocated extreme deference to assertions of broad presidential power.
That leads me to my second point, M. President, that Judge Gorsuch was unable to convince me that he would be a neutral judge, free of ideology and bias. The hearings this week were an opportunity for Judge Gorsuch to explain his record, to tell us how he thinks and how his judicial philosophy does not fundamentally advantage the powerful. Instead, we got banalities and platitudes. We did not get any real answers to any real questions about what he thinks about the law and why.
He refused to answer general questions on dark money in politics, LGBTQ rights, and the constitutionality of a Muslim ban. I couldn’t believe it when I asked him, is a law that bans Muslims, a law that says all Muslims are banned from the U.S. constitutionally – he couldn’t even say anything against that. He refused to say whether he agreed with Supreme Court decisions in seminal cases like Brown v. Board of Ed, Roe vs. Wade, or Griswold v. Connecticut, despite the fact that his predecessors, Justices Roberts and Alito, had said they agreed with those cases. He refused to answer questions about the Emoluments Clause – a section of the constitution that prohibits foreign corruption of US officials. Mr. President, instead of an umpire calling balls and strikes in baseball, what we really saw was an expert – a well-trained expert – in dodgeball.
My friend the ranking member of the committee said it best: “What worries me,” she told the nominee, “is that you have been very much able to avoid any specificity, like no one I have ever seen before.”
Let me repeat: there is no legal standard, rule or even logic for failing to answer questions that don’t involve immediate and specific cases that are or could come before the court. It is evasion, just evasion, plain and simple. And it belies a deeper truth about this nominee.
If any one doubts that Judge Gorsuch doesn’t have strong views – that thinks he’d just be a neutral judge who “called balls and strikes” as Judge Roberts once put it – just look at the way he was chosen. He was supported and pushed forward by the Heritage Foundation and the Federalist Society – and groomed by billionaire conservatives like Mr. Anschutz. President Trump simply picked someone off their list. President Trump sought advice and consent from the Federalist Society and Heritage Foundation instead of the United States Senate.
Now, does anyone think the Federalist Society would choose someone who just “called balls and strikes?” Does anyone think they’d put on their list a neutral, moderate Judge – when they haven’t supported anyone but judicial conservatives – almost all hard right judicial conservatives – in their history? When they’ve been dedicated for a generation to influence the courts to favor corporations and special interests? If anyone doubts that Judge Gorsuch could be an activist judge, with views eschewing the interests of average people, look at how he was selected. And look at how much money - dark, secret, undisclosed money - his supporters are spending on his confirmation.
Anyone groomed by the Federalist Society will not call balls and strikes; their views are best foretold by the ideology of the people who groomed them. To say Judge Gorsuch has no ideology whatsoever is absurd; he just won’t admit it to the American people. To say he is just neutral in his views is belied by his history since his college days and by his own judicial record.
He even tried to deny it. In the hearings, Judge Gorsuch repeated the hollow assertion that judges don’t have parties or politics. He said there are no “democrat judges or republican judges.” But if that were true, we wouldn’t be here, would we? If that were true, and if the Senate was merely evaluating a nominee based on his or her qualifications, Merrick Garland would be seated on the Supreme Court right now.
Merrick Garland is not a Justice. We all know why. We all know that my friends across the aisle held this Supreme Court seat open, for over a year, in hopes that they would have the opportunity to install someone hand-picked by the Heritage Foundation and the Federalist Society to advance the goal of big-money interests entrenching their power in the courts.
They don’t even mind that this nomination is moving forward under the cloud of an FBI investigation of the president’s campaign. The Republicans held a Supreme Court seat open for a year, under a Democratic president, who was under NO investigation, but now are rushing to fill the seat for a president whose campaign is under investigation. It is unseemly and wrong to be moving so fast on a lifetime appointment in such circumstances.
Finally Mr. President, Judge Gorsuch came into this hearing with a record that raises deep concerns about whether he would consider fairly the plight of the average citizen before the interests of the powerful special interests. I’ve examined his record. I saw a Judge who repeatedly sided with insurance companies who wanted to deny disability benefits to employees. I saw a Judge who, in employment discrimination, sided with employers the great majority of the time. I saw a Judge who, on the issue of money in politics, seems to be in the same company as Justices Thomas and Scalia -- willing to restrict the most common-sense contribution limits
In the hearings, Judge Gorsuch did nothing to explain his philosophy; did nothing to assuage those concerns. We’ll just have to go by his record. A record that shows time and time again, his rulings favored the already-powerful over ordinary Americans.
Judge Gorsuch ruled against a teacher, Grace Hwang, who, having been through two bouts of cancer, was advised by her doctors not to return to her college campus during a flu epidemic lest her life be put at risk. She was fired for taking sick leave – Judge Gorsuch, true to form, voted to uphold that dismissal. Her daughter, Katherine, told us last week “This decision to protect her health cost my mom her job. When Judge Gorsuch issued his ruling, he didn't think about the impact that this had on our family. The law calls for “reasonable accommodation for those who are disabled.” Judge Gorsuch ignored that human cost.
Judge Gorsuch ruled against a truck driver, Alphonse Maddin, who had to make a similar choice between his employer and his life. I met with him. He told me a harrowing story of being stuck in the cab of a tractor-trailer with frozen brakes, no heat, temperatures outside dipping to 27-below zero. He had a choice: leave the trailer with broken brakes and drive the cab to safety, or stay in the trailer and freeze to death. He radioed his company to explain his predicament and they told him that the cargo was the most important thing; he couldn’t leave. Rather than risk the lives of other motorists on the freezing highway by driving a trailer with frozen brakes, Mr. Maddin struggled to unhitch his trailer and drive his cab to safety – returning later for it once he was not at risk of dying in the cold. For that, his company fired him. He sued. Seven judges heard this case as it went through appeal. Only one – Judge Gorsuch, in dissent – ruled against him. Judge Gorsuch used an exceptionally technical and illogical reading of the statute to reach the absurd conclusion that Mr. Maddin was obligated to risk his life to protect his cargo.
Mr. Maddin said that Judge Gorsuch’s nomination to the Supreme Court “gives him pause for concern…” because he “demonstrated a willingness to artfully diminish the humane element that encompassed the issue.”
Judge Gorsuch also ruled against a parent of a severely autistic child, Luke, who sought what the Individuals with Disabilities in Education Act guarantees him – the right to an education that met his needs. Jeff Perkins, Luke’s father, is testifying before the Judiciary Committee today. Their story is powerful. Judge Gorsuch ruled that Luke was not entitled to attend a specialized school because he was able to make more than de minimis (the bare minimum) progress in the normal educational system.
Just yesterday, Mr. President, just yesterday, the Supreme Court unanimously – unanimously – rejected Judge Gorsuch’s interpretation of the IDEA. The Court held that “when all is said and done, a student offered an educational program providing ‘merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.” That puts Judge Gorsuch’s interpretation of the IDEA law to the right of even Justice Thomas – a very difficult feat.
Mr. President, who we put on the bench, their basic judgment, matters.
While I do not think that personal views and experiences should bear on the decision of day-to-day cases, there’s a reason that we don’t program computers to decide cases. We do not want judges with ice water in their veins. What we want and need are judges who understand the litigants before them, and bring a modicum – at least a modicum – of human judgment into the courtroom.
You can call this trait empathy, or mercy – I think it all falls in the category of common sense. It’s a common sense that necessarily comes from each person’s own unique life experience. Even Judge Gorsuch acknowledged this when he told the committee “I am not an algorithm.” Yet he wouldn’t tell us how – as a human, a non-algorithm – he would uniquely approach a case.
When it comes to the application of the law, that empathy, that mercy, that “humane element” of common sense as Alphonse Maddin, the truck driver, put it -- that is the most important judicial trait of them all. Because ultimately the law is abstract, but the people and situations are real; the task of the judge is to apply those abstract legal doctrines to very human, sometimes very messy, situations. That’s a hard thing to do. To bring fairness and justice to a world that’s too short on both.
I’m reminded, Mr. President, of words spoken by Portia – the great lawyer in the Merchant of Venice – who spoke of the blessedness and necessity of mercy in applying the law.
The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
’Tis mightiest in the mightiest: it becomes
The thron-ed monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
Judge Gorsuch, Mr. President, told us that he is not God, and that is true. But his humanity does not excuse him from the attribute of mercy – instead, his humanity should require it.
Mr. President, Alphonse Maddin sought the mercy of the law; the Hwang family sought the mercy of the law; Luke, the autistic child whose school was failing him, sought the mercy of the law;
and the man who had the power to see plain sense of their cases…who could rule in their favor and right the wrongs that had been done to them – as other judges did, in each of those cases – that man, Judge Neil Gorsuch, said no.
I’m voting “no” on Gorsuch for Alphonse Maddin and workers across the country, for the Hwang family and for others who don’t want to choose between their health and providing for their children, and for the Perkins family, who love their children just as they are and want for them no less than the opportunities afforded to every other child in America.
The American people deserve someone who sees average litigants as more than incidental consequences of precedent when that precedent produces an absurd result; whose view of the law is not so cold and so arid so as to wring out every last drop of humanity and common sense. It requires only the bare minimum of judicial decency to rule the right way in the cases I mentioned, and Judge Gorsuch did not.
That’s all the evidence my colleagues should need to vote no – and I urge them, and will urge them in the days ahead, to do so.
