Schumer Floor Remarks on the Nomination of Judge Gorsuch to Serve on the Supreme Court
Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks outlining concerns regarding Judge Neil Gorsuch’s nomination to the Supreme Court. Below are his remarks as delivered:
Madam President, I rise today on a matter of great importance to everyone in this body and everyone in America: the future of the Supreme Court.
Last night, the President nominated Judge Neil Gorsuch.
We in the Senate now have a constitutional duty to examine his record robustly, exhaustively, and comprehensively, and then advise and consent if we see fit. We have a responsibility to reject it if we do not.
We Democrats will insist on a rigorous, but fair, process.
There will be 60 votes for confirmation. Any one member can require it; many Democrats already have. And it is the right thing to do.
On an subject as important as a Supreme Court nomination, bipartisan support is essential, and should be a prerequisite – “60-votes” does that.
This is nothing new. It was a bar met by each of President Obama’s nominations.
In my mind, 60 votes is the appropriate way to go: whether there is a Democratic President or Republican President, Democratic Senate or Republican Senate.
Madam President, because 60 votes is essential, those who say that at the end of this process there are only two possible results -- that the Senate will confirm this nominee or Republicans will use the nuclear option to change the rules of the Senate – are dead wrong.
That is a false choice.
If this nominee cannot meet the same standard that Republicans insisted upon for President Obama’s Supreme Court nominees – 60 votes in the Senate – then the problem lies not with the Senate, but with the nominee.*
The answer will not be to change the rules of the Senate, but to change the nominee to someone who can earn 60 votes.
60 votes produces a mainstream candidate…and the need for a mainstream, consensus candidate is greater now than ever before because we are in new territory in two major ways:
First, because the Court under Chief Justice Roberts has shown increasing drift to become a more and more pro-business, special interest Court, siding more and more with corporations and employers and special interests over working and average Americans. This in an environment where starkly unequal concentrations of wealth and ever-increasing corporate power – aided and abetted by the Citizens United decision – has skewed the playing field even more decisively towards special interests and away from the individual citizen. A mainstream nominee would help reverse that trend, not exacerbate it.
And second, given that this Administration, at least at its outset, seems to have less respect for the rule of law than any in recent memory, and is challenging the Constitution in unprecedented fashion, there is a special burden on this nominee to be an independent jurist.
Let me go over each point.
First, we have a special responsibility to judge whether or not this nominee will further tip the scales on the Court in favor of big business and powerful special interests instead of the average American.
…Because over the past two decades, this Court has shifted dangerously in that direction.
According to a study by the Minnesota Law Review, the Roberts Court has been the most business-friendly Supreme Court since WWII. It is the most Corporate Court in over 70 years.
It was pro-corporate when it frequently favored forced arbitration as a way to settle disputes, a process that limits the ability for individuals to form a class and collectively go after large corporate interests.
It was pro-corporate when it repeatedly refused to hear legitimate cases where individuals have been harmed by faulty products, discriminatory practices, or fraud.
And it was pro-corporate when it came down with one of the worst decisions in the history of the Court, Citizens United.
By equating money with speech, the Citizens United decision cut right at the heart of the most sacred power in our democracy, the franchise of our citizens.
It has poisoned our politics by allowing dark money to cascade into the system, entirely undisclosed.
With absolutely no precedent, the Roberts Court came up with the theory that money necessarily equals speech, and under the First Amendment, you’re allowed to put your ad on TV 11,000 times to drown out all others, especially average Americans. That dampens the power of their voices; that dilutes the power of their votes.
The Citizens United decision was the worst decision in one hundred years…and it is the embodiment of this new era of the Corporate Court.
At a time when massive inequality plagues our economy, dark money floods our politics, and faith in our institutions is low, this rightward shift in the Court is an existential threat to our democracy.
Now more than ever, we require a Justice who will move the Court back in the direction of the people; not only because that’s what the law requires but because that’s what our system of government requires -- summed up, of course, by President Lincoln’s declaration that it is “A government of, by, and for THE PEOPLE.”
And second, Madam President, we must insist upon a strong, mainstream, consensus candidate because 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.
…because again, this Administration seems to have little regard for the rule of law than almost any other and is likely to test the Constitution in ways it hasn’t be challenged for decades.
Just two weeks in, the new Administration has violated our core values, challenged the separation of powers, stretched the bounds of statute, and tested the very fabric of our Constitution in unprecedented fashion. The President has questioned the integrity of our elections without evidence, issued legally and constitutionally dubious executive actions like those on immigration and refugees, and fired his Acting Attorney General for maintaining her fidelity to the law rather than pledging obedience to the President. For that, the White House accused her of betrayal.
Acting Attorney General Sally Yates offered her professional, legal opinion…but because it contradicted the Administration’s position, she was fired – even though the very purpose of the Department of Justice is to be an independent check on the Administration.
We’re just 13 days into this new Administration. How many more of these dismissals will take place over the next four years?
This is not even close to normal. Many of us have lived through the first few weeks of several Administrations of both parties. This is not even close normal.
Now more than ever, we need a Supreme Court Justice who is independent; who eschews ideology; who will preserve our democracy, protect fundamental rights, and will stand up to a President who has already shown a willingness to bend the Constitution.
The Supreme Court is now the bulwark standing between a President who has little regard for the law, for the separation of powers, for American ideals, and for the power of the legislative branch … and the sanctity of this nation.
Now more than ever, we require a Justice who will fulfill the Supreme Court’s role in our democracy as a check and a balance on the other branches of government.
Madam President, because this President has started out in such a fundamentally undemocratic way, we have to examine this nominee closely.
As to the nominee himself, I have serious concerns about how he measures up on those two great concerns I just described.
First, Judge Gorsuch has consistently favored corporate interests over the rights of working people:
- He repeatedly sided with insurance companies who wanted to deny disability benefits to employees.
- In employment discrimination cases, Bloomberg found he has sided with employers the great majority of the time; in one of the few cases he sided with an employee, it was a Republican woman who alleged she was fired for being a conservative.
- He wrote in an article in 2005 that securities class actions were just tools for plaintiffs’ lawyers to get ‘free ride[s] to fast riches,’ ignoring the fact that these lawsuits often bring justice to thousands and thousands of people who have no power without the class action suit.
- And on money in politics, he seems to be in the same company as Justices Thomas and Scalia -- willing to restrict the most common-sense contribution limits.
It seems that President Trump, who said he would be for the working man and woman, has not chosen someone who routinely sides with the average American.
Instead, it seems he has selected a nominee to the Supreme Court who sides with CEOs over citizens.
And second, Judge Gorsuch lacks a record of demonstrating the kind of independence the Court desperately needs right now:
- He has shown a tendency to let ideology influence his decisions, criticizing “liberals” for turning to the courts to advance policy.
- The irony is – those who blame “liberals” for legislating through the courts are usually activist judges themselves. In recent years, conservative jurists have proven to be the true activists, completely reimagining the scope of the First Amendment through Citizens United, gutting a key provision of the Voting Rights Act, and attempting to roll back Roe vs. Wade.
- He has shown disdain for the use of the courtroom to vindicate fundamental rights—a viewpoint that should be anathema to anyone in the legal system, but is particularly inappropriate for someone who seeks a seat on the highest court in the land. Because of this, women are duly worried about the preservation of their rights and equality, as is the LGBT community. With an Administration that has already challenged fundamental American rights, and will certainly do so again, the courtroom MUST be a place where those rights can be vindicated.
As Senators, we are endowed with an awesome power to judge whether this man has the right to a title that is higher than all others in our judicial system – the title of “Justice.”
Therefore, we must be absolutely certain that this person is a strong, mainstream candidate…who has respect for the rule of law and the application of basic constitutional rights to all Americans, a deference to precedent, a non-ideological approach to the Court, and the resolve to be a bulwark against the Constitutional encroaches of this Administration.
Judge Neil Gorsuch, throughout his career, has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.
Given that record, I have very serious doubts that Judge Neil Gorsuch is up to the job.
Madam President, the Supreme Court now rests in a delicate balance. We cannot allow it to be further captured by corporate influence or bullied by Executive overreach.
The Senate has a responsibility to weigh this nominee with the highest level of scrutiny; to have an exhaustive, robust, and comprehensive debate on Judge Gorsuch’s fitness to be a Supreme Court Justice.
We Democrats will ensure that it does.
*Leader Schumer later clarified this statement:
I am coming back to the floor to correct the record about my earlier comments, when I said that Republicans “insisted” on 60 votes for each President Obama’s nominees.
60 votes is a bar that was met by each of President Obama’s nominees. At the time, there was no need for a cloture vote, because we knew that each of them would garner over 60 votes.
I think it’s important to clarify because I believe 60 votes is the right standard for this nominee – not because they did it to us or we did it to them – but because 60 votes produces a mainstream candidate, and as I laid out earlier, the Supreme Court requires a mainstream candidate now more than ever.
