Schumer Floor Remarks on Equal Pay Day and the Upcoming Vote to Confirm Judge Gorsuch to the Supreme Court

Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks underscoring the significance of Equal Pay Day and explaining his opposition to confirming Judge Neil Gorsuch to the Supreme Court. Below are his remarks:

Mr. President, today is Equal Pay Day. Unlike many holidays on our calendar, Equal Pay Day is not actually a commemoration of some achievement -- equal pay for women is still not close to a reality. Women still make 79 cents for every dollar a man makes in the same position. African American women are making 64 cents on the dollar. Latina women are making 54 cents on the dollar.

That’s not right – it’s holding the American dream out of reach for too many women in this country. So Equal Pay Day is not a commemoration – it’s a reminder that glass ceilings are everywhere; that there are hugely consequential, tangible barriers that women face every single day that men do not.

In 2007, the Supreme Court, in a 5-4 decision by the conservative majority in Ledbetter v. Goodyear, ruled that Lilly Ledbetter could not pursue her claim that she was entitled to equal pay. The Lilly Ledbetter Fair Pay Act, to reverse this unfair Supreme Court decision, was the first bill President Obama signed into law in 2009. 

And that leads me to the Supreme Court – it is just one example of what is at stake in the nomination of Judge Gorsuch to the Supreme Court, which we now debate here on the floor of the Senate.

I was listening to the Majority Leader earlier this morning, and I cannot believe that he can stand here on the floor of the U.S. Senate and with a straight face say that Democrats are launching the first partisan filibuster of a Supreme Court nominee. What the Majority Leader did to Merrick Garland by denying him even a hearing and a vote is even worse than a filibuster. For him to accuse Democrats of the first partisan filibuster on the Supreme Court belies the facts, belies the history, belies the basic truth.

As my friend Rep. Adam Schiff has said, “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.” Let me repeat that, Adam Schiff said it better than I could ever. “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”

Now, even though my friend the Majority Leader keeps insisting that there is “no principled reason to vote” against Judge Gorsuch, we Democrats disagree.

• First, he has instinctively favored corporate interests over average Americans.
• Second, he hasn’t shown a scintilla of independence from President Trump.
• And third, as my colleague from Illinois elaborated on, he was hand-picked by hard-right, special interest groups – not because he called balls and strikes. They wouldn’t put all that effort and money into a call of balls and strikes. These are ideologues who want to move America far to the right. He was picked by hard-right special interest groups because his views are outside the mainstream.
• According to analyses of his record on the 10th Circuit conducted by the New York Times and the Washington Post by experts on the court, Judge Gorsuch would be one of the most conservative voices ever on the Supreme Court should he achieve that. The Washington Post said that “Gorsuch’s actual voting behavior suggests that he is to the right of both Alito and Thomas, and by a substantial margin.” That would make him THE most conservative Justice on the court in recent memory. That’s why the Heritage Foundation and the Federalist Society put Judge Gorsuch on their list for President Trump.
• As Emily Bazelon of the New York Times put it in a brilliant article that I would urge all my colleagues to read: “…the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”
• And I ask unanimous consent that that article be added into the record.

Mr. President, there are clearly principled reasons to oppose Judge Gorsuch; and enough of us Democrats have reasons to prevent his nomination from moving forward on Thursday’s cloture vote.                                                         

So the question is no longer whether Judge Gorsuch will get enough votes on the cloture motion, the question is now: will the Majority Leader and our friends on the other side break the rules of the Senate to approve Judge Gorsuch on a majority vote?

That question should be the focus of debate here on the floor; and it should weigh heavily on the conscience of every Senator.

Ultimately, my Republican friends face a simple choice: they can fundamentally alter the rules and traditions of this great body, or they could agree to sit down with us Democrats and the president to come up with a mainstream nominee who can earn bipartisan support to pass the Senate.

No one is making our Republican colleagues change the rules. No one is forcing Senator McConnell to change the rules. He’s doing it at his own volition, just as he prevented Merrick Garland from getting a vote at his own volition. Senator McConnell and my Republican colleagues are completely free actors and making a choice – a very bad one in our opinion.

Now, I know my friends on the other side of the aisle are deeply uncomfortable with this choice, so they are scrambling for arguments to justify breaking the rules.

Let me go through a few of those justifications and explain why each doesn’t hold up.

First, many of my Republican colleagues will argue that they can break the rules because Democrats “started it” in 2013, when we lowered the bar for lower court nominees and cabinet appointments. Well, let’s talk about that.

The reason Majority Leader Reid changed the rules was because Republicans had ramped up the use of the filibuster, the very filibuster they now decry, to historic proportions – they filibustered 79 nominees in the first five years of Obama’s presidency. Let’s put that in perspective: prior to President Obama, there were 68 filibusters on nominations under all other presidents combined, from George Washington to George Bush. Now we had 79. Our colleague, Leader McConnell, the filibuster is wrong. Seventy nine – more than all the other presidents put together. If the shoe was on the other foot…

They deliberately kept open three seats on the second most important court in the land, the DC Court of Appeals, because it has such influence over decisions made by the government. This is the court, other than the Supreme, that the Federalist Society and the Heritage Foundation hate the most. The deal we made in 2005 allowed several of the most conservative judges to be confirmed to that court. Very conservative people, left a bad taste in my mouth, and I’m sure in my colleagues’ and in many others. But then when President Obama came in, they insisted on not filling any additional seats on the court, which of course would have been Democratic seats, and eventually held open three of 11 seats on that court.

They said they would not allow the seats to be filled by President Obama, an eerie precedent which the Majority Leader repeated with Merrick Garland. He didn’t want the DC Circuit to have Obama appointed, Democratic appointed nominees. He didn’t want that on the Supreme Court, so he blocked Merrick Garland. He didn’t want it on the DC Circuit, so they wouldn’t let any of President Obama’s nominees to come to the floor. Merrick Garland’s nomination was not the first time the Majority Leader held open a judicial seat because it wasn’t a president of his party, and that was not during an election year.

At the time, I spoke to my good friend from Tennessee, Senator Alexander.  I asked him to go to Sen. McConnell and say the pressure on our side to change the rules after all these unprecedented number of filibusters was going to be large. I said to Senator Alexander, let’s try to avoid it. But Sen. McConnell and Republicans refused all of our overtures to break the deadlock they imposed.

To be clear, Democrats changed the rules after 1,776 days of obstruction on President Obama’s nominees.  My Republican friends are contemplating changing the rules after a barely more than 70 days of President Trump’s administration.  We moved to change the rules after 79 cloture petitions had to be filed.  They are talking about changing the rules after one nominee fails to meet the 60-vote threshold. 

So, yes, Democrats changed the rules in 2013, but only to surmount an unprecedented slowdown that was crippling the federal judiciary. And we left the 60-vote threshold intact for the Supreme Court deliberately, we could’ve changed it. We had free will then just as Senator McConnell has it now. But we left the 60-vote threshold intact for the Supreme Court because we knew and know – just as our Republican friends know – that the highest Court in the land is different. Unlike with lower courts, Justices on the Supreme Court don’t simply apply the precedents of a higher court – they set the precedents. They have the ultimate authority under our constitutional government to interpret the law. Justices on the Supreme Court should be mainstream enough to garner substantial bipartisan support. Hence why we didn’t change the rules.

To me, and I think to most of my friends on the Republican side, that’s not a good enough reason to escalate the argument and break the rules for Supreme Court nominees.

Second, as I’ve mentioned: I’ve heard my Republican friends complain that Democrats are conducting the “first partisan filibuster of a Supreme Court nominee in history” – so that’s the reason they can justify breaking the rules, because Democrats are the ones taking it to a new level. Again, I have just two words for my Republican friends: Merrick Garland. The Republican majority conducted the first partisan filibuster of a Supreme Court pick when their members refused to have hearings for Merrick Garland. In fact, what the Republicans did was worse than a filibuster.

The fact of the matter is, the Republicans blocked Merrick Garland, using the most unprecedented of maneuvers. Now, we are likely to block Judge Gorsuch because we are insisting on a bar of 60 votes. We think a 60-vote bar is far more in keeping with tradition than what the Republicans did to Merrick Garland. We don’t think the two are equivalent…but nonetheless, in the history of the Scalia vacancy, both sides have lost. We didn’t get Merrick Garland. They are not getting 60 votes on Judge Gorsuch.

So we are back to square one and the Republicans have total freedom of choice in this situation.

Finally, Republicans have started to argue that because Democrats won’t confirm Judge Gorsuch, we won’t confirm anyone nominated by President Trump – so they have to break the rules right now.

That’s an easy one. I’m the Democratic Leader. I can tell you myself that there are mainstream Republican nominees who could earn adequate Democratic support.

Just look at recent history: Justices Roberts and Alito, two conservative judges who many of us on the Democratic side probably don’t agree with, both earned over 60 votes.  They got Democratic votes. While there was a cloture vote on Justice Alito, he was able to earn enough bipartisan support that cloture was invoked with over 70 votes. He got only 58 when they voted for him, but they key vote was the cloture vote.

Let’s have the president consult members of both parties – he didn’t, he didn’t with Gorsuch – and try to come up with a consensus nominee who could meet a 60-vote threshold. That’s what President Clinton did with my friend the Senator from Utah in selecting Justices Ginsburg and Breyer; it’s what President Obama did with Merrick Garland.

Of course we realize a nominee selected this way would not agree with many of our views. That’s true. But President Trump was elected president and he’s entitled by the Constitution to nominate. But Judge Gorsuch is so far out of the mainstream that the Washington Post said his voting record would put him to the right of Justice Thomas. He was selected by the Heritage Foundation and the Federalist Society without an iota of input from the Senate. There’s a better way to do this.

I know it sometimes may seem like a foreign concept in our hyperpolarized politics these days, but there is always the option of actually consulting us Democrats on a nominee and discussing a way forward that both parties can live with.

We are willing to meet anywhere, anytime.                                     

Mr. President, my friends on the other side can dredge up these old wounds. If the Republicans want to conduct a partisan, “they-started-it” exercise, I’m sure we could trace this all the way back to the Hamilton-Burr duel.

But at the end of the day, they have to confront a simple choice: are they willing to break the rules of the Senate, or can they work with us on a way forward? I, for one, hope that we can find a way to compromise. Judge Gorsuch was not a compromise. He was chosen without any consultation. So It’s not that there’s a Merrick Garland equivalency.

As my friend the Majority Leader has said, “I think we can stipulate…that in the Senate it takes 60 votes on controversial matters.” If anything is a controversial, important matter, it’s the selection of the Supreme Court. And Senator McConnell has repeatedly stood for the need, the rightness of 60 votes on important and controversial issues.

If Senator McConnell wants to go back on his word; and Republicans decide to go along with him, it won’t be because Democrats started it, because that’s not true…

…it won’t be because Democrats won’t confirm any President-Trump nominated Justice, because that’s not true…

…it will be because they choose to do so – and they will have to bear the unfortunate consequences.