Schumer Floor Remarks on the Upcoming Cloture Vote on the Nomination of Judge Neil Gorsuch
Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks highlighting the danger of changing the Senate rules and further explaining his opposition to confirming Judge Neil Gorsuch to the Supreme Court. Below are his remarks:
Now, Mr. President, as each hour brings us closer to cloture vote on the nomination of Judge Neil Gorsuch to the Supreme Court, and a potential rules change if that vote fails, I rise this afternoon to entreat my friend the Majority Leader to step back from the brink.
As I and so many of my colleagues have made clear, we Democrats have principled reasons to vote against this nominee on tomorrow’s cloture vote.
- First, he has instinctively favored corporate interests over average Americans.
- Second, he hasn’t shown a scintilla of independence from President Trump.
- And third, Judge Gorsuch, based on his record and history, has a deeply-held far-right, special interest judicial philosophy that is far outside the mainstream.
- He was selected off a list developed by the very hard-right, special interest Heritage Foundation and Federalist Society. The Washington Post, after analyzing his decisions on the 10th Circuit, concluded that Judge Gorsuch may be THE most hard-right, conservative Justice on the bench, to the right of even Justice Thomas.
It may seem abstract to many Americans, but Judge Gorsuch’s judicial philosophy matters a great deal – it will affect dozens of decisions and decades of jurisprudence that could have far-reaching consequences on the lives of average Americans.
As Emily Bazelon in the New York Times put it: “…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.”
If that philosophy becomes the majority view on the Supreme Court…average Americans are in big, big trouble.
The prospect concerns almost every Democrat here in this body, enough to prevent cloture on Judge Gorsuch’s nomination tomorrow.
This leaves the Majority Leader and my Republican friends with a choice: break the rules of the Senate or sit down with we Democrats and the President to come up with a mainstream nominee who can earn enough bipartisan support to pass the Senate.
We Democrats believe the answer isn’t to change the rules, it’s to change the nominee, as presidents of both parties have done when a nominee fails to earn confirmation. Instead, my Republican friends seem intent on breaking the rules for Judge Gorsuch, and are trying to find reasons to justify it.
The truth is, each side can blame the other.
We believe they’re more in the wrong; they believe we’re more in the wrong. The game of pointing fingers and “they started it” can go back and back and back to the very founding of the Republic.
- If my Republican friends think they have to change the rules because this blame game has gotten so far out of hand that Democrats will never pass a Republican-nominated Supreme Court Justice, I’d remind them of Justices Alito and Roberts – two conservatives who nonetheless passed the Senate having met a 60-vote bar. That was during a pretty contentious time as well.
- If my Republican friends think that what we Democrats did in 2013 was so wrong and that’s reason enough to break the rules, I’d remind them the only reason we changed the rules was because the Republican Minority in the Senate had forced cloture petitions to be filed on more nominees under President Obama’s first 5 years than in the 225 years before him combined. They filed more cloture petitions against President Obama’s nominees than all the cloture petitions filed from George Washington through George W. Bush.
- When Democrats changed the rules, however, we purposely left the 60-vote bar for the Supreme Court intact, because we knew – as the Republicans know – that the Supreme Court is different. Justices on the Supreme Court don’t simply apply precedents of a higher court, they set the precedents. That’s why Justices should be mainstream enough to garner substantial bipartisan support. If the Majority Leader breaks the rules tomorrow, and that would be his choice, he would be forever unwinding that important principle, erasing the last shred of bipartisanship in the Senate confirmation process.
- If my Republican friends think a filibuster on Judge Gorsuch is so wrong that they have cause to break the rules, I’d remind them that almost every one of them lined up behind the Majority Leader when he vowed, mere hours after the death of Justice Scalia, that President Obama would not get to fill a Supreme Court seat despite 11 months left in his Presidency. That was much worse than a filibuster. Even my friend the Republican Senator from Tennessee called it “audacious.” But I think Rep. Adam Schiff of California said it best, “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”
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 Republicans did to Merrick Garland. The Majority Leader himself has stipulated – this is his quote, Mitch McConnell’s quote – that “in the Senate…it takes 60 votes on controversial matters.” On the other hand, there is absolutely no precedent, rule, tradition, or custom that can justify what the Republicans did to Merrick Garland. None.
The two are not equivalent…Over the long history of partisan combat over judicial nominations, of course there is blame on both sides. We don’t believe the blame should be equally shared between Republicans and Democrats. The Republican Party has been far more aggressive in deploying new tactics and escalating old ones to fight the nominees of the president of the opposing party. The Republican Party has been the far more aggressive party in their selection of judicial candidates – picking Judges who have an ideology closer to the conservative extremes of American politics, while Democrats have tended to select candidates closer to the center. Keep this in mind: the last time a Republican-controlled Senate confirmed the Supreme Court nomination of a Democratic President was 1895.
Let me repeat that amazing fact: the last time a Republican-controlled Senate confirmed the Supreme Court nomination of a Democratic President was 1895.
So, Mr. President, we can argue endlessly about where, and with whom, this all started. Was it the Bork nomination -- which received a vote in the Democratic Senate by the way -- or was it the obstruction of judges under President Clinton? Was it when Democrats blocked a few judges under President Bush, or when Republicans forced Democrats to file more cloture petitions in five years of President Obama’s presidency than during all other presidencies combined? Was it Judge Garland or Judge Gorsuch?
Wherever we place the starting point of this long, twilight battle over the judiciary, we are now approaching its end point. We are nearing the final hour. And the stakes are considerable.
After the cloture vote on Judge Gorsuch: Democrats will have been denied Merrick Garland, due to tactics we felt were unfair, and Republicans will have been denied Judge Gorsuch because of tactics they think are unfair. Our two parties have traded bitter blows. In the tortured history of the Scalia vacancy, the debate has been saturated with contradictions. But in a very real sense -- even though each side thinks their side is more right than the other – neither side is happy with how we got here.
And now we are standing on the brink of an irrevocable change to the way this body conducts business. As the Majority Leader once said, changing the rules is a bell that is very hard to un-ring. As the clock ticks steadily towards tomorrow…what are we going to do?
I, for one, would like to see us step back from the brink. As the Democratic Leader, I still hope I can sit down with the Republican Leader and find a way out of this pernicious cycle. I believe that, as Leaders of our respective caucuses, it is at least up to us to at least try…for the sake of the Senate.
The Republican Leader and I disagree on a great many things, but we agree upon the importance of the Senate in American political life.
We can decide, today, to commit to solving this problem. Each side can stop pointing fingers. Each side can lay down their arms. Each side can put aside the resentments built up after years of trench warfare on nominees. We can decide, today, to talk about a way out of this impasse instead of changing the rules.
We’ve both lost Supreme Court nominees; we shouldn’t also lose a longstanding rule of the Senate that encourages our two parties to work together to fulfill one of the Senate’s most important functions.
So the option to sit down with us Democrats and talk about a new nominee that can gain sufficient bipartisan support remains on the table. I hope my friend the Republican Leader thinks about where we’re headed, and takes a moment to let Reason and Prudence prevail over Rancor and Haste. Just as the Majority Leader holds the power to exercise the nuclear option, he also has the power to avoid it.
If the Majority Leader is willing to cooperate in a bipartisan way; if he is willing to sit down with us in good faith to try to find a way out; he will find an open door and an open mind…and maybe, maybe we can, for the moment, avoid an outcome that no Senator from either side wants to see.
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