Schumer Floor Remarks on Judge Gorsuch and TrumpCare

Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks on the Senate floor regarding Judge Neil Gorsuch’s confirmation hearing and House Republicans’ attempt to rush through their ACA replacement bill. Below are his remarks:

Mr. President, yesterday Judge Neil Gorsuch went through over eleven hours of questioning in the Judiciary Committee. As expected, he used the opportunity to speak at length about his knowledge of case law, hiding behind precedents rather than giving an impression of his actual views.

As expected, his supporters are saying that Judge Gorsuch was erudite, polished, homespun. But none of this matters compared to the real purpose of hearings: the find out a nominee’s views and what kind of Judge he will be, not how his repartee from the bench would sound.                           

For eleven hours, he looked like he was playing dodgeball with the Senate Judiciary Committee, bending over backwards to avoid revealing anything that might constitute a judicial philosophy or give hints about how he’d approach the legal issues of our day. That, to me, is far more important than any superficial impressions he may have left

He dodged questions on previous cases like Citizens United, Roe vs. Wade, and Brown vs. Board of Education; he dodged general questions on dark money in politics, LGBTQ rights, and the constitutionality of a Muslim ban. He did manage to wax poetic about the significance of a judge's robe and the humility that it brings. He said it reminds us that "ours is a judiciary of honest black polyester." Well, if he were truly humble, he would realize the augustness of this position and answer questions directly. Judge Gorsuch’s testimony yesterday was replete with these kind of humble metaphors and homespun stories but pitifully short on substance – which is what really matters.                                                        

Mr. President, the hearings this week are starting to have an element of farce. The Republicans ask softball questions while we Democrats endeavor to get the Judge to offer a meaningful response on one – any – legal issue, but are met with the common refrains of “that’s settled law” and “I can’t prejudge” and “gee Senator, my personal views have no place here.”

Let me repeat: there is no legal precedent, rule or even logic for failing to answer questions that don’t involve immediate and specific cases before the court. Is Judge Gorsuch hiding behind this rhetoric because he doesn’t want people to know his views?

After for days of this kabuki theater, the press will write that Judge Gorsuch was smooth and well-spoken. But I doubt that, even at the end of the hearing process, we’ll have any greater indication of his views of jurisprudence. Will we know any better than we do today what kind of Justice he’ll be on our nation’s highest court?                                     

You know, we've seen this before, Mr. President. It wasn't all that long ago that another charming, polished, erudite judge named John Roberts came before the Committee, impressing lawmakers while playing the role of a model jurist. He displayed a similar reluctance to answer specific questions. But he assured us all that he was a judge who was free from the biases of politics and ideology -- that in his words, he simply "called balls and strikes." We were duped. Judge Roberts showed his true activist colors as soon as he got to the bench and dragged the entire court sharply to the right, ruling consistently in favor of wealthy special interests and powerful corporations. This whole episode with Judge Gorsuch feels like a Roberts re-run. And if his voting record is any indication, according to the New York Times survey, he will be more conservative – even more conservative than Justice Roberts.

Mr. President, this is not how the hearing process is supposed to work. Though it has become the practice for Supreme Court judges to elude specific questions, it is not in the best interests of our country to elevate a cipher to the Supreme Court. We don’t want the qualifications for Senate confirmation to be an ability for skillful evasion. The hearing process cannot accomplish what it’s designed to if the nominee refuses to engage on matters of legal substance.

If any one doubts that Judge Gorsuch doesn’t have strong views – that he’s not simply a caller of balls and strikes – just look at the way he was chosen. He was supported and pushed forward by the Heritage Foundation and Federalist Society. Do they just call balls and strikes, or do those two groups have an avowed interest in moving the judiciary far to the right? He was supported by billionaires like Mr. Anschutzm who have a similar desire. Does anyone think the Federalist Society would choose someone who just “called balls and strikes” when they’ve been dedicated for a generation to moving the courts to the far right? If anyone doubts that Judge Gorsuch could be an activist judge, with strong conservative views, eschewing the interests of average people, just look at how he was selected – by the Federalist Society, by the Heritage Foundation, not by average American jurists.                                                                      

On another matter, Mr. President, TrumpCare.

As we speak, House Republican leadership is desperately trying to whip enough votes to pass their bill tomorrow, making sweetheart deals to sway recalcitrant members. It’s funny that all the changes House Republicans have made this past week don’t even attempt to address the real problems with the bill – that 24 million fewer Americans will have coverage, that premiums will go up. In fact, the changes they are making make TrumpCare even more cruel in an attempt to win conservative House votes – and still many of them don’t think it’s cruel enough yet. In their rush, they included language in their manager’s amendment that would exclude 7 million or so veterans from eligibility for the tax credits in the bill. 7 million veterans.                                                                            

That’s what happens when you try to rush a bill through.

When Democrats were in the Majority and working through health care, we debated the bill over the course of a whole year. We had one of the longest committee hearing and amendment processes in recent memory. Even then, Republicans criticized us for trying to jam it through. “Read the bill” they’d chant. Now, Republicans are trying to do in two weeks what we spent one year on, because the time was required.

My friend the distinguished Majority Leader said that he hopes to have TrumpCare brought up and passed through the Senate by the end of next week. No committee process. Potentially no CBO score. I’d guess that Senate Republicans are negotiating a substitute bill behind closed doors right now to meet that accelerated, speedy, and reckless timeline.

When you’re talking about a drastic reformation of our health care system, one sixth of our economy, that’s breathtakingly irresponsible and rankly hypocritical. When will Democrats get to view the substitute bill? When will there be a CBO score before Democrats and Republicans have to vote on it in the Senate? We don’t know. But rushing it through in this fashion, as the Majority Leader promised, is unwise and unfair -- to Democratic Senators and far more importantly to the American people.

It is also a direct contradiction to how then-Minority Leader spoke about health reform in 2009. He said, “we shouldn't try to do it in the dark. And whatever final bill is produced should be available to the American public and to the members of the Senate…for enough time to come to grips with it. And there should be and must be a CBO score.” I certainly hope he follows his own advice from 2009, now that he’s the Majority Leader.                                             

Now, my Republican friends like to claim this isn’t the end of the story on health care. They claim they can pass a “third prong” later on down the road. But Republicans in the House and Senate should know this: there is no third prong. It’s a fantasy. Any legislation outside of reconciliation requires 60 votes, and Democrats will not help Republicans repeal and replace the Affordable Care Act -- today, tomorrow, or sixth months from now. This bill – TrumpCare – is your one shot.

I think that’s why House Republicans have tried to jam some extra policy changes onto their bill, like the Medicaid work requirement and the restrictions on abortion, because they know they won’t be able to later on – and they need more conservative votes to pass this bill tomorrow. Mr. President, this approach has a real problem. There’s a serious question as to whether these changes are budgetary changes or policy changes. If they’re policy changes, they will not meet the Senate’s standard under reconciliation – known as the Byrd rule -- and can be stricken from the bill. Of particular vulnerability, my Republican colleagues, are provisions like the Medicaid work requirement and the restrictions on abortion.

House Republicans should hear this before they vote: those provisions that you think might help you vote “yes” on this bill may not survive. Factor that into your vote.

So Mr. President, ahead of the vote tomorrow in the House, I just want to say to my Republican colleagues – and I have sympathy, although I don’t agree, I vehemently disagree – but I know you feel caught between a rock and hard place, between the prospect of failing to fulfill a shrill and not-thought-through campaign pledge and a bill that would badly hurt millions of Americans, particularly your voters – I say to you: there is a way out.

Drop your efforts to repeal the Affordable Care Act, and Democrats will work with you on serious proposals to improve the existing law. Drop TrumpCare, come to us with some ideas on how to improve the ACA, and we’ll sit down with you and try to figure out what’s best for the country. You can avoid this disaster of a bill…TrumpCare, which will result in higher costs, less care and 24 million fewer Americans with health coverage.

Turn back before it’s too late.